Tri–state Generation v. D'antonio

• Decision Date: 31 August 2007
• Docket Number: No. 30,797.,30,797.
• Citation: 149 N.M. 386,249 P.3d 924,2011 -NMCA- 014
• Parties: TRI–STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., and New Mexico Mining Association, Petitioners–Appellees,v.John D'ANTONIO, Jr., State Engineer of New Mexico, Respondent–Appellant.
• Court: Court of Appeals of New Mexico

149 N.M. 386

249 P.3d 924

2011 -NMCA- 014

TRI–STATE GENERATION AND TRANSMISSION ASSOCIATION, INC., and New Mexico Mining Association, Petitioners–Appellees,

v.John D'ANTONIO, Jr., State Engineer of New Mexico, Respondent–Appellant.

No. 30,797.

Court of Appeals of New Mexico.

Aug. 31, 2007.

Rodey, Dickason, Sloan, Akin & Robb, P.A., Sunny J. Nixon, James P. Bieg, Edward Ricco, Santa Fe, NM, for Appellee Tri–State Generation and Transmission.Rodey, Dickason, Sloan, Akin & Robb, P.A., Mark K. Adams, Santa Fe, NM, for Appellee New Mexico Mining Association.Gary K. King, Attorney General Stephen R. Farris, Assistant Attorney General, Frances C. Bassett, Assistant Attorney General Santa Fe, NM, for New Mexico Office of the State Engineer.DL Sanders, Special Assistant Attorney General, Santa Fe, NM, Sutin, Thayer & Browne, Paul Bardacke, Special Assistant Attorney General, Peter S. Kierst, Special Assistant Attorney General, C. Shannon Bacon, Special Assistant Attorney General, Albuquerque, NM, for Appellant.

OPINION

PICKARD, Judge.

{1} Respondent, the New Mexico State Engineer (State Engineer), seeks to appeal the district court's order reversing portions of the State Engineer's Active Water Resource Management (AWRM) regulations on the basis that some of the regulations are unconstitutional. At issue is whether the State Engineer should have sought review by our Court by filing a petition for writ of certiorari or by filing a notice of appeal. We take this opportunity to discuss the proper procedure for seeking review of the State Engineer's adoption of regulations, and we hold that the State Engineer's filing of a notice of appeal is both appropriate and timely.

BACKGROUND

{2} In 2003, the legislature enacted NMSA 1978, § 72–2–9.1 (2003), which states that

the adjudication process is slow, the need for water administration is urgent, compliance with interstate compacts is imperative and the state engineer has authority to administer water allocations in accordance with the water right priorities recorded with or declared or otherwise available to the state engineer.

Section 72–2–9.1(A). The statutory provision further provides that “[t]he state engineer shall adopt rules for priority administration to ensure that authority is exercised.” Section 72–2–9.1(B).

{3} Relying on Section 72–2–9.1, the State Engineer drafted regulations for the management and regulation of water and made the regulations available for public comment. See NMSA 1978, § 72–2–8 (1967) (addressing the State Engineer's authority to promulgate regulations). Many comments in opposition were received in writing, at a public hearing, and in private meetings. In response to the comments, the State Engineer revised some of the regulations. The revised AWRM regulations were adopted as final regulations in December 2004.

{4} Following the enactment of the AWRM regulations, Petitioners filed a Rule 1–075 NMRA petition for writ of certiorari in district court. The parties agreed below that the proceedings were Rule 1–075 proceedings and the district court conducted its review pursuant to Rule 1–075.

{5} The district court subsequently ruled partially in Petitioners' favor and reversed portions of the regulations on the basis that some of the provisions were unconstitutional. The State Engineer did not file a petition for writ of certiorari within twenty days of the district court's order, as required by Rule 12–505(C) NMRA. Instead, the State Engineer filed a notice of appeal twenty-nine days after the district court's order. On the same day, the State Engineer filed a “Motion for Extension of Time and the Determination of the Applicable Process for an Appeal by the New Mexico State Engineer in this Case.” That motion is the matter currently before this Court.

DISCUSSION

{6} In its motion, the State Engineer requests both an extension of time to file a petition for writ of certiorari, if necessary, and a clarification from our Court regarding the proper process for an appeal in such cases. According to the State Engineer, “[i]t is not clear whether the proper avenue for the Petitioners' challenge was an administrative appeal under Rule 1–075, or whether the Petitioners should have availed themselves of their statutory right of appeal under NMSA 1978, § 72–7–1(A) (1971).” The State Engineer expresses confusion over whether review by this Court should be obtained by petition for writ of certiorari or by filing a notice of appeal.

{7} In response, Petitioners argue that the State Engineer is seeking to excuse its failure to file a petition for writ of certiorari within twenty days of the district court's final order “by feigning ignorance and ambiguity about the status of the proceedings in this case,” when it was clear to all the parties involved that Rule 1–075 was applicable. Petitioners further assert that because “the State Engineer failed to comply with the simple and unambiguous provisions of Rule 12–505, ... the State Engineer's request for extension of time to file his petition should be denied and the tardy appeal should be dismissed.”

{8} We take this opportunity to address the proper procedure for appealing the adoption of rules and/or regulations by the State Engineer. Additionally, we address whether dismissal is mandated if Petitioners sought review of the State Engineer's actions in an incorrect manner. Lastly, we address the effect of the State Engineer's acquiescence to the application of Rule 1–075 to the proceedings.

Rule 1–075

{9} Rule 1–075 is one of the “two rules of civil procedure governing district court review of administrative decisions or orders.” Dixon v. State Taxation & Revenue Dep't, 2004–NMCA–044, ¶ 2, 135 N.M. 431, 89 P.3d 680; see Rule 1–074(A) NMRA (governing review from agency decisions where “there is a statutory right of review to the district court”). Rule 1–075 “governs writs of certiorari to administrative officers and agencies pursuant to the New Mexico Constitution when there is no statutory right to an appeal or other statutory right of review.” Rule 1–075(A). Under this rule, a party aggrieved by a final decision or order of an agency may seek district court review of the decision or order by filing a petition for writ of certiorari in the district court within thirty days of the agency action. Rule 1–075(B), (D). After issuing the writ of certiorari,

[t]he district court may enter an order reversing the decision of the agency if it finds that:

(1) the agency acted fraudulently, arbitrarily or capriciously;

(2) based upon the whole record on review, the decision of the agency is not supported by substantial evidence;

(3) the action of the agency was outside the scope of authority of the agency; or

(4) the action of the agency was otherwise not in accordance with law.

Rule 1–075(Q). A party then wishing appellate review of the decision of the district court must file a petition for writ of certiorari “within twenty (20) days after entry of the final action by the district court.” Rule 12–505(C); see Paule v. Bd. of County Comm'rs, 2005–NMSC–021, ¶ 14, 138 N.M. 82, 117 P.3d 240 (“A party aggrieved by the district court's order in an administrative appeal may seek review of the decision by filing a petition for writ of certiorari with the Court of Appeals.”).

{10} In the present case, Petitioners invoked the appellate jurisdiction of the district court by filing a petition for writ of certiorari pursuant to Rule 1–075 within thirty days of the State Engineer's order adopting the AWRM regulations. If, as Petitioners maintain, Rule 1–075 was indeed the proper avenue to challenge the AWRM regulations, the State Engineer needed to file a petition for writ of certiorari within twenty days of the district court's order ruling portions of the regulations unconstitutional. See Rule 12–505(C); Paule, 2005–NMSC–021, ¶ 14, 138 N.M. 82, 117 P.3d 240; Dixon, 2004–NMCA–044, ¶¶ 3–8, 135 N.M. 431, 89 P.3d 680. We conclude that Rule 1–075 was not the proper means by which to challenge the State Engineer's adoption of the AWRM regulations.

{11} While Rule 1–075 governs district court review of agency decisions or orders where there is no statutory right to an appeal, as Petitioners maintain in the present case, we question whether the rule governs review of State Engineer decisions or orders involving water rights. Notably, the New Mexico Constitution provides that “[i]n any appeal to the district court from the decision, act or refusal to act of any state executive officer or body in matters relating to water rights, the proceeding upon appeal shall be de novo as cases originally docketed in the district court unless otherwise provided by law.” N.M. Const. art. XVI, § 5 (emphasis added). Conversely, Rule 1–075 does not provide for de novo review, but instead employs a scope of review that is analogous to the standard of review typically employed by this Court in reviewing decisions by administrative agencies. See Rule 1–075(Q); see also Clayton v. Farmington City Council, 120 N.M. 448, 453, 902 P.2d 1051, 1056 (Ct.App.1995) (“When reviewing most administrative decisions, the district court and appellate court examination is limited to assessing, in light of the whole record, whether the agency acted arbitrarily or capriciously, whether the agency decision was supported by substantial evidence, and whether the agency acted within the scope of its authority.”).

{12} The fact that Rule 1–075 prescribes an entirely different scope of review than is mandated in cases involving water rights leads this Court to conclude that Rule 1–075 is likely not an appropriate means by which to obtain review of a decision or order of the State Engineer. Cf. Anthony Water & Sanitation Dist. v. Turney, 2002–NMCA–095, ¶ 8, 132 N.M. 683, 54 P.3d 87 (observing that “Rule 1–074 contemplates an appellate review proceeding in the district court whereas appeals from the State Engineer are constitutionally required to be tried de novo”)....