County of Santa Fe v. Public Service Co. of N.M.

• Decision Date: 26 November 2002
• Docket Number: No. 01-2096.,01-2096.
• Citation: 311 F.3d 1031
• Parties: COUNTY OF SANTA FE, NEW MEXICO, Plaintiff, v. PUBLIC SERVICE COMPANY OF NEW MEXICO; United States Of America, acting by and through the Department of Interior, Bureau of Land Management, Defendants, and Hacienda del Cerezo, Ltd.; Moss Farms, LLC; Energy Concerned Home Owners; Santa Fe Northwest Advisory Council, on behalf of themselves and The State of New Mexico, Plaintiffs-Intervenors-Appellants, v. Public Service Company of New Mexico; County of Santa Fe; the County of Santa Fe Board of County Commissioners; Richard D. Anaya; Paul Duran; Javier M. Gonzales; Joe S. Grine, Jr.; Mark Trujillo, in their capacity as Commissioners of the County of Santa Fe; The United States Bureau of Land Management, Defendants-Intervenors-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1031

311 F.3d 1031

COUNTY OF SANTA FE, NEW MEXICO, Plaintiff, v. PUBLIC SERVICE COMPANY OF NEW MEXICO; United States Of America, acting by and through the Department of Interior, Bureau of Land Management, Defendants, and Hacienda del Cerezo, Ltd.; Moss Farms, LLC; Energy Concerned Home Owners; Santa Fe Northwest Advisory Council, on behalf of themselves and The State of New Mexico, Plaintiffs-Intervenors-Appellants, v. Public Service Company of New Mexico; County of Santa Fe; the County of Santa Fe Board of County Commissioners; Richard D. Anaya; Paul Duran; Javier M. Gonzales; Joe S. Grine, Jr.; Mark Trujillo, in their capacity as Commissioners of the County of Santa Fe; The United States Bureau of Land Management, Defendants-Intervenors-Appellees.

No. 01-2096.

United States Court of Appeals, Tenth Circuit.

November 26, 2002.

COPYRIGHT MATERIAL OMITTED

Bennett Evan Cooper of Steptoe & Johnson LLP, Phoenix, AZ, for Plaintiffs-Intervenors-Appellants.

Kurt Wihl (Thomas C. Bird and Susan M. McCormack with him on the brief), Keleher & McLeod, P.A., Albuquerque, NM, for Defendants-Intervenors-Appellees.

Before LUCERO and MURPHY, Circuit Judges, and ALLEY,^* Senior District Judge.

LUCERO, Circuit Judge.

Hacienda del Cerezo, Moss Farms, Energy Concerned Homeowners, and Santa Fe Northwest Advisory Council ("intervenors") appeal the dismissal of their complaint in intervention by the district court. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.

I

This case involves a dispute among the parties stemming from the proposed construction of a powerline by the Public Service Company of New Mexico ("PNM") through part of Santa Fe County. The powerline, which PNM states is necessary to improve power transmission in the Santa Fe area, is to be built aboveground and will cross Indian, federal, and private lands. PNM began obtaining approvals for the powerline in the 1980s.

In December 1998, the County of Santa Fe ("County") filed suit in New Mexico state court against PNM seeking to enjoin construction of the powerline. The County alleged that the powerline project was in violation of its Land Development Code ("Code") because PNM had not obtained a required development permit and was not burying the powerline. After initially failing in an attempt to remove the case to federal court, PNM filed a third-party complaint against the United States Bureau of Land Management ("BLM") in the state court action. BLM then removed the case to federal court.

Intervenors—who live in the vicinity of the proposed powerline—had initially moved to intervene on February 13, 1999, and were granted permission to intervene by the district court on January 31, 2000. On February 2, 2000, pursuant to a settlement agreement between them, both the County and PNM moved under Federal Rule of Civil Procedure 41(a)(2) to dismiss with prejudice the County's claims against PNM. Despite intervenors' objections, the district court granted the motion. The settlement agreement provided that PNM was not required to obtain a development permit from the County for its project and that an amendment to the Code enacted in 1998 did not apply to the project. (1 Appellants' App. at 351.)

In February 2000, intervenors filed their complaint-in-intervention with the district court. Intervenors' complaint primarily sought (1) injunctive relief against the powerline project as an anticipatory public nuisance, and (2) a writ of mandamus requiring the County to enforce the Code against the project.¹ In particular, the complaint alleged that the County's settlement agreement "lacks any basis in fact or law." (2 id. at 361.) PNM moved to dismiss intervenors' complaint under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted. In January 2001, the district court heard argument on PNM's motion and granted it in a ruling from the bench. Intervenors now appeal the dismissal of their complaint; they also appeal the district court's approval of the County's and PNM's Rule 41 motion.

II

Because the district court dismissed intervenors' complaint under Rule 12(b)(6), we review that dismissal de novo, applying the same standards as the district court. Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236 (10th Cir.1999). In reviewing a motion for dismissal under Rule 12(b)(6), we accept as true "all well-pleaded factual allegations in the amended complaint," and those allegations are "viewed in the light most favorable to the nonmoving party." Id. As a result, a "12(b)(6) motion should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id. (quotation omitted.) "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted." Miller v. Glanz, 948 F.2d 1562, 1565 (10th Cir. 1991). We also "must indulge all reasonable inferences in favor of the plaintiff." Curtis Ambulance of Fla., Inc. v. Bd. of County Comm'rs, 811 F.2d 1371, 1374 (10th Cir.1987).

In deciding a Rule 12(b)(6) motion, a federal court may only consider facts alleged within the complaint. Miller, 948 F.2d at 1565. There are two exceptions to this rule. First, a district court may review "mere argument contained in a memorandum in opposition to dismiss" without converting the Rule 12(b)(6) motion into a motion for summary judgment. Id. (quotation omitted). Second, "the district court may consider documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity." Jacobsen v. Deseret Book Co., 287 F.3d 936, 941 (10th Cir.2002).

Because all of intervenors' claims are state law claims, we apply New Mexico state law in our analysis. We review the district court's conclusions of state law de novo. Blanke v. Alexander, 152 F.3d 1224, 1228 (10th Cir.1998). Our goal is to apply state law such that the "result obtained in the federal court should be the result that would be reached in [the state] court," and we are therefore required to follow New Mexico law "as announced by that state's highest court." Id. (quotations omitted). Where there is no decision of the state's highest court that has addressed an issue of that state's law, we "must predict how the State's highest court would rule." Stuart v. Colo. Interstate Gas Co., 271 F.3d 1221, 1228 (10th Cir.2001). "In doing so, the federal court is free to consider all resources available, including decisions of [the state's] courts, other state courts and federal courts, in addition to the general weight and trend of authority." Id. (quotation omitted). Specifically, the rulings of an intermediate appellate court of the state that are on point provide "dat[a] for ascertaining state law which [are] not to be disregarded by a federal court unless it is convinced by other persuasive data that the highest court of the state would decide otherwise." Sports Unlimited, Inc. v. Lankford Enters., Inc., 275 F.3d 996, 1000-01 (10th Cir.2002) (quoting West v. Am. Tel. & Tel. Co., 311 U.S. 223, 237, 61 S.Ct. 179, 85 L.Ed. 139 (1940)) (emphasis removed).

III

We first address the intervenors' request for a writ of mandamus. Under New Mexico law, "mandamus lies to compel the performance of an affirmative act by [an official] where the duty to perform the act is clearly enjoined by law and where there is no other plain, speedy and adequate remedy in the ordinary course of law." Lovato v. City of Albuquerque, 106 N.M. 287, 742 P.2d 499, 501 (1987). On appeal, the parties' sole dispute is whether enforcement of the Code by the County against PNM was "clearly enjoined by law" or was instead discretionary.

A

It is well-established in New Mexico that once a petitioner "show[s] that there was a valid ordinance in existence and that it was being violated, the duty cast upon the [local government] bec[omes] ministerial and subject to enforcement by mandamus." State ex rel. Edwards v. City of Clovis, 94 N.M. 136, 607 P.2d 1154, 1157 (1980).² Neither party on appeal argues that any relevant part of the Code is invalid.³ Thus, we need only address whether PNM has violated or will violate the Code through construction of its powerline. If PNM is in violation of the Code, then the County has a non-discretionary duty to enforce the Code against PNM, a duty that may be enforced through a writ of mandamus under New Mexico law.

Prior to 1998, the Santa Fe Code prescribed: "A development permit shall not be required for, and provisions of the Code shall not apply to, utility easements, utility rights-of-way, and construction of utility line extensions." (3 Appellants' App. at 710.)⁴ In November 1998, however, the County amended the language in the Code that addressed utility lines. The new provisions require a development permit for "all development; including utilities, utility easements, utility rights-of-way, and construction of utility lines and facilities." (3 id. at 924.) The amendment also requires that "[a]ll utility lines shall be placed underground" unless an exemption is granted by the Board of County Commissioners. (3 id. at 925.)

Intervenors argue that PNM's project violates the Code in one of two ways. If the project was begun before the 1998 amendment, then the project is in violation of the ordinance because PNM did not obtain a development permit and did not fully comply with other provisions of the Code. Alternatively, if the project was commenced after the enactment of the 1998 amendment, then the project is in violation of that amendment because PNM never obtained a development permit and the powerline will be built aboveground. A violation of either the pre-amendment Code or the 1998 amendment to the Code would be...