(specially concurring).
I join in Judge Lopez’s opinion on the first two issues — valuation at 87V2 percent of original cost and the claimed deduction for obsolescence. I agree with the result reached by Judge Lopez on the constitutional issue but do not join in his discussion.
In contending that § 7-36-25(E)(2), N.M. S.A.1978 is unconstitutional, Anaconda makes three claims.
1. Anaconda contends that to avoid the constitutional issue, its open-pit mine should be considered an underground mine for the purpose of the disputed deduction. The evidence supports the trial court’s finding that Anaconda’s “mining operations which resulted in the claims for refund are open-pit or strip mining operations rather than underground mining operations.”
2. The deductions authorized in arriving at annual net production value distinguish between uranium-bearing material disposed of as ore or solution and uranium-bearing material which has been processed or beneficiated. Compare Subparagraphs (1) and (2) of § 7-36-25(E), supra. Contrary to Anaconda’s contention, the difference between material disposed of as ore or solution and material disposed of after being processed or beneficiated provides a rational basis for distinguishing the authorized deductions.
3. Anaconda’s claim, with which I agree, is that the deduction in § 7-36-25(E)(2), supra, denies it equal protection. This is “a deduction for the cost of producing and bringing the output to the surface and of milling, treating, reducing, transporting and selling uranium-bearing material severed and saved from an underground mine.” (My emphasis.) This deduction has two parts — (1) the cost of bringing to the surface, and (2) processing costs after reaching the surface.
The record shows a difference in cost, as between open-pit and underground mines, in bringing material to the surface. This difference provides a rational basis for authorizing a deduction for this cost for an underground mine and not authorizing a similar deduction for an open-pit mine. If the deduction went only to this cost, there would not be a denial of equal protection.
The record also shows a cost, both for open-pit and underground mines, in processing the material once the material reaches the surface. On what basis is the underground mine allowed this deduction and the open-pit mine not allowed this deduction? The justification, throughout the record, goes only to the difference in cost in bringing material to the surface. This, however, goes only to the first part of the deduction. Anaconda’s evidence consistently referred to its surface processing costs and, in my opinion, negated any basis for allowing an underground mine a deduction for surface processing costs and not allowing this deduction for an open-pit mine. No justification, other than cost, has been advanced. To the extent that § 7-36-25(E)(2), supra, allows a deduction for surface processing costs only to an underground mine, the open-pit mine is denied equal protection. Halliburton Company v. Property Appraisal Dept., 88 N.M. 476, 542 P.2d 56 (Ct.App.1975).
The Legislature authorized a two-part deduction, one part of which is unconstitutional. The amount of the deduction (the 50%) does not distinguish between the two parts. The legislative intent is clear, that the two parts of the deduction apply only to underground mines. In light of the legislative intent shown by the unambiguous statutory language, the deduction cannot apply to any mine. It cannot apply to underground mines because the deduction unconstitutionally favors underground mines in connection with surface processing costs, and the statute does not distinguish between the amount of this improper deduction and a deduction which would have been proper (bringing material to the surface). It cannot apply to open-pit mines because the Legislature did not intend any part of this deduction for open-pit mines.
Because Anaconda is not entitled to this deduction, I agree with Judge Lopez’s result as to this issue.
HENDLEY, J., concurs.