Old Abe Co. v. New Mexico Min. Com'n

• Decision Date: 24 October 1995
• Docket Number: No. 15750,15750
• Citation: 121 N.M. 83,908 P.2d 776,1995 NMCA 134
• Parties: OLD ABE CO., Lincoln Gold & Tungsten, Inc., Grubstake Mining and Exploration, Inc., United Minerals, Inc., R.C. "Dick" Manning d/b/a Challenge Mining Co., County of Catron, and County of Sierra, Appellants, v. NEW MEXICO MINING COMMISSION, Appellee.
• Court: Court of Appeals of New Mexico

Page 776

908 P.2d 776

121 N.M. 83

OLD ABE CO., Lincoln Gold & Tungsten, Inc., Grubstake Mining and Exploration, Inc., United Minerals, Inc., R.C. "Dick" Manning d/b/a Challenge Mining Co., County of Catron, and County of Sierra, Appellants, v. NEW MEXICO MINING COMMISSION, Appellee.

No. 15750.

Court of Appeals of New Mexico.

Oct. 24, 1995.

Certiorari Denied Dec. 11, 1995.

[121 N.M. 85] Russell Moore, W. Spencer Reid, Keleher & McLeod, P.A., Albuquerque, for Appellants.

Richard W. Darnell, Socorro, for Grubstake Mining and Exploration, Inc.

James W. Catron, La Joya, for Counties of Catron and Sierra.

Tom Udall, Attorney General, William R. Brancard, Ass't Attorney General, Santa Fe, for Appellee.

Douglas Meiklejohn, New Mexico Environmental Law Center, Santa Fe, for Amici Curiae Concerned Citizens del Norte, the New Mexico Wilderness Study Committee, and the Sierra Club.

OPINION

APODACA, Chief Judge.

1. In 1993, the New Mexico Legislature adopted the New Mexico Mining Act (the Act), NMSA1978, Sections 69-36-1 to -20 (Repl.Pamp.1993), for the purpose of "promoting responsible utilization and reclamation of lands affected by exploration, mining or the extraction of minerals that are vital to the welfare of New Mexico." Section 69-36-2. The Act created the New Mexico Mining Commission (the Commission) and mandated that the Commission enact implementing regulations within one year of the effective date of the Act. Section 69-36-7(A). In July 1994, after extensive hearings, the Commission promulgated the New Mexico Mining Act Rules (the regulations) establishing the regulatory scheme mandated by the legislature. The regulations were filed on July 12, 1994, and became effective upon filing.

2. In this appeal, Old Abe Company, Lincoln Gold & Tungsten, Inc., Grubstake Mining and Exploration, Inc., United Minerals, Inc., R.C. "Dick" Manning d/b/a Challenge Mining Company, the County of Catron, and the County of Sierra (collectively, the miners) seek review of the Commission's adoption of the regulations under the Act. See § 69-36-16(A) (judicial review of regulations). We must decide whether the Commission's decision to adopt the regulations was arbitrary, capricious, or an abuse of discretion, or otherwise not in accordance with law. See § 69-36-16(F). To resolve this question, we are asked to decide several subordinate issues: (1) do the regulations conflict with the Act; (2) do the regulations violate due process standards because they are impermissibly vague and delegate unguided discretion to the director of the mining and minerals division of the Energy, Minerals and Natural Resources Department (the Director); (3) do the regulations violate Article III, Section 1 of the New Mexico Constitution because they represent an unconstitutional delegation of legislative authority; (4) do the Act and regulations violate Article VIII, Section 9 of the New Mexico Constitution because they permit taxes to be levied by a non-elective body; (5) do the Act and regulations violate Article IV, Section 30 of the New Mexico Constitution, requiring that appropriations be specific; (6) do the exemptions from the definition of "mining" in both the Act and the regulations violate equal protection principles; and (7) do the regulations violate the "rough proportionality requirement" recently enunciated by the United States Supreme Court in Dolan v. City of Tigard, --- U.S. ----, 114 S.Ct. 2309, 129 L.Ed.2d 304 (1994)?

3. During the pendency of this appeal, Concerned Citizens Del Norte and the New Mexico Wilderness Study Committee moved to intervene. We denied the motion but permitted these organizations, together with the Sierra Club, to file an amici curiae brief, which they did.

4. We first address a jurisdictional issue and determine that we have no authority in this appeal to review the validity of the Act except insofar as the validity of the Act and the validity of regulations turn on an identical analysis. Because of our lack of jurisdiction, we do not address the miners' fifth issue. With respect to the miners' other challenges, we hold that most of the fee structure established by New Mexico Energy, Minerals and Natural Resources Department Regulation 2, 5 N.M.Reg. No. 846, 849-50 (July 30, 1994) (Regulation 2), does not comply with the Act. With respect to the remaining challenges, we hold that the Commission's adoption of the regulations was not arbitrary, capricious, or an abuse of discretion, and was in accordance with law. We therefore affirm in part and reverse and remand in part.

I. DISCUSSION

A. Jurisdiction and Standing

5. Initially, we must decide whether this Court, in this particular appeal, has the authority and power to review both the regulations and the Act generally. This question arises because the Commission has taken no action against the miners under the regulations. This appeal therefore presents only a pre-enforcement facial challenge to both the regulations and the Act. We hold that this Court does have the authority and the power to review the regulations. We also hold that, in the context of this appeal only, this Court does not have the authority to review the constitutionality of the Act.

1. The Regulations

6. The Act specifically provides for judicial review of the regulations adopted by the Commission. See § 69-36-16(A). Section 69-36-16(A) allows "[a]ny person who is or may be affected by a regulation of the [C]ommission [to] appeal the action of the [C]ommission by filing a notice of appeal with the court of appeals within thirty days from the filing date of the regulation with the state records center." (emphasis added); see Wylie Bros. Contracting Co. v. Albuquerque-Bernalillo County Air Quality Control Bd., 80 N.M. 633, 639, 459 P.2d 159, 165 (Ct.App.1969)- >1969) (holding that term "decision" in Article VI, Section 29 of New Mexico Constitution embraced administrative regulations adopted and filed with supreme court librarian). This Court examined a similar jurisdictional question concerning the actions of the Albuquerque-Bernalillo County Air Quality Control Board in adopting and filing regulations under the Air Quality Control Act:

This section of our statutes does not require that an appellant be named in the transcript of the record, but only that he be a "person who is or may be affected by a regulation adopted by the board." Appellants have asserted in their Notice of Appeal that they are persons who are or may be affected by the regulations heretofore adopted by appellee and filed with the Supreme Court Law Librarian. This assertion is in no way contested.

In the usual case or lawsuit which reaches this court for appellate review, the parties before this court must have appeared as litigants in the court below, and the record must so show. The same is true of the usual appeal from a decision or order of an administrative agency. But the subject matter of direct appeals to this court under the Air Quality Control Act is not the usual judgment of a court entered in a case or lawsuit, nor is it the usual decision or order entered by an administrative agency after a hearing on contested issues.

The problem of air pollution is a relatively new area of extensive governmental control, and our Air Quality Control Act was not adopted until 1967. It is apparent to us that the Legislature intended that this court should have the power to review the validity of air pollution control regulations adopted by a board before any claimed violation thereof has occurred, and that any person who is or may be affected by a regulation has standing to invoke the appellate jurisdiction of this court to judicially review such a regulation to the extent provided in § 12-14-7, supra. We see no reason to hold the Act unconstitutional because it grants standing to invoke our jurisdiction to those who are or may be affected by a regulation.

Id. at 640, 459 P.2d at 166. Because there has been no challenge to the miners' assertion in their notice of appeal that they are persons who are or may be affected by the regulations, we hold that this Court has the authority and power to review the regulations in this appeal.

2. The Act

7. We reach a different conclusion with regard to the miners' challenge to the Act itself, in light of the posture of this case on appeal. Article VI, Section 29 of the New Mexico Constitution sets out the jurisdiction of this Court:

The court of appeals shall have no original jurisdiction. It may be authorized by law to review directly decisions of administrative agencies of the state, and it may be authorized by rules of the supreme court to issue all writs necessary or appropriate in aid of its appellate jurisdiction. In all other cases, it shall exercise appellate jurisdiction as may be provided by law.

Thus, the Court of Appeals is a court of limited jurisdiction. Id.; see also State ex rel. Dep't of Human Servs. v. Manfre, 102 N.M. 241, 243, 693 P.2d 1273, 1275 (Ct.App.1984).

8. Here, the legislature has authorized this Court to review the regulations promulgated by the Commission. See § 69-36-16(A) ("Any person who is or may be affected by a regulation of the [C]ommission may appeal the action of the [C]ommission by filing a notice of appeal with the court of appeals....") (emphasis added); § 69-36-16(F) ("Upon appeal the court shall set aside the regulation....") (emphasis added); cf. Wylie Bros., 80 N.M. at 639, 459 P.2d at 165 (holding that term "decision" in Article VI, Section 29 of New Mexico Constitution embraced administrative regulations adopted by agency). It is apparent from a reading of Section 69-36-16 that the legislature did not intend to confer on this Court the power and the authority to review the Act in an appeal such as this--an appeal challenging the regulations on their face.

9. Additionally, the miners have brought this appeal pursuant to Section 69-36-16 (judicial review of regulations) and SCRA1986 12-601(B) (Repl.1992) (appeals...