(dissenting).
{40} Respectfully, I dissent from the majority opinion. I would reverse the Court of Appeals and affirm the district court. I also respectfully disagree with the majority’s discussion regarding certiorari and the standard of review.
{41} As the majority states, we review statutory interpretation questions de novo. I believe that the section regarding the standard of review is advisory. I disagree with the majority’s limitation of State v. Conn, 115 N.M. 99, 847 P.2d 744 (1993), and I would not overrule the Court of Appeals’ cases.
New Mexico Mining Act
{42} Regarding the legal issue before the Court, whether the New Mexico Mining Act, NMSA 1978, §§ 69-36-1 to -20 (1993, as amended through 2001), authorizes the director to modify an existing mining permit to include an area outside the original boundaries and subsequently issue a permit for a proposed mine within these expanded boundaries as a new unit of an existing mining operation, I believe that the statutes do not authorize such actions. The Legislature’s purposes for the New Mexico Mining Act “include promoting responsible utilization and reclamation of lands affected by exploration, mining or the extraction of minerals that are vital to the welfare of New Mexico.” NMSA 1978, § 69-36-2 (1993). The Legislature has defined “ ‘reclamation’ ” as “the employment during and after a mining operation of measures designed to mitigate the disturbance of affected areas and permit areas and to the extent practicable, provide for the stabilization of a permit area following closure that will minimize future impact to the environment from the mining operation and protect air and water resources.” NMSA 1978, § 69-36-3(K) (1993). Thus, the New Mexico Mining Act involves balancing responsible use for mining with environmental concerns.
{43} As I read the statutes, there are existing mines, grandfathered into a more protected status with the least stringent regulations, new units of existing mines located within the original permit boundaries, also receiving less stringent regulations, and new mines, subject to the greatest burdens and restrictions. The definition of an “ ‘existing mining operation’ ” is clear: it is “an extraction operation that produced marketable minerals for a total of at least two years between January 1, 1970 and the effective date of the New Mexico Mining Act.” Section 69-36-3(E). Categorization as an existing mining operation is most desirable from a mining company’s viewpoint because it is an exception to tougher requirements under the New Mexico Mining Act. In order to qualify as a new unit of an existing mine, I believe the statute clearly states that the new unit must be located within the original permit boundaries. To allow expansion of the original boundaries in order to encompass the “new units” is, to me, an end run around the New Mexico Mining Act, as explained below.
{44} As recognized by all of those involved in this case, the New Mexico Mining Act regulates new mines most extensively, new units of existing mines less so, and existing mines the least. I believe this indicates that the Legislature intended to create a “grandfather” exception for existing mines. See Regents of Univ. of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, ¶¶ 23-24, 125 N.M. 401, 962 P.2d 1236 (stating that “ ‘grandfather clauses,’ ‘savings clauses,’ ‘exemptions,’ and ‘provisos’ ” are “types of statutory provisions [which] delineate a special exception from the general requirements of a statute”).
These laws do not usually create rights or requirements, but rather prevent an entity from being altered or imposed upon by a new statute. A grandfather clause preserves something old, while the remainder of the law of which it is a part institutes something new. A grandfather clause may have the effect of relieving an entity from submitting to new restrictions, or the clause may have the reverse effect of permitting the entity to avoid broadening the scope of its activities. The grandfather clause may extend prerogatives to those already receiving them, while denying those same prerogatives or imposing additional obligations upon the remainder of the class.
Id. ¶ 25 (citation omitted). The New Mexico Mining Act places fewer restrictions and burdens on existing mines, as noted by the parties as well as the majority, to avoid imposing stringent burdens on companies engaged in mining operations prior to enactment of the statutes. See § 69-36-3(E).
New statutory restrictions or requirements can, in many circumstances, impose hardships upon enterprises whose activities were well established prior to the law’s enactment. By including grandfather provisions into a new law, the Legislature recognizes that there are classes of entities who could be damaged by the blanket and unrestricted application of new rules.
Regents, 1998-NMSC-020, ¶ 26, 125 N.M. 401, 962 P.2d 1236.
{45} The involvement of a grandfather clause should guide our statutory interpretation of this case. I view the protected status of existing mining operations as the exception to the general rule of the environmental requirements applying to new mining operations.
Generally, in resolving statutory ambiguities, courts will favor a general provision over an exception. This is especially true when a statute promotes the public welfare. Because of this judicial predilection, strict or narrow construction is usually applied to exceptions to the general operation of a law. For this reason, a grandfather clause will be construed to include no case not clearly within the purpose, letter, or express terms, of the clause. “In interpreting the exceptions to the generality of the grant, courts include only those circumstances which are within the words and reason of the exception.” When the scope of a grandfather clause is ambiguous, the court will construe it strictly against the party who seeks to come within its exception.
Id. ¶ 27 (citations omitted) (emphasis added). Thus, unless the New Mexico Mining Act explicitly authorizes the expansion of an original permit boundary to encompass “new units” of the existing mine which would otherwise fall outside the permit boundary, I do not believe we can infer such authority from the Act.
{46} The majority declares that a grandfather clause is not implicated in the present ease because existing mines are not a special exception and that the Act does not prevent the existing mines from being altered or imposed upon, relying on Regents. Majority opinion, ¶ 37. I do not believe complete exception from statutory burdens are required for provisions to be deemed grandfather clauses. As this Court expressed in Regents, “[t]he effect of [grandfather clauses] is to narrow, qualify, or otherwise restrain the scope of the statute.” Regents, 1998-NMSC-020, ¶ 24, 125 N.M. 401, 962 P.2d 1236 (emphasis added). Other jurisdictions have also recognized that a provision can be a limited, rather than complete, exception and still be considered as a grandfather clause. See, e.g., Miss. Bd. of Nursing v. Belk, 481 So.2d 826, 830 (Miss.1985) (concluding that a limited grandfather clause for nurse anesthetists is unconstitutional); Eyl v. Ciba-Geigy Corp. 264 Neb. 582, 650 N.W.2d 744, 751 (2002) (noting that a provision “provided a grandfather clause that allowed existing devices to remain on the market during the approval process” and that the statute “also allowed devices that were substantially equivalent to preexisting devices to avoid the rigorous approval process by filing a notice and completing a relatively simple approval process”); Lubinsky v. Fair Haven Zoning Bd. 148 Vt. 47, 527 A.2d 227, 229 (1986) (“The purpose of the statute is to retain for usefulness pre-existing lots of satisfactory size, even though they do not quite meet zoning limits as to size. It is a sort of limited grandfather clause allowing for limited development on previously laid-out lots that is not seen as unduly disruptive of the desired ends of zoning.”). Thus, the construct of a grandfather clause provides appropriate guidance in the present case. We should include only those circumstances which are within the words and reason of the exception. If the scope of a grandfather clause is ambiguous, we ought to construe it strictly against the party who seeks to come within its exception.
{47} The majority comes to the opposite holding. The majority reiterates that “[t]he Court of Appeals reasoned that the plain language of the Mining Act ‘neither authorizes nor prohibits modifying a permit to allow an expansion of the existing permit area.’ ” Majority opinion, ¶ 19 (quoted authority omitted). The majority concludes that Section 69-36-7(D) “simply does not address whether a fixed permit area may or may not be expanded. Nor does a reading of the Mining Act as implicitly permitting an expansion of a permit area necessarily fall contrary to the intent of Section 69-36-7(D) in light of the overall objectives of the Mining Act.” Majority opinion, ¶ 24. Thus, the majority apparently concedes that no language in the New Mexico Mining Act explicitly authorizes the expansion of the original permit area to encompass a new unit of an existing mine. To me, this fact is determinative, and I believe the majority’s recognition of authority by implication is contrary to our rules of statutory interpretation for what is an exception to the rule. “[A] grandfather clause will be construed to include no case not clearly within the purpose, letter, or express terms of the clause.” Regents, 1998-NMSC-020, ¶ 27, 125 N.M. 401, 962 P.2d 1236. “[W]e will not read into a statute or ordinance language which is not there, particularly if it makes sense as written.” Id. ¶ 28 (quoted authority and quotation marks omitted). The majority “note[s] that the district court below correctly observed that the Mining Act neither provides for nor prohibits the expansion of a mining permit area. On that basis, the court concluded that MMD’s assertion of authority in this regard was ‘unsupported and inconsistent with law.’ ” Majority opinion, ¶25. I believe that the district court was correct.
{48} The majority holds that Section 69-36-7(D) does not contain a restriction for the expansion of a permit area for an existing mining operation and “merely states that the Commission shall adopt regulations that provide for permit modifications for the purpose of including new mining units within existing permit areas.” Majority opinion, ¶ 24. I disagree with this interpretation. “Where authority is given to do a particular thing and a mode of doing it is prescribed, it is limited to be done in that mode; all other modes are excluded. This is a part of the so-called doctrine of expressio unius est exclusio alterius.” Bettini v. City of Las Cruces, 82 N.M. 633, 635, 485 P.2d 967, 969 (1971) (quotation marks and quoted authority omitted). Section 69-36-7(D) does contain limiting language; “for permit modifications,” this section provides that
[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.
(Emphasis added.) To permit an “expansion” of the fixed permit area in order to incorporate a new unit seems to be an end run around Section 69-86-7(D). “We will not depart from the plain wording of a statute, unless it is necessary to resolve an ambiguity, correct a mistake or an absurdity that the Legislature could not have intended, or to deal with an irreconcilable conflict among statutory provisions.” Regents, 1998-NMSC-020, ¶ 28, 125 N.M. 401, 962 P.2d 1236.
{49} The majority opinion states that Section 69-36-7(G) “provides that permits for existing mines may be modified to include new mining units” but “does not make any reference to the permit area with regard to a permit modification to account for new mining units.” Majority opinion, ¶ 26. The majority then concludes that because Section 69-36-7(D) addresses the modification of permits for new units within the permit area of an existing operation, “attributing a like reading to Section 69-36-7(G) would improperly render this section surplusage.” Majority opinion, ¶ 26. The majority, in my view, appears to be reading Section 69-36-7(G) out of context. This section, by its first phrase, “establish[es] by regulation a procedure for the issuance of a permit for an existing mining operation and for modifications of that permit to incorporate approved closeout plans or portions of closeout plans and financial assurance requirements for performance of the closeout plans.” Section 69-36-7(G) (emphasis added). Thus, this section does not appear to be authority for modification of new mining units and expansions outside the permit area, supplementing Section 69-36-7(D), but for modifications related to closeout plans. Although the majority contends that I am reading nonexistent language into the statute, the majority instead ignores the second phrase, “to incorporate approved closeout plans,” which informs “issuance of a permit for an existing mining operation and for modifications of that permit.” See Majority opinion, ¶ 27. The only manner in which this provision can be read to authorize modification of permits for a new mining unit is to lift out select sections and disregard those remaining phrases which, through plain language, direct the modifications to “incorporate approved closeout plans,” “contain a schedule for completion of a closeout plan,” and “thereafter be modified to incorporate the approved closeout plan.” Section 69-36-7(G). Section 69-36-7(D), on the other hand, directs the Commission to “adopt regulations that provide for permit modifications” and is therefore more applicable to the issue in this case than Section 69-36-7(G). The majority concludes that “[i]f the [Legislature intended to prohibit the expansion of a permit area it certainly could have expressly stated so.” Majority opinion, ¶ 28. I find it more instructive to note that the Legislature clearly did not authorize such action.
{50} As noted above, the majority reads Section 69-36-7(D) as addressing modifications for new mining units within the permit area of an existing mining operation and Section 69-36-7(G) as providing for permits for existing mines to include new mining units outside the original permit area. Majority opinion, ¶26. If Section 69-36-7(G) were to have the meaning apparently suggested by the majority, then existing mines would be free to create new units outside the permit area without being subject to the restrictions in Section 69-36-7(D). In other words, new units inside the permit area governed by Section 69-36-7(D) would receive greater regulation than new units outside the original boundary in the “affected area,” NMSA 1978, § 69-36-3(A) (1993). I am convinced that this was not the Legislature’s intent.
{51} The majority defers to “MMD’s expertise in the area of permitting and enforcement under the Mining Act,” based on the “general rule that courts will defer to agency determinations if they are within [an] agency’s area of specialization or implicate agency expertise.” Majority opinion, ¶ 34. Although this Court accords some deference to an agency’s interpretation of a statute, I would not give such great deference to the agency in the present case. “[T]he court is not bound by the agency’s interpretation and may substitute its own independent judgment for that of the agency because it is the function of the courts to interpret the law.” Morningstar Water Users Ass’n v. N.M. Pub. Util. Comm’n, 120 N.M. 579, 583, 904 P.2d 28, 32 (1995).
{52} The majority distinguishes between a proposed mining activity as a new mining unit versus new mining operations, concluding that “a new mining operation may not be included as a unit in an expanded" permit area for an existing mining operation, because such a result would eviscerate the stringent environmental safeguards governing those operations under the Mining Act.” Majority opinion, ¶ 30 (footnote omitted). This conclusion belies the majority’s argument that “existing mines[, and presumably, new units of existing mines] are subject to numerous restrictions and requirements consistent with the purpose of the Mining Act to foster environmental stewardship.” Majority opinion, ¶37. Instead, this conclusion expresses my concern for the present ease, that treating what is a new mining operation as a new unit of an existing mine “eviseerate[s] the stringent environmental safeguards” which ought to apply to the El Cajete mine.
{53} The majority concludes that Sierra Club’s construction of the New Mexico Mining Act “would place an unnecessary economic burden on mine operators, unduly tax the state’s administrative resources, and eventually prove unworkable.” Majority opinion, ¶ 29. First, I believe these concerns are policy choices best left to the Legislature. However, I also do not believe the Legislature intended to give such a sizable advantage to existing mining operations by allowing them simply to expand their permit boundaries in order to receive the benefit of fewer restrictions and burdens. The majority notes that the existing mine, Las Conchas, was thirty-three acres, prior to the expansion in question which added approximately seventy-six additional acres. Majority opinion, ¶ 3. The Sierra Club notes that the outer boundaries of the Las Conchas and El Cajete mines are over a mile apart, and that active mining in the Las Conchas mine ended years before mining began at El Cajete. As interpreted by the majority, I feel the exception for existing mines and new units has swallowed the rule. As the Sierra Club argues, the “decision to place the El Cajete mine outside of any permit area that had been properly studied for environmental concerns and deem it a new unit rather than a new mine defeats [the][L]egislative scheme.” The majority states that “any determination to expand a permit area to include a new mining unit must be reasonable” and warns that “any interpretation of this opinion by MMD, the Commission, or the mining industry that would invite such a wholesale circumvention of the Act would be a grave miscalculation.” Majority opinion, ¶ 35 (internal quotation marks and quoted authority omitted). I agree with Sierra Club that this warning rings hollow in light of the considerable expansion of the original permit boundary in the present ease to include El Cajete as a new unit of the existing Las Conchas mine.
{54} I would affirm the district court. For the reasons articulated above, I dissent.