Sierra Club v. MIN. COM'N

• Decision Date: 28 March 2001
• Docket Number: No. 280., No. 20, No. 250, No. 247
• Parties: RIO GRANDE CHAPTER of the SIERRA CLUB, Plaintiff/Respondent-Appellee, v. NEW MEXICO MINING COMMISSION, Defendant/Petitioner-Appellant, v. New Mexico Energy, Minerals and Natural Resources Department, Mining and Minerals Division, and Copar Pumice Co., Inc., Intervenors/Petitioners-Appellants.
• Court: Court of Appeals of New Mexico

27 P.3d 984

130 N.M. 497

2001 NMCA 47

RIO GRANDE CHAPTER of the SIERRA CLUB, Plaintiff/Respondent-Appellee, v. NEW MEXICO MINING COMMISSION, Defendant/Petitioner-Appellant, v. New Mexico Energy, Minerals and Natural Resources Department, Mining and Minerals Division, and Copar Pumice Co., Inc., Intervenors/Petitioners-Appellants.

Nos. 20,247, 20,250, 20,280.

Court of Appeals of New Mexico.

March 28, 2001.

Certiorari Granted July 18, 2001.

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

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

Bruce Rogoff, Special Assistant Attorney General, Santa Fe, NM, for Appellant Energy, Minerals and Natural Resources Dep't.

Galen M. Buller, Louis W. Rose, Brett Olsen, Montgomery & Andrews, P.A., Santa Fe, NM, for Appellant Copar Pumice Co., Inc.

Dalva L. Moellenberg, Gallagher & Kennedy, P.A., Phoenix, AZ, for Amicus Curiae New Mexico Mining Association.

Certiorari Granted, No. 26,904, July 18, 2001.

OPINION

BOSSON, Chief Judge.

{1} These consolidated appeals present the narrow legal issue of whether the Director of the Mining and Minerals Division of the New Mexico Energy, Minerals, and Natural Resources Department (MMD) acted within her authority in (1) modifying a mining permit to include an area outside the original permit boundaries, and then (2) issuing a permit for a proposed mine within the expanded boundaries as a new unit of an existing mining operation. The Director took that approach rather than requiring a more comprehensive permit as a new mining operation. Having considered the unique facts and history of this case, we determine that the Director had such authority and did not abuse it. We reverse the district court order to the contrary, and remand for entry of an order affirming the New Mexico Mining Commission (the Commission).

BACKGROUND

{2} The conflict in this case arises over the classification of Copar Pumice Company's El Cajete mine. The Director allowed Copar to revise an existing mining permit to include the proposed El Cajete operation as a new unit of an existing mining operation. The Rio Grande Chapter of the Sierra Club (the Sierra Club) protested and petitioned the Commission for a review. The Sierra Club contended that the El Cajete operation should be regarded as a new mining operation and not just a new unit of an existing mine. Although both classifications of mining activity are subject to MMD regulation, a new mining operation is regulated according to a more rigorous standard than a new unit of an existing mine.

{3} The New Mexico Mining Act categorizes three types of mining operations relevant to our inquiry: existing mining operations, new units of existing mining operations, and new mining operations. See NMSA 1978, § 69-36-3(E) & (I) (1993); NMSA 1978, § 69-36-7(G) & (L) (1997). Each category of mining operation is subject to different degrees of regulation with new mining operations subject to the most stringent standards, existing mines being subject to the least rigorous standard, and new units of existing mines being somewhere in between. The most significant differences between the standards for a new mining operation and those for a new unit of an existing operation are: (1) a new mining operation must present one year of baseline environmental data as a prerequisite to a permit, and (2) operators with a record of violations, so called "bad actors," cannot receive a permit for a new mine. See NMSA 1978, § 69-36-12(A) & (B)(5) (1993); 19 NMAC 10.2 Subpart 6 — New Mining Operations Rule 602.D.13 (1996). New mining operations must also preserve topsoil that has been removed and are subject to slightly different reclamation rules. See § 69-36-7(H)(8); Rules 603.C to 603.H (stating the reclamation requirements for new mines).

{4} In proceedings before the Commission, on the Sierra Club's petition for review, the parties stipulated to the following facts. In November 1987, Copar filed a plan of operation with the United States Forest Service to operate a 33-acre, open-pit pumice mine (the Las Conchas mine) on mining claims in the Santa Fe National Forest. This plan, with modifications, was approved by the Forest Service district ranger in January 1989, and the Las Conchas mine was permitted at 33 acres. Copar began operations at the Las Conchas mine in 1989.

{5} In 1992, while the Las Conchas mine was operational, Copar filed a plan of operation with the Forest Service for the proposed El Cajete mine, which encompassed 133 acres. Eventually, the El Cajete mine was permitted by the Forest Service at 76.2 acres. The parties stipulated that Copar considered the El Cajete mine an expansion of its existing operation at the Las Conchas mine. The outside boundaries of the Las Conchas and El Cajete sites are 1.1 miles apart.

{6} In 1993, the New Mexico Legislature passed the New Mexico Mining Act to promote the "responsible utilization and reclamation of lands affected by the exploration, mining or the extraction of minerals that are vital to the welfare of New Mexico." NMSA 1978, § 69-36-2 (1993). The Act provides for issuing and renewing permits for new and existing mining operations as well as exploratory operations. See, e.g., NMSA 1978, §§ 69-36-5, -7, -11, -12 & -13 (1993, as amended through 1997). When the Mining Act was passed, it required existing mining operations to obtain a mining permit and to submit a site assessment. See § 69-36-5.

{7} In June 1994, Copar submitted a combined site assessment for both the existing Las Conchas mine and the proposed El Cajete mine, stating that El Cajete was a logical expansion of Las Conchas and should be considered an existing mine under the Mining Act. Copar proposed a permit area that included both mines. In July 1994, Copar received a letter from the Acting Director of MMD advising that El Cajete did not qualify as an existing mine but that it could be brought in later in the permitting process as a revision or new unit of an existing site. Copar was advised that the only other alternative was to permit El Cajete as a completely separate and new mine site. Although MMD informed Copar that the El Cajete site did not qualify as an existing mining operation, the Director nonetheless testified before the Commission that the permit coordinator of MMD disagreed with the Director and was of the opinion that the El Cajete site could qualify as an existing site.

{8} In November 1995, Copar requested an extension for submitting the Las Conchas/El Cajete Permit Application and Close-out Plan, noting again that the El Cajete mine should be included in the permit application as part of the existing mining operation at Las Conchas. After further correspondence, the Director wrote in March 1996 that MMD would accept a permit boundary for the Las Conchas site alone, advising Copar that El Cajete could be brought into the Las Conchas permit at a later date if it was determined not to be a new mine. MMD felt at the time that combining the two sites would delay the Las Conchas mining permit approval. MMD was anxious to get that process completed because the Las Conchas mine was already in reclamation without an MMD approved reclamation plan, and MMD was concerned about some of Copar's reclamation practices.

{9} In May 1996, Copar provided MMD with a permit boundary map that included only the Las Conchas mine but reserved the right to appeal the decision to separate El Cajete from the proposed permit boundary. In October 1996, Copar filed a request to revise the permit area for the Las Conchas mine to include the El Cajete site as a new unit of Las Conchas within the proposed, revised permit area. This was Copar's first reference to the El Cajete mine as a unit of the Las Conchas mine instead of simply an existing mine. After public hearings, MMD issued a permit for the existing Las Conchas mine in October 1997. In March 1998, MMD revised the Las Conchas permit to include El Cajete as a new unit. The Sierra Club and the Jemez Homeowners Alliance appealed this revision to the Commission. Copar began mining the El Cajete site after the permit was issued in March 1998, and continues those mining operations today.

{10} After hearing the Sierra Club's petition to review the permit revision, the Commission entered an order in September 1998, ruling that under the Act El Cajete was a new unit of the existing Las Conchas mine rather than a new mining operation. An appeal was taken to district court. The district court determined that the Commission's order was not in accordance with law, and the court set aside the order and ordered the Commission to vacate the permit revision. Copar, MMD, and the Commission appealed the district court order to this Court. In addition to the briefs filed by the parties, the New Mexico Mining Association filed an amicus brief in support of appellants.

DISCUSSION

{11} The Mining Act provides that the Commission shall adopt regulations to implement the Mining Act. Section 69-36-7(D) of the Act provides that the Commission shall adopt regulations that provide for permit modifications. It states, in relevant part,

A permit modification to the permit for an existing mining operation shall be obtained for each new discrete processing, leaching, excavation, storage or stockpile unit located within the permit area of an existing mining operation and not identified in the permit of an existing mining operation and for each expansion of such a unit identified in the permit for an existing mining operation that exceeds the design limits specified in the permit.

Section 69-36-7(D) (emphasis added).

{12} The Sierra Club argues that Section 69-36-7(D) limits the authority of the Director and the Commission with regard to modifying permits for existing mines, to those operations "located...