New Mexico v. Arizona Public Service Company

No. 17994 (N.M. Dist. Ct. January 5, 1972)

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

[2 ELR 20011]

Zinn, District Judge

The State of New Mexico as plaintiff, upon relation of the Attorney General and other persons, corporations and associations, seeks a mandatory injunction by this Court to require the several defendants as owners and operators of five coal-burning electric generating plants in San Juan County to prevent the plants from emitting smoke containing certain gases and other elements in such quantities and of such nature as to cease to be a public nuisance as the state alleges them to be. The action is brought under the civil abatement provisions of the criminal code chapter on public nuisances, Section 40A-8-5 NMSA.

This section states in essence:

"A civil action to abate a public nuisance may be brought . . . in the name of the state . . ., by any public officer or private citizen . . . against any person, corporation or association of persons who shall create, perform or maintain a public muisance."

Section 40A-8-1 NMSA provides us with the definition of a public nuisance.

[2 ELR 20012]

"A public nuisance consists of knowingly creating or performing or maintaining anything affecting any number of citizens without lawful authority which is either:

A. injurious to public health, safety, morals or welfare; or

B. interferes with the exercise and enjoyment of public rights, including the right to use public property.

This opinion is required to decide the several legal defenses raised as a multi-grounded motion to dismiss filed by the several defendants.

In summary, the grounds contending a right to dismissal are:

First: The plaintiffs did not join The Salt River Project Agricultural Improvement and Power District, an agricultural improvement district, a semi-governmental subdivision of the State of Arizona, and one of the participating owners in two of the five power plants and a participant in the operating agreement covering all plants. It is contended that any decision in the case would affect this agency materially, thus making them an indispensible party, without whom the Court could not fairly adjudicate the cause.

Second: The enactment of the Air and Water Quality Acts and Environmental Improvement Act supersedes by implication the civil nuisance abatement action law cited supra insofar as any applicability to the matters complained of, air and water pollution, since the new laws deal specifically with these subjects, while the older law is a general one covering all sorts of nuisances.

Third: The Environmental Improvement Agency, if not the sole authority as argued under the second point, is the primary authority and should review the matter first before resort to the courts is sought. Included in this point is the argument that the Environmental Improvement Agency is acting and has an ongoing program of enforcing existing regulations and is developing new ones to meet the problems complained of in this lawsuit generally throughout the state, and more specifically, that it is monitoring compliance with its regulations and orders issued to the defendants.

Fourth: The remedy sought, that is, of imposing on the defendants a mandatory injunction directing them as to the permissible content of their smokestack emissions, would make of the court an administrative regulatory agency, not a court of law.

Fifth: The civil abatement portion of the criminal code chapter on nuisance when enacted did not meet the constitutional requirement of being expressed in the title of the bill which contained it, and is thus void.

OPINION: The lawsuit by the state can be maintained and the motion to dismiss should be denied.

Each of the points raised by defendant require individual resolution.

First: Lack of Salt River as a party. — Rule 19 (a) predicates joinder ". . if feasible. A person who is subject to service or process shall be joined. . . ."

All parties concede that Salt River is a governmental agency of the State of Arizona. As such, it is not amenable to suit in the courts of New Mexico. Not being subject to service or process, the Salt River Project need not be joined.

Second: The nuisance abatement proviso has been repealed by implication. — The Air Quality Control Act contains an express stumbling block to defendants' contention for repeal by implication in Section 12-14-13 NMSA, reading:

"The Air Quality Control Act is supplementary to other legislation and does not repeal any laws except those in direct conflict therewith. All county and municipal ordinances and all state, county and municipal regulations relating to air quality and air pollution are continued in effect . . unless revised or repealed."

Likewise, the Water Quality Act, Section 75-39-12, NMSA, says:

"The Water Quality Act (75-39-1 to 75-39-12) provides additional and cumulative remedies to prevent, abate and control water pollution, and nothing abridges or alters rights of action or remedies in equity under the common law or statutory law, criminal or civil. No provision of the Water Quality Act or any act done by virtue thereof estops the state or any political subdivision or person as owner of water rights or otherwise, in the exercise of their rights in equity or under the common law or statutory law to suppress nuisances or to abate pollution."

Repeals by implication are not favored. Alvarez v. Bd. of Trustees 62 N.M. 319, 309 P.2d 989. State v. Rue 72 N.M. 212, 382 P.2d 697. To infer an intent to supersede the field by the new act, in the face of such express reservation of the applicability of other laws, would be a gross trespass by the Court upon legislative domain.

Third: The Environmental Improvement Agency has Primary Jurisdiction. — There has been no legislative withdrawal from the Court of the historic right to adjudicate disputes arising out of trespass by one person against anothr through maintenance of a nuisance. The assignment of such exclusive authority to adjudicate rights between individuals to an administrative body would in all likelihood meet the fate of an earlier enactment deemed a legislative encroachment on the judicial preserve as fenced in by the state constitution. State ex rel. Hovey v. Mechem 63 N.M. 250, 316 P.2d 1069. It would seem to make no difference that the state is the complaining party here, asserting a right to stop a nuisance in behalf of the people rather than a private person seeking redress for injury or to prevent injury by the extraordinary remedy of injunction.

Arguments are made that the Environmental Improvement Agency has regulations and is enforcing them as to a part of the acts of defendants complained of as a nuisance by the state in this lawsuit and is undertaking the promulgation of regulations to cover the rest of the operation allegedly contributing to the nuisance sought to be abated. This being so, the defendants say the state must first pursue the relief sought through the Environmental Improvement Agency. This interlaces the doctrine of exhaustion of administrative remedies before seeking court determination of the same matter, with the primary jurisdiction theory. They need separate examination. To exhaust administrative remedy implies that there is a complete remedy via an agency to afford the relief sought. Conceded by both parties is the fact that as of now the Environmental Improvement Agency has not yet established through regulations any power to proscribe several of the components ofthe smokestack emissions sought to be abated as harmful to health, to the enjoyment of public rights or polluting to water.

"The exhaustion doctrine, however, applies where an administrative agency alone has authority to pass on every question raised by the one resorting to judicial relief, but does not apply in relation to a question which, even if properly determinable by an administrative tribunal, involves a question of law, rather than one of fact." Pan American Petroleum Corp v. El Paso Natural Gas Co. 77 N.M. 481, 424 P.2d 397.

Whether the smoke from the Four Corners' stacks contains excessive particulate matter or excessive sulphur dioxide is, of course, within the purview of the Environmental Improvement Agency of New Mexico and is concededly covered by their regulations and is being monitored by them. Whether that smoke content also is such as to be "injurious to public health . . ." or ". . . interferes with the exercise and enjoyment of public rights . . ." so as to be an abatable public nuisance under 40A-8-1 supra from whence the quotes come is ultimately a question of law.

As to the primary jurisdiction theory, there as well the relief sought from the Court is different than that now available from the Environmental Improvement Agency. If that agency could equally afford the relief sought and was going forward with such a determination, then there might be good reason for the Court to defer until the agency results could be viewed. This would thus prevent the Court from launching into an inquiry for which the agency might be better equipped. Plausibility to this approach is given to plaintiffs' prayer for relief which not only asks the abatement of the nuisance, but audaciously offers an explicit blueprint for the defendants' achieving it.

Argument is made that the agency with its experts, not the Court, is better able to do the task. The Courts daily rely on expertise to aid them in arriving at factual conclusions. Recalling a few within the past two months, many medical doctors, various engineers, well drillers, chemists, auto accident reconstruction [2 ELR 20013] specialists all have testified before this Court in their field of expertise in trials of various kinds. No personal expertise is required of the Court or its staff in any of the fields to reach findings of fact. In the instant case, the kind of findings and conclusions that might be required are set out in the comments on point three as quotes from the statute under which this action is brought.

That the Court might have to administer its decree should it impose one is no deterrent to its affording relief if proper. Masters, receivers and marshalls or sheriffs are the traditional arms of the Court when appropriate.

Fourth: The regulation of defendants' actions required by the suit if relief asked is granted would make of the Court an administrative body doing legislative and not judicial functions.

Some of plaintiffs' proposed solutions to afford the relief sought do sound like a petition seeking the adoption of regulations by an administrative agency and lend leverage to defendants' argument on this point; but, not enough. The determinations to be made are neither as complicated or extensive as either party proposes, nor the trial necessarily as ponderous as an administrative tribunal might carry on. As indicated, adjudication of limited legal rights is involved, not broad legislation for the future.

Fifth: The nuisance abatement statute under which the suit is brought is void for lack of inclusion in the bill title by which it was enacted.

Defendants are correct in stating that the bill enacted by the 1963 Legislature as Chapter 303 of that year's laws as the comprehensive criminal code in which is found the article on criminal nuisance of which the civil remedy for abatement is a part, did not specifically mention in the title of the bill anything about the nuisance civil remedy which the bill contained. Whether an enactment met the test of Article 4, Section 16, New Mexico Const., by expressing the subject embraced in the title has been frequently litigated. In Re Estate of Welch, 80 N.M. 448, 457 F.2d 380, the guideline for evaluating the sufficiency of a bill title is stated:

". . the title to a legislative enactment need not be an index of everything in the act itself, but need only give notice of the subject matter of the legislation and is sufficient if, applying every reasonable intendment in favor of its validity, it may be said that the subject of the legislative enactment is expressed in the title."

This same principle has been reaffirmed without change frequently. The title of the questioned measure said that it was: "An act providing for a revised criminal code . . ."

A more recent case turned back a challenge to the validity of a portion of the municipal code made on similar grounds. City of Raton v. Sproule, 78 N.M. 138, 429 P.2d 336. That act, as the one questioned here, was a mass revision and recodification of existing law. Even though it added a few provisos not in the law before, and dropped a few, as did the revised criminal code, the broad reference in the title was adequate to express the general subject matter encompassed. A late ground for dismissal was brought out in the oral argument and mentioned in the briefs submitted thereafter. This should probably have been put in the list as Item Sixth: The complaint does not state a cause of action, for it is not contended that the acts of defendants are done "without lawful authority" so as to meet the statutory definition of a nuisance as spelled out in 40 A-8-1 NMSA quoted Page 2 supra.

Such an allegation is unnecessary and would be meaningless. If the defendants have a license or legal exception authorizing them to do what is complained of as a nuisance justifying or excepting the alleged acts sought to be abated from either prosecution under criminal law, where the definition is found, or from the civil prosecution, it would be a matter of affirmative defense. They make no such contention by reference to any law or license. This ground, too, must fail.