Sierra Club v. NEW MEXICO MINING COM'N

• Decision Date: 20 December 2002
• Docket Number: No. 26,904.,26,904.
• Citation: 61 P.3d 806,2003 NMSC 5,133 N.M. 97
• Parties: RIO GRANDE CHAPTER OF THE SIERRA CLUB, Plaintiff-Petitioner, v. NEW MEXICO MINING COMMISSION, Defendant-Respondent, and New Mexico Energy, Minerals, and Natural Resources Department, Mining and Minerals Division, and Copar Pumice Co., Inc., Intervenors-Respondents.
• Court: New Mexico Supreme Court

61 P.3d 806

133 N.M. 97

2003 NMSC 5

RIO GRANDE CHAPTER OF THE SIERRA CLUB, Plaintiff-Petitioner, v. NEW MEXICO MINING COMMISSION, Defendant-Respondent, and New Mexico Energy, Minerals, and Natural Resources Department, Mining and Minerals Division, and Copar Pumice Co., Inc., Intervenors-Respondents.

No. 26,904.

Supreme Court of New Mexico.

December 20, 2002.

Rehearing Denied January 7, 2003.

Douglas W. Wolf, Douglas Meiklejohn, New Mexico Environmental Law Center, Santa Fe, NM, for Petitioner, Rio Grande Chapter of the Sierra Club.

Patricia Madrid, Attorney General, Patrick T. Simpson, Assistant Attorney General, Santa Fe, NM, for Respondent, New Mexico Mining Commission.

Ted Apodaca, Special Assistant Attorney General, for Intervenor-Respondent, New Mexico Energy, Minerals, and Natural Resources Department, Mining and Minerals Division.

Louis W. Rose, Carolyn A. Wolf, Montgomery & Andrews, P.A., Santa Fe, NM, for Intervenor-Respondent, Copar Pumice Co., Inc.

OPINION

KENNEDY, Justice.

{1} Petitioner, Rio Grande Chapter of the Sierra Club (Sierra Club), appeals from the decision in Rio Grande Chapter of the Sierra Club v. New Mexico Mining Commission, 2001-NMCA-047, ¶ 29, 130 N.M. 497, 27 P.3d 984, in which the Court of Appeals reversed the district court's decision to set aside a final order of the New Mexico Mining Commission (Commission) affirming the issuance of a revised mining permit under the New Mexico Mining Act, NMSA 1978, §§ 69-36-1 to -20 (1993, prior to 2001 amendment). Specifically, the Commission's order affirmed the decision of the Director of the New Mexico Energy, Minerals and Natural Resources Department, Mining and Minerals Division (MMD) to expand the permit area for the Las Conchas Mine, operated by Copar Pumice Co., Inc. (Copar), to include El Cajete Mine, also operated by Copar, as a "new mining unit" of an "existing mining operation," rather than requiring Copar to obtain a separate permit for El Cajete Mine as a "new mining operation." On appeal, Sierra Club asserts that: (1) the Commission's order is arbitrary, capricious, and contrary to law; and, (2) the Mining Act does not authorize the expansion of a permit area, once that area is fixed in a mining operation permit. We affirm the Court of Appeals.

FACTS AND PROCEDURAL BACKGROUND

{2} On May 4, 1998, Sierra Club petitioned the Commission to review the Director's decision pursuant to NMSA 1978, § 69-36-15(A) (1993). In those proceedings, Sierra Club argued that the Director acted contrary to the Mining Act by expanding the permit area for the Las Conchas Mine (Las Conchas) and then modifying the permit to include the proposed El Cajete Mine (El Cajete) as a new mining unit within the enlarged permit area. See NMSA 1978, § 69-36-7(D) (1997). Sierra Club claimed that El Cajete should have been subject to the more rigorous environmental safeguards applicable to a new mining operation under the Mining Act. See NMSA 1978, § 69-36-12(A) (1993). The parties stipulated to the following facts before the Commission.

{3} On November 18, 1987, Copar filed a plan of operation with the United States Department of Agriculture's Forest Service ("Forest Service") to operate a thirty-three acre open-pit block pumice mine (Las Conchas) in the Santa Fe National Forest. The plan of operation, with modifications to mitigate potential environmental impacts from the mining operation, was approved by the District Ranger on January 4, 1989. Las Conchas was permitted by the Forest Service at thirty-three acres. Copar began operations at Las Conchas in 1989.

{4} On July 24, 1992, Copar filed a plan of operation with the Forest Service for the proposed El Cajete open-pit pumice mine. As proposed, El Cajete encompassed 133 acres. Prior to the Forest Service's decision, Copar agreed to reduce the size of the proposed mine to 83.5 acres, to address some of the concerns raised during early Forest Service analysis. El Cajete was permitted by the Forest Service at 76.2 acres.¹ Copar considered El Cajete as an expansion of its operation at Las Conchas.² Copar proposed El Cajete to expand its source of pumice.

{5} On June 30, 1994, Copar submitted a combined site assessment under the Mining Act for Las Conchas and El Cajete. See NMSA 1978, § 69-36-5 (1993).³ The assessment stated that El Cajete was a logical expansion of Las Conchas and it should be considered as an existing mine under the Mining Act. As part of the site assessment, Copar proposed a permit area that included both Las Conchas and El Cajete.

{6} MMD Acting Director John Lingo advised Copar by a letter dated July 27, 1994, that El Cajete did not then qualify as an existing mine site, but could be brought in as a revision, or new unit of an existing site, later in the permitting process. He also stated that the only other alternative would be to permit El Cajete as a completely separate and new mine site. On or about November 30, 1995, Copar requested an extension for submitting the Las Conchas/El Cajete Permit Application and Closeout Plan. Copar also asserted that El Cajete should be included in the permit application as part of the existing mining operations.

{7} On or about December 18, 1995, MMD Director Garland approved the requested extension for submitting the closeout plan for the "Las Conchas/El Cajete existing mine permit application...." By letter dated March 14, 1996, Director Garland indicated MMD had not made a decision regarding the treatment of El Cajete. The letter stated that MMD would accept a permit boundary for the Las Conchas site alone. She further advised Copar that if MMD concluded El Cajete was not a new mine, it could be brought into the Las Conchas permit at a later date. Copar questioned MMD's request that Copar exclude El Cajete from its permit application.⁴

{8} On May 15, 1996, Copar provided MMD with a permit boundary map including only Las Conchas. Copar reserved the right to appeal MMD's decision to separate El Cajete from the proposed permit boundary. On October 16, 1996, Copar filed with MMD a request to revise the permit for Las Conchas to include El Cajete within the proposed revised permit area. The permit revision package noted that the El Cajete new unit is a logical expansion of Las Conchas. In a letter dated January 31, 1997, MMD stated that the permit application of Las Conchas would be amended to include the El Cajete revision.

{9} On August 23, 1997, MMD held a public hearing for both the Las Conchas permit and revision to include El Cajete as a new unit. In October, Copar wrote to MMD and again asserted that El Cajete should be permitted as an existing unit to an existing mine. On October 23, 1997, MMD issued the permit for the Las Conchas. On March 4, 1998, MMD issued the Las Conchas permit revision to include El Cajete as a new unit.⁵ Copar began mining at El Cajete in March 1998, and continues to do so to date.

{10} After a hearing on Sierra Club's petition, the Commission entered a final order on September 28, 1998, adopting the parties' stipulated facts as its own findings and affirming the Director's decision. In the order, the Commission set forth a number of legal conclusions based on its interpretation of the Mining Act and the Mining Act Rules⁶ in support of its ultimate conclusion that El Cajete was properly permitted as a new mining unit of Las Conchas rather than as a separate new mining operation. Sierra Club filed an appeal with the district court, which set aside the Commission's order as contrary to law and ordered the Commission to vacate the Las Conchas permit revision. Copar, MMD, and the Commission appealed to the Court of Appeals, which reversed the district court and reinstated the Commission's order.

DISCUSSION

A. Standard of Review

{11} The parties devote a substantial portion of their briefs discussing the standard of review that we should apply. Initially, Sierra Club, in reliance on Atlixco Coalition v. Maggiore, 1998-NMCA-134, ¶ 23, 125 N.M. 786, 965 P.2d 370, argues that we must limit our review of the Commission's final order to determine whether the legal grounds specifically stated in the order are sufficient to sustain its ultimate conclusion. In Atlixco, the Court of Appeals stated that a "reviewing court `may not supply a reasoned basis for the agency's action that the agency itself has not given.'" Id. ¶ 20 (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)). This rule originates with United States Supreme Court case law. For example, the Court explained in S.E.C. v. Chenery that:

[A] reviewing court, in dealing with a determination or judgment which an administrative agency alone is authorized to make, must judge the propriety of such action solely by the grounds invoked by the agency. If those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis. To do so would propel the court into the domain which Congress has set aside for the administrative agency.

Id. 332 U.S. 194, 196, 67 S.Ct. 1575, 91 L.Ed. 1995 (1947); see Atlixco, 1998-NMCA-134, ¶ 20,

125 N.M. 786,

965 P.2d 370 ("[f]or the court to supply reasons for the [agency] in this manner is not consistent with the doctrine of separation of powers because it `foists upon the court what is essentially a function of the Executive Branch of government.' ") (quoting McGonigel's, Inc. v. Pa. Liquor Control Bd., 663 A.2d 890, 893 (Pa.Commw.Ct.1995)); see also Tenneco Oil Co. v. New Mexico Water Quality Control Comm'n, 107 N.M. 469, 474, 760 P.2d 161, 166 (Ct.App.1987) (stating that courts are not free to accept post hoc rationalizations of counsel in support of agency decisions, because a reviewing court must judge propriety of agency action solely on grounds invoked by agency).

{12} Sierra Club reads this line of cases too broadly. "Normally an agency rule would...