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New Mexico Compilation
Commission, Santa Fe, NM
'00'04- 09:45:20 2013.04.15
Certiorari Granted, March 29, 2013, No. 34,010
IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 2013-NMCA-046
Filing Date: December 26, 2012
Docket No. 31,191
NEW MEXICO CATTLE GROWERS’ ASSOCIATION,
Petitioner-Appellant,
v.
NEW MEXICO WATER QUALITY CONTROL
COMMISSION, NEW MEXICO ENVIRONMENT
DEPARTMENT, NEW MEXICO ENERGY,
MINERALS, AND NATURAL RESOURCES
DEPARTMENT, and NEW MEXICO GAME AND
FISH DEPARTMENT,
Respondents-Appellees,
and
AMIGOS BRAVOS, NEW MEXICO BACKCOUNTRY
HUNTERS AND ANGLERS, NEW MEXICO TROUT,
NEW MEXICO WILDLIFE FEDERATION, and
WILDEARTH GUARDIANS,
Intervenors-Appellees.
IN THE MATTER OF AMENDED PETITION TO NOMINATE SURFACE WATERS
IN FOREST SERVICE WILDERNESS AS OUTSTANDING NATIONAL
RESOURCE WATERS
and
IN THE MATTER OF REQUEST TO AMEND ANTIDEGRADATION POLICY
IMPLEMENTATION PROCEDURES AND TO ISSUE GUIDANCE FOR
NONPOINT SOURCE DISCHARGES IN AREAS DESIGNATED AS ONRWS
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APPEAL FROM THE WATER QUALITY CONTROL COMMISSION
Felicia L. Orth, Hearing Officer
David Mathews, LLC
David L. Mathews
Albuquerque, NM
for Appellant
Gary K. King, Attorney General
Zachary Shandler, Assistant Attorney General
Santa Fe, NM
for Appellee New Mexico Water Quality Control Commission
New Mexico Environment Department
Ryan Flynn, General Counsel
Santa Fe, NM
for Appellee New Mexico Environment Department
New Mexico Department of Game and Fish
James H. Karp, General Counsel
Santa Fe, NM
for Appellee New Mexico Department of Game and Fish
New Mexico Energy, Minerals and Natural Resources Department
Sonny Ray Swazo, Assistant General Counsel
Santa Fe, NM
for Appellee New Mexico Energy, Minerals and Natural Resources Department
Western Environmental Law Center
Erik Schlenker-Goodrich
Taos, NM
for Appellees Amigos Bravos, New Mexico Backcountry Hunters and Anglers, New Mexico
Trout, and New Mexico Wildlife Federation
WildEarth Guardians
Samantha Ruscavage-Barz
Santa Fe, NM
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for Appellee WildEarth Guardians
OPINION
KENNEDY, Judge.
{1} This case examines whether the New Mexico Cattle Growers’ Association properly
appealed from a regulatory proceeding of the New Mexico Water Quality Control
Commission (WQCC) directly to this Court by showing that it is adversely affected by the
adopted regulations as is required by statute. The Cattle Growers’ Association appealed the
WQCC’s designation of named perennial waters within United States Forest Service
Wilderness Areas as Outstanding National Resource Waters. We hold that the Cattle
Growers’ Association has not shown that it is adversely affected, thus failing to establish a
statutory requirement for pursuing its appeal, which we dismiss.
I. BACKGROUND
{2} The New Mexico Environment Department, New Mexico Department of Game and
Fish, and New Mexico Energy, Minerals and Natural Resources Department (collectively,
Departments) petitioned the WQCC to nominate surface waters in Forest Service Wilderness
as Outstanding National Resource Waters and amend the WQCC’s anti-degradation policy
pursuant to 20.6.4 NMAC and NMSA 1978, Section 74-6-4 (1993). The Departments
initiated the petition on February 25, 2010, after over a year of public outreach across the
state. The WQCC accepted the petition and set a hearing date in September 2010. The
Departments then moved to amend their petition to limit its scope by excluding intermittent
waters and tributaries.
{3} The Cattle Growers’ Association is an organization that exists to support the cattle
industry in New Mexico. One of its goals is to provide an official and united voice on issues
of importance to the cattle producers and feeders. In a motion to the WQCC, it challenged
both the original petition and the motion to amend. The hearing officer denied the Cattle
Growers’ Association’s motion, but ordered the Departments to re-publish notice of the
narrowed petition. The amended petition was submitted to the WQCC on May 17, 2011.
{4} Several organizations and individuals submitted Notices of Intent to Submit
Technical Testimony to the WQCC. Among them were the Cattle Growers’ Association,
local water commissions, individual citizens, and environmental and avocational groups
concerned with wilderness streams, including WildEarth Guardians, Amigos Bravos, New
Mexico Backcountry Hunters and Anglers, New Mexico Trout, and New Mexico Wildlife
Federation. The WQCC held a hearing on the petition on September 14 through 17, and
October 12 through 14, 2010. The parties subsequently provided written closing arguments.
{5} The WQCC adopted the amended petition on November 30, 2010. The adoption was
codified in an Order and Statement of Reasons dated December 16, 2010. The Cattle
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Growers’ Association appealed, claiming that the designation of waters in the order was too
sweeping and that the petition included fatal procedural flaws. Amigos Bravos and several
other environmental groups intervened as Appellees.
II. DISCUSSION
{6} The Departments argue that the Cattle Growers’ Association may not appeal,
claiming that the Cattle Growers’ Association was unaffected by the regulations because
grazing permittees, as a designated pre-existing land use, were specifically exempted from
Outstanding National Resource Waters requirements. 20.6.4.8(A)(3)(d) NMAC. The
Departments argue that, due to this exception, the evidence at the hearing showed that there
would be no negative economic impact on the grazing allotments affected by Outstanding
National Resource Waters designation. The Cattle Growers’ Association did not claim in
its brief that it is adversely affected by the regulations, thus allowing it to bring the appeal.
It also filed no reply in response to the Departments’ argument.
{7} The governing statute, NMSA 1978, § 74-6-7 (1993), provides that appeals from the
WQCC may be heard by this Court if a petitioner is “adversely affected by a regulation
adopted by the commission” or has “participated in a permitting action or appeal of a
certification before the commission and . . . is adversely affected by such action[.]” Section
74-6-7(A). When evaluating this apparent limitation to bringing suit under a statutory cause
of action, we look to the Legislature’s intent as expressed in the act or other relevant
authority. Key v. Chrysler Motors Corp., 1996-NMSC-038, 121 N.M. 764, 768-69, 918 P.2d
350, 354-55.
{8} Section 74-6-7 twice states the Legislature’s intent that only those “adversely
affected” by a regulation may appeal from the regulation’s adoption. The requirement
applies both those who participated in the rulemaking and those who did not. We note that
the statute previously permitted an appeal by “any person who is or may be affected by a
regulation.” Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control Comm’n, 98 N.M.
240, 242, 647 P.2d 873, 875 (Ct. App. 1982) (alteration, internal quotation marks, and
citation omitted). The law of statutory construction presumes that when the Legislature
amends a statute, it intends to change the existing law. Wasko v. N.M. Dep’t of Labor, 118
N.M. 82, 84, 879 P.2d 83, 85 (1994). Here, the change narrows the law by placing a
heightened requirement that the appellant experience an adverse effect, indicating the
Legislature’s intent to restrict the field of potential appellants.
{9} The issue of adverse impact is usually found in cases addressing standing. See Key,
1996-NMSC-038. “Where the Legislature has granted specific persons a cause of action by
statute, the statute governs who has standing to sue.” San Juan Agric. Water Users Ass’n
v. KNME-TV, 2011-NMSC-011, ¶ 8, 150 N.M. 64, 257 P.3d 884. There is no significant
difference between having standing to sue and having a cause of action. Key, 1996-NMSC-
038, 121 N.M. at 768, 918 P.2d at 354. “When a statute creates a cause of action and
designates who may sue, the issue of standing becomes interwoven with that of subject
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matter jurisdiction.” Disabled Am. Veterans v. Lakeside Veterans Club, Inc., 2011-NMCA-
099, ¶ 7, 150 N.M. 569, 263 P.3d 911 (internal quotation marks and citation omitted). When
the issue of standing is considered jurisdictional, it may be raised at any stage of the
proceedings, even sua sponte by the appellate court. Id. (clarifying that “standing is a
jurisdictional question because [the statute] creates a cause of action and explicitly
designates who is entitled to bring an action under that provision”).
{10} Adverse effect usually arises in standing cases because, unlike in this case, the parties
are not governed by a statutory cause of action and, therefore, must challenge on
constitutional grounds to which standing is the threshold issue. See Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 883 (1990) (holding that “to be ‘adversely affected or aggrieved within
the meaning’ of a statute, the plaintiff must establish that the injury he complains of (his
aggrievement, or the adverse effect upon him) falls within the ‘zone of interests’ sought to
be protected by the statutory provision whose violation forms the legal basis for his
complaint” (alteration omitted); Mt. Emmons Mining Co. v. Town of Crested Butte, 690 P.2d
231, 239 (Colo. 1984) (en banc) (enforcing the requirement that “a party challenging the
constitutionality of the statute or ordinance must show that the enactment will have an
adverse effect on its present or imminent conduct”). It is settled in New Mexico that, when
there is no statute at play, only a party who has a real and substantial interest in the subject
matter before the court and who is aggrieved or prejudiced by the decision of the trial court
may appeal. Galvan v. Miller, 79 N.M. 540, 548, 445 P.2d 961, 969 (1968). The association
of adverse effect and the threshold issue of standing indicates the importance that the
appellant, even in a statutory appeal such as this one, show the court why it is adversely
affected.
{11} Although the operation of the “adversely affected” requirement in Section 74-6-7 has
not yet been addressed in New Mexico law, other courts with similar statutes have found it
to be a necessary element of an appeal from a rulemaking. See ANR Pipeline Co. v. FERC,
205 F.3d 403, 408 (D.C. Cir. 2000) (stating that a company lacked standing to petition for
review of an environmental administrative decision because the statute provides for review
of aggrieved parties, and the company failed to show that it was aggrieved or suffered any
environmental harm); Coates v. City of Cripple Creek, 865 P.2d 924, 926 (Colo. Ct. App.
1993) (finding that “the record establishes the requisite adverse effects of the rezoning upon
[owners of land adjacent to rezoned land] to grant them standing to challenge the validity
of the [zoning] ordinance”). In New Mexico, a similar statute that requires a party be
“aggrieved” in order to appeal a decision of a zoning board has been interpreted as requiring
“standing to appeal” the decision. NMSA 1978, § 3-21-9 (1999); Citizens for Los Alamos,
Inc. v. Inc. Cnty. of Los Alamos, 104 N.M. 571, 573, 725 P.2d 250, 252 (1986).
{12} The Cattle Growers’ Association fails to make any demonstration that its members’
interests would be adversely affected for purposes of appeal. Additionally, it failed to allege
such adverse effects in its testimony presented to the WQCC. The executive director of the
Cattle Growers’ Association, Caren Cowan, testified at the hearing that, “[i]f we take
livestock out of the area, over time, we’re going to undermine the infrastructure of the
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industry and, therefore, put other businesses out of business.” Cowan alleged in her
technical testimony that “[a]s livestock producers . . . are forced out of business, the entire
agricultural economy of the region . . . will begin to disintegrate and then be eliminated[.]”
However, she did not describe how the Outstanding National Resource Waters designation
would remove livestock from any area affected by the designation, force producers out of
business, or drive down the herd size.
{13} Cowan also testified at the hearing that the Cattle Growers’ Association was
concerned primarily about future lawsuits against the Forest Service to remove grazing
allotments, rather than the designation of the waters as Outstanding National Resource
Waters. The Cattle Growers’ Association mentioned this concern again in its closing
argument. However, Cowan had no examples of any lawsuits relating grazing allotments
to previous Outstanding National Resource Waters designations in New Mexico or other
states. To proceed with its appeal in New Mexico, the Cattle Growers’ Association must
show injury or a real risk of future injury. ACLU of N.M. v. City of Albuquerque, 2008-
NMSC-045, ¶ 11, 144 N.M. 471, 188 P.3d 1222. A general, undifferentiated threat of
hypothetical harm to some unidentifiable person will not serve to establish injury. Id. ¶ 18.
The fear of future lawsuits not directly stemming from the Outstanding National Resource
Waters designation is hypothetical harm and does not establish that the Cattle Growers’
Association will be adversely affected.
{14} The Cattle Growers’ Association’s only other witness, Biz Ladner, an administrative
assistant for the Cattle Growers’ Association, also did not identify any adverse impact to the
members of the group and, in response to cross-examination by the Environment
Department, conceded that the Cattle Growers’ Association did not submit any data or
examples that show the cattle industry would suffer a negative economic effect as a result
of the designation. The Cattle Growers’ Association’s witnesses also testified that raising
cattle on designated wilderness is more difficult than on private land due to the restraints on
machine use and the lack of roads. Because the wilderness designations are already in place,
we do not find this argument relevant.
{15} Finally, in its Notice of Intent to the WQCC, the Cattle Growers’ Association failed
to allege any harm that would befall its members from the designation. We recognize that
such an allegation may not be necessary to participate in the hearing.
{16} Generally, this Court “will not search the record for facts, arguments, and rulings in
order to support generalized arguments.” Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M.
451, 200 P.3d 104. Nevertheless, in this case, the Court searched the record and was unable
to find any adverse effect that would give the Cattle Growers’ Association right to an appeal.
III. CONCLUSION
{17} Because the Cattle Growers’ Association failed to make any showing that it was
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adversely affected by the WQCC’s regulations, it did not comply with the statutory
prerequisite to appeal the regulations. We dismiss.
{18} IT IS SO ORDERED.
____________________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_________________________________
CELIA FOY CASTILLO, Chief Judge
_________________________________
LINDA M. VANZI, Judge
Topic Index for N.M. Cattle Growers' Assn. v. N.M. Water Quality Control Comm'n, No.
31,191
ADMINISTRATIVE LAW AND PROCEDURE
Administrative Appeal
Judicial Review
Legislative Intent
Rule
AGRICULTURE
Animals and Livestock
CIVIL PROCEDURE
Standing
NATURAL RESOURES
Leases
Water Law
STATUTES
Legislative Intent
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