Copar Pumice Company, Inc. v. Morris, No. CIV 07-0079 JB/ACT.

CourtUnited States District Courts. 10th Circuit. District of New Mexico
Writing for the CourtJames O. Browning
Citation632 F.Supp.2d 1055
PartiesCOPAR PUMICE COMPANY, INC., Plaintiff, v. Allan MORRIS, in his individual capacity, David Yantos, in his individual capacity, Mary Uhl, in her individual capacity, Debra McElroy, in her individual capacity, and Ron Curry, in his official capacity as Secretary of the New Mexico Environment Department, Defendants.
Decision Date29 March 2008
Docket NumberNo. CIV 07-0079 JB/ACT.
632 F.Supp.2d 1055
COPAR PUMICE COMPANY, INC., Plaintiff,
v.
Allan MORRIS, in his individual capacity, David Yantos, in his individual capacity, Mary Uhl, in her individual capacity, Debra McElroy, in her individual capacity, and Ron Curry, in his official capacity as Secretary of the New Mexico Environment Department, Defendants.
No. CIV 07-0079 JB/ACT.
United States District Court, D. New Mexico.
March 29, 2008.

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COPYRIGHT MATERIAL OMITTED

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Holly A. Hart, Kristin L. Davidson, Scheuer, Yost & Patterson, Santa Fe, NM, Attorneys for the Plaintiff.

Jerry A. Walz, Walz and Associates, Cedar Crest, NM, Attorneys for the Defendants.

MEMORANDUM OPINION AND ORDER

JAMES O. BROWNING, District Judge.


THIS MATTER comes before the Court on the Defendants' Motion for Summary Judgment, filed June 24, 2007 (Doc. 28). The Court held a hearing on September 19, 2007. The primary issues are: (i) whether the terms and conditions of the Air Quality Permit issued by the New Mexico Environment Department ("NMED") constitute consent to conduct a warrantless search pursuant to the terms of the state statute and permit; (ii) whether, if consent was given through the permit, Morris and Yantos' search and seizure exceeded the consent given in the permit; and (iii) whether the NMED inspectors received consent to conduct the relevant search and seizure from Copar Pumice employee, Ismael Gomez. Because the permit constitutes consent to conduct a warrantless search, but because there is a genuine issue of material fact whether the NMED inspectors' search went beyond the consent that the permit provided, and because there is a genuine issue of material fact whether Ismael Gomez consented to the search and seizure that took place, and whether he possessed actual or apparent authority to give such consent, the Court will grant in part and deny in part the Defendants' motion for summary judgment.

FACTUAL BACKGROUND

Copar Pumice is engaged in the business of pumice mining. See Amended Complaint for Violation of Civil Rights ¶ 4, at 2, filed July 3, 2007 (Doc. 36)("Amended Complaint"). In 2006, and at all times material to this lawsuit, Copar Pumice was mining pumice and operating a screening plant at a mine located on United

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States Forest Service lands in the area of Jemez Springs, New Mexico. See id. Adrian Salazar is the plant manager of Copar Pumice's El Cajete mine. See Plaintiffs Memorandum in Opposition to Defendants' Motion for Summary Judgment, filed July 16, 2007 (Doc. 40)("Plaintiff's Response"), Affidavit of Adrian Salazar, Exhibit B ¶ 1, at 1 (executed July 13, 2007)("Salazar Aff.").

Copar Pumice's operation of the El Cajete pumice screening facility is subject to the terms of New Mexico's Air Quality Control Act, regulations adopted pursuant to the Act, and Air Quality Permit No. 899-M-2 issued by the NMED's Air Quality Bureau. See Memorandum in Support of Defendants' Motion for Summary Judgment on the Basis of Qualified Immunity, filed June 25, 2007 (Doc. 33)("Defendants' Motion for Summary Judgment on the Basis of Qualified Immunity"), Exhibit C, Air Quality Permit, at 1. The NMED Air Quality Permit was issued to Copar Pumice pursuant to the New Mexico Air Quality Control Act and the regulations adopted thereunder. See Air Quality Permit at 1. Specifically, the NMED Air Quality Permit issued to Copar Pumice states that it is issued "pursuant to the Air Quality Control Act (Act) and regulations adopted pursuant to the Act, including Title 20, New Mexico Administrative Code (NMAC), Chapter 2, Part 72, (20 NMAC 2.72), Construction Permits, Subpart II and is enforceable pursuant to the Act and the air quality control regulations applicable to this source." Air Quality Permit at 1.

Specific conditions were imposed in the permit. Pursuant to the NMED Air Quality Permit, Copar Pumice's operation of the pumice screening facility was subject to specific enumerated conditions, including:

3. Recordkeeping

Daily records of the hours and days of operation, the daily production rates, and the frequency of the application of water or equivalent control measures shall be maintained. This information shall be retained at the plant site for the most recent three (3) year period and shall be made available to Department personnel upon request.

Condition 3 has been placed in the permit in accordance with 20 NMAC 2.72, Sections 210.B.4 and 210.F, to allow the Department to determine compliance with the terms and conditions of the permit.

Compliance with Condition 3 will be based on Department inspection of records and logs.

Air Quality Permit at 4 (emphasis in original). Permit Condition No. 9, entitled "Right to Access Property and Review Records," states:

9. Right to Access Property and Review Records.

The Department shall be given the right to enter the facility at all reasonable times to verify the terms and conditions of this permit. The company, upon request from an authorized representative of the Department, shall produce any records or information necessary to establish that the terms and conditions of this permit are being met.

Condition 9 has been placed in the permit in accordance with 20 NMAC 2.72, Sections 210.B and 210.F, and 20 NMAC 2.73, to allow the Department to determine compliance with the terms and conditions of the permit.

Compliance with Condition 9 will be based on Department inspections of the facility, production of records and information required to be maintained, and non-restricted entry to the property as defined in this condition.

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Air Quality Permit at 8 (emphasis in original). Conditions numbers 3 and 9 were "placed in the permit . . . to allow the Department to determine compliance with the terms and conditions of th[e] permit." Air Quality Permit at 4, 8.

On August 28, 2006, as a result of a citizen complaint, NMED Environmental Compliance Specialists, Morris and Yantos, arrived at the Jemez Springs mine to conduct an inspection of Copar Pumice's pumice screening facility. See Memorandum in Support of Defendants' Motion for Summary Judgment, filed June 24, 2007 (Doc. 29)("Motion for Summary Judgment"), Exhibit B, Affidavit of Allan Morris ¶ 4, at 1 (executed May 23, 2007)("Morris Aff."). Morris and Yantos are Environmental Compliance Specialists employed by the State of New Mexico Air Quality Bureau. See Morris Aff. ¶ 1, at 1; Motion for Summary Judgment, Exhibit C, Affidavit of David Yantos ¶ 1, at 1 (executed on May 23, 2007)("Yantos Aff."). The two NMED employees conducted a compliance inspection of Copar Pumice's pumice screening facility. See Plaintiff Copar Pumice Company, Inc.'s Response to Defendants' Motion for Summary Judgment on the Basis of Qualified Immunity at 1-2, filed July 16, 2007 (Doc. 39).

At the time the NMED employees arrived at Copar Pumice's facility, Salazar, the plant manager, was away from the mine at a dental appointment. See Amended Complaint ¶ 10, at 3. The Defendants did not have a warrant. See Complaint ¶ 11, at 3. The inspection took place on a Monday from approximately 3:00 p.m. until 4:55 p.m. See Morris Aff. ¶¶ 5, 22 at 3, 6.

When Morris and Yantos arrived at the facility, there were only two employees working at the mine. See Plaintiffs Response ¶ 5, 6, at 4. One of the Copar Pumice employees at the site during the inspection was Ismael Gomez, who is employed as a laborer and front-end loader operator. See id., Exhibit A, Affidavit of Ismael Gomez ¶ 1, at 3 (executed July 12, 2007)("I. Gomez Aff."). Ismael Gomez had been employed by Copar Pumice for six months when the inspection occurred. See Salazar Affidavit ¶ 7, at 1 (executed July 13, 2007)("Salazar Aff.").

Ismael Gomez is a Mexican national who is authorized to work in the United States. See I. Gomez Aff. ¶¶ 1, 2 at 1. Copar Pumice contends that Ismael Gomez speaks Spanish. See id. ¶ 4, at 1. Copar Pumice also alleges that he does not speak English and does not understand English, although he knows a few words in English. See id. ¶ 4, at 1.

The other Copar Pumice employee at the site during the inspection was Elias Gomez, who is also employed as a laborer and loader operator. See Salazar Aff. ¶ 10, at 2. Copar Pumice contends that neither Ismael Gomez nor Elias Gomez have supervisory authority at the mine, have any record-keeping functions, or have any legal authority to grant or deny access to inspectors. See id.

Morris and Yantos approached Ismael Gomez. See Motion for Summary Judgment on the Basis of Qualified Immunity ¶ 22 at 7. The Defendants contend that Ismael Gomez was wearing a shirt with the names "Copar" and "Ismael" on it. Motion for Summary Judgment ¶ 9, at 4. The Defendants contend that they identified themselves as employees of the NMED Air Quality Bureau and informed Ismael Gomez that they were there to conduct a compliance inspection. See id. ¶ 9, at 4. The Defendants also contend that they presented their identification cards to Ismael Gomez. See Morris Aff. ¶ 7, at 2. The Defendants contend that Ismael Gomez informed Morris and Yantos that he was employed by Copar Pumice, that the

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plant manager was not present, and that the manager was not reachable by phone. See Motion for Summary Judgment ¶ 10, at 4.

The Defendants assert that Morris and Yantos asked Ismael Gomez if it was permissible for them to conduct the inspection without a company escort, to which he agreed. See id. ¶ 11, at 4; Morris Aff. ¶ 14, at 3. The Defendants allege that Morris asked Ismael Gomez if he knew where any of Copar Pumice's operational records were located and that Ismael Gomez stated that he thought that some of the records would be with the plant manager in his truck. See Motion for Summary Judgment ¶ 12, at 4; Morris Aff. ¶ 15, at 3. The Defendants state that Morris then asked Ismael Gomez if he knew where there might be records at the site and that Ismael Gomez responded by pointing to one of the two trailers at the site. See Motion for...

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1 practice notes
  • Maralex Res., Inc. v. Jewell, Civil Action No. 15–cv–01893–CMA
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • October 19, 2017
    ...contract), vacated on other grounds , 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947) ; see also Copar Pumice Co. v. Morris , 632 F.Supp.2d 1055, 1079–80 (D.N.M. 2008). Maralex agreed that the BLM shall have the right of supervision over all operations within the CA under which the Tribe i......
1 cases
  • Maralex Res., Inc. v. Jewell, Civil Action No. 15–cv–01893–CMA
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • October 19, 2017
    ...contract), vacated on other grounds , 330 U.S. 800, 67 S.Ct. 857, 91 L.Ed. 1259 (1947) ; see also Copar Pumice Co. v. Morris , 632 F.Supp.2d 1055, 1079–80 (D.N.M. 2008). Maralex agreed that the BLM shall have the right of supervision over all operations within the CA under which the Tribe i......

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