Tenneco Oil Co. v. New Mexico Water Quality Control Com'n

• Citation: 736 P.2d 986,105 N.M. 708,1986 NMCA 33
• Decision Date: 25 March 1986
• Docket Number: Nos. 9103,9106,s. 9103
• Parties: TENNECO OIL COMPANY, Appellant-Petitioner, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee-Respondent. NAVAJO REFINING COMPANY, Appellant-Movant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION, Appellee-Respondent.
• Court: Court of Appeals of New Mexico

Page 986

736 P.2d 986

105 N.M. 708

TENNECO OIL COMPANY, Appellant-Petitioner, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION,

Appellee-Respondent.

NAVAJO REFINING COMPANY, Appellant-Movant, v. NEW MEXICO WATER QUALITY CONTROL COMMISSION,

Appellee-Respondent.

Nos. 9103, 9106.

Court of Appeals of New Mexico.

March 25, 1986.

[105 NM 709] Paul G. Bardacke, Atty. Gen., Andrea L. Smith, Ass't Atty. Gen., Duff Westbrook, Special Ass't Atty. Gen., Santa Fe, for appellee-respondent.

Karen Aubrey, Kellahin & Kellahin, Santa Fe, for applicant Tenneco.

Bruce S. Garber, Santa Fe, for applicant Navajo Refining Co.

OPINION

DONNELLY, Judge.

The issue before us involves the applications of Navajo Refining Company and Tenneco Oil Company, seeking to stay the enforcement of amendments to the Water Quality Control Commission regulations during the pendency of their appeal from the administrative order adopting such amendments. With the consent of the parties, the applications for stay have been consolidated for hearing.

In their applications for stay, applicants assert that the proposed amendments promulgated under the Water Quality Act, NMSA 1978, Section 74-6-1 (Repl.Pamp.1983), et seq., "will set more stringent numerical standards for discharge of substances which are controlled by the Water Quality Control Commission than presently exist" and that if such standards are permitted to become effective, applicants "will be irreparably harmed by enforcement of these regualtions [sic] while this matter is pending on appeal."

Applicants have included in their petitions for stay, copies of the amended regulations which are the subject of their appeals, but have not alleged specifically in what manner the proposed amendments to the regulations, if allowed to take effect, will result in "irreparable harm."

Section 74-6-4 empowers the Commission to adopt regulations and amendments applicable to water quality standards, after notice and hearing to interested persons. NMSA 1978, Sec. 74-6-6 (Repl.Pamp.1983). The Act is silent, however, concerning any provision for the grant of a stay from regulations or amendments enacted by the Commission.

During the pendency of an appeal, an appellate court may grant supersedeas or stay to review any action of, or any failure or refusal to act by, the district court. NMSA 1978, Civ.App.R. 5 (Repl.Pamp.1984). The appellate rule, however, does not specifically refer to the granting of supersedeas or stay from orders of a state administrative agency. Compare NMSA 1978, Civ.P.R. 62 (Repl.Pamp.1980).

Under the Water Quality Act, provision is made for a direct appeal to the Court of Appeals from any regulation or amendment adopted by the Commission. NMSA 1978, Sec. 74-6-7 (Repl.Pamp.1983). Implicit in the statute is the power to grant a stay from the operation of an administrative order or regulation, after due notice and opportunity for hearing. See N.M. Const. art. VI, Sec. 29. During the pendency of an appeal, a stay can be granted as an incident to this court's power to review final administrative orders or regulations. Compare NMSA 1978, Sec. 12-8-18 (specifying under Administrative Procedures Act, that the filing of an appeal does not stay enforcement of an agency decision, but the agency may grant, or Court of Appeals may order a stay upon appropriate terms).

Grant of an application for stay is not a matter of right, it is an exercise of judicial discretion, and the propriety of its issuance is dependent upon the circumstances of each individual case. See State v. Doe, 103 N.M. 30, 702 P.2d 350 (Ct.App.1984).

In cases where a stay is sought of agency action during the pendency of an administrative appeal, in accord with the general rule requiring a party to exhaust his administrative remedies, the party seeking the relief should first apply for a stay from the agency involved. See Von Weidlein International Inc. v. Young, 16 Or.App. 81, 514 P.2d 560 (1973) (en banc). Cf. Angel Fire Corp. v. C.S. Cattle Co., 96 N.M. 651, 634 P.2d 202 (1981); State Racing Commission v. McManus, 82 N.M. 108, 476 P.2d 767 (1970).

In the absence of a specific statute or rule governing the granting of a stay of agency action pending appeal, what standard is applicable herein? Courts in other jurisdictions have applied varying standards. See Tomasi v. Thompson, 635 P.2d 538 (Colo.1981) (en banc); Connecticut Life & Health Insurance Guaranty Ass'n v. Daly, 35 Conn.Sup. 13, 391 A.2d 735 (1977); Coordinating Committee of...