National Trust for Historic Preservation v. City of Albuquerque

• Decision Date: 18 April 1994
• Docket Number: No. 13266,13266
• Citation: 117 N.M. 590,1994 NMCA 57,874 P.2d 798
• Parties: NATIONAL TRUST FOR HISTORIC PRESERVATION, a Congressionally chartered nonprofit corporation, Sierra Club, a California nonprofit corporation, National Parks and Conservation Association, a District of Columbia nonprofit corporation, The Wilderness Society, a District of Columbia nonprofit corporation, and Friends of the Albuquerque Petroglyphs, a New Mexico nonprofit corporation, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, a municipal corporation, City of Albuquerque Public Works Department, City of Albuquerque Environmental Planning Commission, New Mexico State Highway and Transportation Department, and Louis Medrano, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 798

874 P.2d 798

117 N.M. 590

NATIONAL TRUST FOR HISTORIC PRESERVATION, a Congressionally chartered nonprofit corporation, Sierra Club, a California nonprofit corporation, National Parks and Conservation Association, a District of Columbia nonprofit corporation The Wilderness Society, a District of Columbia nonprofit corporation, and Friends of the Albuquerque Petroglyphs, a New Mexico nonprofit corporation, Plaintiffs-Appellants, v. CITY OF ALBUQUERQUE, a municipal corporation, City of Albuquerque Public Works Department, City of Albuquerque Environmental Planning Commission, New Mexico State Highway and Transportation Department, and Louis Medrano Defendants-Appellees.

No. 13266.

Court of Appeals of New Mexico.

April 18, 1994.

[117 N.M. 592] David A. Doheny, Gen. Counsel, Elizabeth S. Merritt, Associate Gen. Counsel, Washington, DC, Kenneth J. Cassutt, Potter, Mills & Cassutt, P.A., Santa Fe, for plaintiffs-appellants.

David S. Campbell, City Atty., Edward R. Pearson, Robert White, Asst. City Attys., Albuquerque, for defendants-appellees, City Defendants.

Arthur J. Waskey, Gen. Counsel, Reese C. Jones, Anne Lovely, Sp. Asst. Attys. Gen., Santa Fe, for defendants-appellees, New Mexico State Highway & Transp. Dept.

Tom Udall, Atty. Gen., Sarah E. Alley, Daniel Yohalem, Asst. Attys. Gen., Santa Fe, for amici curiae, State Historic Preservation Div., State Historic Preservation Officer.

OPINION

HARTZ, Judge.

Plaintiffs filed suit in district court seeking declaratory and injunctive relief against further planning, funding, contracting, and construction by Defendants of a one-mile segment of Unser Boulevard in Albuquerque (the Project). Under the Project design, the roadway borders the Petroglyph National Monument and at two sites the noise berm at the side of the roadway enters the Monument. Plaintiffs contend that the Project violates the New Mexico Prehistoric and Historic Sites Preservation Act, NMSA 1978, Secs. 18-8-1 to 18-8-8 (Repl.Pamp.1991).

A few weeks after the complaint was filed, Plaintiffs moved for a preliminary injunction and Defendants moved to dismiss. The district court dismissed the complaint on the ground that Plaintiffs did not have standing to bring an action under the Act and, in the alternative, denied on the merits Plaintiffs' motion for a preliminary injunction. Plaintiffs, joined by the State Historic Preservation Division (SHPD) and the State Historic Preservation Officer (SHPO) as amici curiae, appeal. We hold that Plaintiffs had standing but affirm the district court's denial of the motion for a preliminary injunction. We remand for further proceedings on the merits of Plaintiffs' claims under the Act for declaratory relief and a permanent injunction.

I. STANDING

Section 18-8-7 states:

No public funds of the state or any of its agencies or political subdivisions shall be spent on any program or project that requires the use of any portion of or any land from a significant prehistoric or historic site unless there is no feasible and prudent alternative to such use, and unless the program or project includes all possible planning to preserve and protect and to minimize harm to the significant prehistoric or historic site resulting from such use. The provisions of this section may be enforced by an action for injunction or other appropriate relief in a court of competent jurisdication [jurisdiction].

The question is who may bring an action permitted by the second sentence of the section.

Plaintiffs contend that the answer is provided by a regulation adopted by the SHPO. Regulations For the Implementation of the New Mexico Prehistoric and Historic Sites Preservation Act, N.M. Historic Preservation Div. Rule 89-2 Sec. 10 (Sept. 15, 1989), states "Either the SHPO or any other interested person may seek enforcement of the provisions of the [Act]." Plaintiffs argue that the regulation has the force of law because the Act invests the SHPO with authority to administer the Act, Section 18-8-4(A), and to issue regulations for the implementation of the Act, Section 18-8-8. The argument is an interesting one. It also appears to be novel. None of the appellate briefs has supplied us with precedent in which a court considered whether an administrative regulation could confer a private right of enforcement not otherwise conferred by statute.

We need not resolve the issue. Regardless of the efficacy of Section 10 of SHPD Rule 89-2, Plaintiffs had the right to bring this action.

The appellate briefs appear to agree that Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), sets forth the appropriate test for deciding, in the absence of an explicit statutory directive, whether Plaintiffs may bring this action. We disagree. No reported New Mexico decision has followed Cort. We explain why we do not believe that Cort is determinative.

Cort held that a shareholder had no federal cause of action against a corporation and its directors for damages for making campaign contributions that violated a federal criminal statute. The United States Supreme Court set forth a four-factor test for determining whether to recognize an implied private cause of action: (1) Was the statute enacted for the special benefit of a class of which the plaintiff is a member? (2) Is there any indication of legislative intent, explicit or implicit, to create or deny a private remedy? (3) Would a private remedy either frustrate or assist the underlying purpose of the legislative scheme? and (4) Would implying a federal remedy be inappropriate because the subject matter is one traditionally relegated to state law? Id. at 78, 95 S.Ct. at 2087-88.

The Cort test does not control here because it was developed to assist in the interpretation of federal statutes. Different considerations arise when state courts decide matters of state law. One difference is obvious. As Plaintiffs note in their brief-in-chief, the fourth factor, which invokes federalism, has no application when a state court is interpreting state law.

A second difference is more subtle but also fundamental. Federal courts have very limited authority beyond that conferred by statute or the Constitution. As the United States Supreme Court has stated, "The instances where we have created federal common law are few and restricted." Wheeldin v. Wheeler, 373 U.S. 647, 651, 83 S.Ct. 1441, 1445, 10 L.Ed.2d 605 (1963). "[A]bsent some congressional authorization to formulate substantive rules of decision, federal common law exists only in such narrow areas as those concerned with the rights and obligations of the United States, interstate and international disputes implicating the conflicting rights of States or our relations with foreign nations, and admiralty cases." Texas Indus. v. Radcliff Materials, 451 U.S. 630, 641, 101 S.Ct. 2061, 2067, 68 L.Ed.2d 500 (1981) (footnotes omitted). Thus, the Cort test is essentially a tool for determining legislative intent. See Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979) ("The central inquiry [under Cort] remains whether Congress intended to create, either expressly or by implication, a private cause of action.").

A state court, in contrast, may look beyond legislative intent in exercising common-law authority to recognize a private cause of action. For example, a common-law court may utilize the statute solely to demonstrate what is public policy; that public policy then forms the predicate for a common-law cause of action. See Gandy v. Wal-Mart Stores, 117 N.M. 441, 872 P.2d 859 (1994) (common-law cause of action for retaliatory discharge); Michaels v. Anglo Am. Auto Auctions, 117 N.M. 91, 869 P.2d 279 (1994) (same); cf. Roger J. Traynor, Statutes Revolving in Common-Law Orbits, 17 Cath.U.L.Rev. 401 (1968). In short, a state court, because it possesses common-law authority, has significantly greater power than a federal court to recognize a cause of action not explicitly expressed in a statute.

This is not to say that the first three Cort factors are irrelevant to a state court. It is simply that they are not exclusive. See San Lorenzo Educ. Ass'n v. Wilson, 32 Cal.3d 841, 187 Cal.Rptr. 432, 434-35 n. 5, 654 P.2d 202, 204-05 n. 5 (1982) (en banc) (Cort is inapplicable when question is whether common law action for damages may be implied from statute). A state's public policy, independent of the first three Cort factors, may be determinative in deciding whether to recognize a cause of action.

Such is the situation in the present case. The controlling New Mexico public policy was expressed in De Vargas Savings & Loan Ass'n v. Campbell, 87 N.M. 469, 535 P.2d 1320 (1975). In De Vargas four savings and loan associations sought judicial review of the decision by the savings and loan supervisor of the New Mexico Department of Banking to grant the Los Alamos Building and Loan Association authority to operate a branch office in Santa Fe. The Savings and Loan Act provided that "any association or person aggrieved and directly affected" by a decision of the supervisor could seek review by appeal to the district court. NMSA 1953, Sec. 48-15-133(A) (Repl.Vol. 7, Supp.1972). Rather than relying entirely on the statute, however, the Court wrote: "It seems fundamental that a plaintiff has standing to protect himself against injury as a result of unlawful governmental action, even in the absence of a controlling statute or constitutional provision." De Vargas, 87 N.M. at 472, 535 P.2d at 1323. We recently relied on this language from De Vargas in Ramirez v. City of Santa Fe, 115 N.M. 417, 421, 852 P.2d 690, 694 (Ct.App.1993). At the least, De Vargas compels the conclusion that when, as in our case, the governing statute is silent regarding who may bring a statutorily recognized action to require a public agency to comply with state law, one who is "injured" by the allegedly unlawful conduct ordinarily may bring suit.

The determination of who is an "injured" party...