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State v. Arizona Pub. Serv. Co.

Citation: 2 ELR 20011
No. No. 17994, 3 ERC 1617/(N.M. Dist. Ct., 12/15/1971)

A public nuisance action for a mandatory injunction to force control of emissions from five coal-burning electric generating plants was brought by the state, two conservation groups and a named individual. The electric utility companies operating the plants (in the Four Corners area) filed a motion to dismiss on a variety of grounds. The court ruled that one possible additional plaintiff, a semi-governmental subdivision of Arizona which participated in the operation of the plants, was outside the court's process and therefore not a necessary party to the proceedings. The New Mexico Air and Water Quality Acts and the Environmental Improvement Act did not repeal by implication the plaintiffs' common law right to bring a nuisance action. The State Environmental Improvement Agency can not preempt the court's constitutional jurisdiction to adjudicate common law nuisance disputes; the doctrine of exhaustion of administrative remedies doesn't apply where no such remedies exist. The mandatory injunction which the plaintiffs seek, although detailed and technical, does not turn the court into a mere administrator, since the court will be able to understand the technical matters and to enforce its decision. The motion to dismiss is denied.

Counsel for Plaintiffs
David L. Norvell Attorney General
P.O. Box 2246
Santa Fe, New Mexico 87501

H. Anthony Ruckel
Leonard E. Davies
538 Majestic Building
Denver, Colorado 80202

Catron, Catron & Donnelley
P.O. Box 788
Santa Fe, New Mexico 87501

Counsel for Defendants
Montgomery, Federici, Andrews, Hannahs & Morris
P.O. Box 2307
Santa Fe, New Mexico 87501

Keleher & McLeod
P.O. Drawer AA
Albuquerque, New Mexico 87103