Concerned Citizens for Nuclear Safety v. N.M. Water Quality Control Comm'n

The slip opinion is the first version of an opinion released by the Clerk of the Court of Appeals. Once an opinion is selected for publication by the Court, it is assigned a vendor-neutral citation by the Clerk of the Court for compliance with Rule 23-112 NMRA, authenticated and formally published. The slip opinion may contain deviations from the formal authenticated opinion. 1 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 2 Opinion Number: __________ 3 Filing Date: August 14, 2025 4 No. A-1-CA-41226 5 CONCERNED CITIZENS FOR NUCLEAR 6 SAFETY and HONOR OUR PUEBLO 7 EXISTENCE, 8 Petitioners-Appellants, 9 v. 10 NEW MEXICO WATER QUALITY 11 CONTROL COMMISSION, 12 Respondent-Appellee 13 and 14 TRIAD NATIONAL SECURITY, LLC and 15 NEW MEXICO ENVIRONMENT 16 DEPARTMENT, 17 Intervenors-Appellees, 18 IN THE MATTER OF THE PETITION FOR 19 REVIEW OF THE DECISION OF THE NEW 20 MEXICO ENVIRONMENT DEPARTMENT 21 ISSUING GROUND WATER DISCHARGE 22 PERMIT NO. DP-1132. 23 APPEAL FROM THE NEW MEXICO WATER QUALITY CONTROL 24 COMMISSION 1 Lindsay A. Lovejoy, Jr. 2 Santa Fe, NM 3 for Appellants 4 Raúl Torrez, Attorney General 5 Santa Fe, NM 6 Emily Bowen, Assistant Attorney General 7 Alexander W. Tucker, Assistant Solicitor General 8 Albuquerque, NM 9 for Appellee New Mexico Water Quality Control Commission 10 Gloria I. Lucero, Deputy General Counsel 11 Albuquerque, NM 12 for Appellee N.M. Environment Department 13 Montgomery & Andrews, P.A. 14 Jeffrey J. Wechsler 15 Kari E. Olson 16 Santa Fe, NM 17 Los Alamos National Laboratory 18 Maxine M. McReynolds 19 Christopher C. Stoneback 20 Los Alamos, NM 21 for Intervenors-Appellees Triad National Security, LLC 1 OPINION 2 BUSTAMANTE, Judge, sitting by designation. 3 {1} The opinion filed on May 19, 2025, is hereby withdrawn, and this opinion is 4 substituted in its place, following Respondent New Mexico Water Quality Control 5 Commission’s timely motion for rehearing, which this Court denies. 6 {2} This case arises from a decades-long effort by the Los Alamos National 7 Laboratory (the Laboratory), its various managing entities—Triad National 8 Security, LLC (Triad), the current managing entity for the Laboratory—and the 9 United States Department of Energy (DOE) (collectively, the Permitees) to receive 10 a ground water discharge permit from the New Mexico Environmental Department 11 (NMED) for the Laboratory’s radioactive liquid waste treatment facility (RLWTF). 12 NMED issued Permit No. DP-1132 (the Permit) on May 5, 2022. In accordance with 13 NMSA 1978, Section 74-6-5(O) (2009), Appellants Concerned Citizens for Nuclear 14 Safety and Honor Our Pueblo Existence (collectively, Citizens) timely filed a 15 petition for review with Appellee, the Water Quality Control Commission (WQCC). 16 The petition for review was granted on August 30, 2022. The WQCC subsequently 17 dismissed Citizens’ petition for “lack of standing” after it decided that Citizens were 18 not “adversely affected” by issuance of the Permit as required by Section 74-6-5(O). 19 Citizens appeal from the WQCC order dismissing their petition for review. We 20 conclude that the WQCC erroneously imposed an unduly narrow interpretation of 1 the statutory concept of “adversely affected.” We reverse and remand the matter to 2 the WQCC, ordering it to consider and resolve Citizens’ petition on its merits. 3 FACTUAL AND PROCEDURAL BACKGROUND 4 I. History of the Permit’s Permitting Process 5 {3} The administrative record in this matter exceeds 20,000 pages. The majority 6 of the record is not relevant to the narrow statutory interpretation issue we address 7 in this opinion, and there is no need to canvas the entire record. It is useful, however, 8 to summarize certain portions of the record to provide historical and procedural 9 context for our discussion. 10 {4} Construction of the RLWTF started in 1961 and processing of liquid waste 11 began in 1963. The record does not reveal any other activity until April 1996, when 12 NMED notified the Laboratory that a discharge permit was required. The first 13 application for a permit was filed in August 1996. The application has been 14 periodically amended since then as the design and function of the RLWTF evolved. 15 Drafts of the permits were periodically issued for public comment from 2003 to 16 2017. Though NMED determined as early as 2000 that a public hearing would be 17 required, no hearing was held until April 2018. Following the 2018 public hearing, 18 the hearing officer recommended issuance of the Permit. NMED agreed and filed its 19 final order approving and issuing the Permit in August 2018. In June 2019, however, 20 the WQCC “ruled that the former [h]earing [o]fficer’s job application and [2] 1 subsequent hiring by one of the parties created an improper appearance of bias 2 potentially affecting the Secretary [of NMED’s (the Secretary)] deliberation and 3 issuance of [the Permit].” The WQCC accordingly vacated the Secretary’s order and 4 remanded the matter to the NMED “for a new hearing with a newly appointed 5 [h]earing [o]fficer.” 6 {5} A second public hearing before the new hearing officer was held in November 7 2019. After receiving written closing arguments and proposed findings of fact and 8 conclusions of law from Citizens, NMED, Triad, and DOE, the hearing officer filed 9 his report recommending that the Permit be issued in the form proposed by NMED 10 and Triad. The Secretary’s June 24, 2020 order, filed in response to the hearing 11 officer’s report concluded that “[m]atters related to the appropriate regulatory 12 treatment of the RLWTF, . . . including the practicality of enforcement of the 13 applicable [Hazardous Waste Act (HWA), NMSA 1978, §§ 74-4-1 to -14 (1977, as 14 amended through 2021),] permit conditions, are properly raised before the 15 [Hazardous Waste Board] and not in this proceeding.” Interestingly, the Secretary’s 16 2020 order did not constitute final approval of the hearing officer’s report or result 17 in issuance of a permit. Instead, it remanded the matter to the Ground Water Quality 18 Bureau for further consideration of financial assurances regarding closure and post- 19 closure care of the facilities at RLWTF. The record is not clear how or when the [3] 1 remand issue was resolved. In any event, the permit was finally issued on May 5, 2 2022. 3 {6} Citizens are organizations composed of persons living downstream and in 4 close proximity to the point of discharge—or outfall—of wastewater from the 5 RLWTF. NMED and Triad recognize that Citizens have actively participated in the 6 public review of the Permit’s permitting process since at least 2013. NMED and 7 Triad also recognize that Citizens have consistently argued that the HWA should be 8 applied to the RLWTF rather than the Water Quality Act (WQA), NMSA 1978, 9 §§ 74-6-1 to -17 (1967, as amended through 2019). 10 {7} Among other pleadings, Citizens filed three formal motions asserting that it 11 was unlawful for NMED to issue a discharge permit for the RLWTF under the 12 authority of the WQA. The first motion—filed March 16, 2018—sought dismissal 13 of the “DP-1132 Proceeding” entirely. The first hearing officer denied the motion 14 one month later in a five-line order that provided no analysis of the issues briefed by 15 the parties. The second motion to dismiss the “DP Proceeding” was filed October 8, 16 2019. The second hearing officer denied the second motion solely on the basis that 17 the matter was to be heard anew after the first hearing officer’s report was vacated. 18 After the permit was issued and after the WQCC had granted their request for permit 19 review, Citizens filed a third motion requesting that the WQCC “revers[ing] the 20 issuance of [the Permit] for lack of subject matter jurisdiction.” The WQCC order [4] 1 denying the motion did not discuss the legal issue raised by Citizens. The WQCC 2 order instead referred to an order entered seventeen days before, staying proceedings 3 in the WQCC pending resolution of a purportedly related adjudication then in the 4 United States Environmental Protection Agency’s Environmental Appeals Board 5 (the EAB). 6 {8} In addition to the motions, Citizens argued to the hearing officer in their 7 proposed findings of fact, conclusions of law and final argument that NMED could 8 issue the Permit only if it proved that the RLWTF was exempt from the HWA under 9 the provisions of Section 74-6-12(B). In his revised report, the hearing officer 10 responded to Citizens’ arguments on their merits, concluding essentially that Section 11 74-6-12(B) did not provide for a stark HWA or WQA split of jurisdiction, in 12 particular given that the Permit’s permitting process did “not propose to regulate an 13 ‘. . . activity or condition subject to the authority of the environmental board.’” 14 Rather, the hearing officer stated that the Permit “is proposed to abate water 15 pollution.” Yet, the hearing officer also noted that Citizens’ pending motion raised 16 significant issues concerning the regulation of the RLWTF under the HWA, but 17 concluded that the issues were more properly dealt with in other forums. The hearing 18 officer was careful to note that the decision in the Permit’s proceeding was “based 19 upon and limited to the WQA and is not intended to address the application of the 20 HWA to other activities at the RLWTF.” [5] 1 {9} In sum, Citizens were actively involved in the public hearing process for at 2 least ten years prior to the issuance of the Permit. Citizens consistently argued that 3 it was unlawful for NMED to issue a discharge permit for the RLWTF under the 4 WQA because the HWA applied instead. The WQCC has steadfastly refused to 5 address Citizens’ arguments on their merits. 6 II. The Dismissal for Lack of Standing 7 {10} The August 2022 order staying proceedings in the WQCC was lifted in 8 February 2023 in response to a motion filed by Triad and the DOE alerting the parties 9 that the EAB had remanded its matter to the EPA regional office to receive more 10 comments from the public and revise its field work before reissuing the Permit. Triad 11 and NMED—who had not responded to Citizens’ petition for review because of the 12 stay—filed their answer briefs in March 2023. 13 {11} The issue of Citizens’ standing to continue participating in the permit review 14 process was first broached by Triad and the DOE in their answer brief. Keying off 15 of Triad’s suggestion, on March 20, 2023, the hearing officer requested another 16 round of simultaneous briefing specifically addressing standing. All parties filed 17 their briefs eleven days later. Six days after that, the hearing officer filed his report 18 on the issue, recommending that the WQCC “dismiss the [v]erified [p]etition with 19 prejudice on the grounds that [Citizens] lack standing and the [WQCC] lacks subject 20 matter jurisdiction to preside over this [p]etition.” The hearing officer acknowledged [6] 1 Citizens’ arguments that “permitting should be conducted under the NM Hazardous 2 Waste Act (HWA) and not the WQA” and that the failure to apply the more stringent 3 standards of the HWA “creates and enhanced risk of exposure to hazardous and 4 radioactive waste to members of HOPE and others in New Mexico.” The hearing 5 officer dismissed all of Citizens’ arguments concerning the application of the HWA 6 as irrelevant to the consideration of the Permit because it had been issued under the 7 authority of the WQA. In essence, the hearing officer concluded that HWA-related 8 concerns could not be considered to have adversely affected Citizens within the 9 meaning of Section 74-6-5(O). The hearing officer did not cite to Section 74-6-12(B) 10 or acknowledge Citizens’ argument that a permit could not be issued under the WQA 11 unless the RLWTF was exempt from the HWA. 12 {12} Accepting the hearing officer’s recommendation, the WQCC dismissed 13 Citizens’ petition for review with prejudice. The WQCC noted that, in its view, 14 Citizens “did not allege, much less establish, that they were adversely affected by 15 NMED’s DP-1132 . . . permitting action.” The WQCC summarized Citizens’ 16 argument as follows: “Rather than allege any adverse effect arising from NMED’s 17 . . . permitting action under the [WQA], [Citizens] claimed that some sort of 18 hazardous waste permitting (action) should have been conducted before NMED 19 under the [HWA] . . . and that the failure to conduct a permitting action under the 20 [WQA] . . . was what adversely affected them.” The WQCC concluded that [7] 1 administrative hearings under the HWA “are not matters within the jurisdiction of 2 the Commission, and claims alleging the same do not serve to confer standing before 3 the Commission.” The WQCC then rephrased the conclusion, stating that “[w]hether 4 a permitting action should have been conducted under the [HWA] is not relevant to 5 the question of whether under Section 74-6-5(O)[, Citizens] were adversely affected 6 by NMED’s permitting action in issuing [the Permit].” Like the hearing officer, the 7 WQCC did not mention Section 74-6-12(B). 8 DISCUSSION 9 {13} Our standard of review in appeals from actions of the WQCC is stated in 10 Section 74-6-7(B), which provides: “Upon appeal, the [C]ourt of [A]ppeals shall set 11 aside the commission's action only if it is found to be: (1) arbitrary, capricious or an 12 abuse of discretion; (2) not supported by substantial evidence in the record; or (3) 13 otherwise not in accordance with law.” 14 {14} The WQCC dismissed Citizens’ petition for review on the ground that 15 Citizens lacked standing under Section 74-6-5(O) because they did not establish that 16 they had been adversely affected by the issuance of the Permit. See id. (“A person 17 who participated in a permitting action before a constituent agency or a person 18 affected by a certification of a federal permit and who is adversely affected by such 19 permitting action or certification may file a petition for review before the 20 commission.”). Generally, whether a party has standing is a question of law which [8] 1 appellate courts review de novo. Forest Guardians v. Powell, 2001-NMCA-028, ¶ 5 , [2] 130 N.M. 368 , 24 P.3d 803 ; Prot. & Advocacy Sys. v. City of Albuquerque, 2008- 3 NMCA-149, ¶ 17, 145 N.M 156, 195 P.3d 1 . For purposes of considering the issue 4 of standing, courts accept as true all allegations of the complaint, and must construe 5 the complaint in favor of the complaining party. Powell, 2001-NMCA-028, ¶ 5 . 6 {15} As noted above, the WQCC concluded that challenging the jurisdiction of 7 NMED and the WQCC to issue a permit for the RLWTF under the WQA did not 8 fall within the concept of “adversely affected” under Section 74-6-5(O). The WQCC 9 and the Permittees did not—and, indeed, could not—dispute that Citizens actively 10 participated in the WQA process throughout the public hearing phases of it. In 11 addition, neither the WQCC or the Permittees have ever argued that Citizens did not 12 have sufficient environmental, aesthetic, health, recreational, and regulatory 13 concerns to allow them to participate in the permitting process. It is clear from the 14 affidavits appended to Citizens’ briefing to the WQCC on the standing issue that 15 they meet the liberal standards set by the United States Supreme Court and New 16 Mexico’s courts to establish standing in matters involving environmental activities. 17 See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 , 18 183 (2000); Benham v. Ozark Materials River Rock, LLC, 885 F.3d 1267, 1273 (10th 19 Cir. 2018); Ramirez v. City of Santa Fe, 1993-NMCA-049 , ¶¶ 8-16, 115 N.M. 417 , [20] 852 P.2d 690 . As such, we view the WQCC’s order as a purely legal decision [9] 1 involving the interpretation of the meaning of “adversely affected” in Section 74-6- 2 5(O). The WQCC’s approach to deciding the standing issue did not rely on any 3 factual deficit in Citizens’ status as entities with a real interest in the permitting 4 process. Rather, the WQCC resolved the issue by construing Section 74-6-5(O) as a 5 matter of law to not include challenges to its and NMED’s power to issue a permit 6 under the WQA. Thus, the case presents to us as a question of statutory 7 interpretation. 8 {16} Interpretation of statutes is a question of law, which appellate courts review 9 de novo. Wood v. N.M. Educ. Ret. Bd., 2011-NMCA-020, ¶ 12 , 149 N.M. 455 , 250 10 P.3d 881 . As a general matter, we are not bound by the WQCC’s interpretation of 11 Section 74-6-5(O). See Summers v. N.M. Water Quality Control Comm’n, 2011- 12 NMCA-097, ¶ 10, 150 N.M. 694 , 265 P.3d 745 . We accord some deference to 13 agency interpretations of statutory provisions if the issue presented implicates 14 special agency expertise or the determination of policy within the scope of the 15 agency’s function. N.M. Indus. Energy Consumers v. N.M. Pub. Regul. Comm’n, [16] 2007-NMSC-053, ¶ 19 , 142 N.M. 533 , 168 P.3d 105 ; Morningstar Water Users 17 Ass’n v. N.M. Pub. Util. Comm’n, 1995-NMSC-062 , ¶ 10, 120 N.M. 579 , 904 P.2d 18 28. Analysis of standing issues is not a matter within the WQCC’s special expertise 19 and, thus, no deference to its ruling is required. [10] 1 {17} As noted above, throughout its participation in the Permit’s review process 2 Citizens challenged the applicability of the WQA to the RLWTF. Citizens have 3 consistently argued that the HWA is the statutory/regulatory scheme that applies— 4 to the exclusion of the WQA.1 Citizens base their jurisdictional argument on Section 5 74-6-12(B), which provides: 6 The [WQA] does not apply to any activity or condition subject to the 7 authority of the environmental improvement board pursuant to the 8 [HWA], the Ground Water Protection Act, [NMSA 1978, §§ 74-6B-1 9 to -14 (1990, as amended through 2018)] or the Solid Waste Act[, 10 NMSA 1978, §§ 74-9-1 to -43 (1990, as amended through 2011)] 11 except to abate water pollution or to control the disposal or use of 12 septage and sludge. 13 In their petition for review, Citizens again asserted that “[i]t is undisputed the 14 RLTWF stores and treats hazardous waste. [The Laboratory] concedes that the 15 RLTWF will ‘receive and treat or store an influent wastewater which is hazardous 16 waste as defined in 40 C.F.R. § 261.3 (2024).’” From this, Citizens again asserted 17 that the HWA applies and that the WQA does not apply. In response, Appellees 18 maintain that the HWA does not apply because the RLTWF is exempt from federal 19 permitting, the application of which is the very purpose of the HWA. Yet under the 20 WQCC’s approach, this predicate question remains unresolved despite it affecting [1] Citizens also raised other, more technical issues with the applicability of the HWA. We do not discuss them because the statutory standing issue is sufficient to resolve the narrow question before us. [11] 1 the very jurisdiction upon which the WQCC is able to evaluate the propriety of the 2 requested permit in the first instance. 3 {18} Citizens correctly noted in their petition for review that, despite the 4 seriousness of its jurisdictional arguments, the hearing officer and the Secretary had 5 steadfastly refused to confront and resolve the issue. The hearing officer and the 6 WQCC again failed—or perhaps refused—to recognize the jurisdictional issue in 7 their analysis of the standing question. The hearing officer’s report did not 8 acknowledge that Citizens’ petition challenged the subject matter jurisdiction of the 9 WQCC and the applicability of the WQA to the RLWTF. Similarly, the WQCC 10 order failed to resolve or substantively consider Citizens’ challenge to the WQCC’s 11 subject matter jurisdiction to consider and approve NMED’s permitting process. 12 Instead, the WQCC decided that because Citizens had not challenged any 13 substantive provision of the Permit, they necessarily failed to prove that they were 14 adversely affected by the permitting action. We conclude that the WQCC 15 misinterpreted and misapplied Section 74-6-5(O). 16 {19} The phrase “adversely affected” as used in the WQA has been examined only 17 once by the courts. See N.M. Cattle Growers’ Ass’n v. N.M. Water Quality Control 18 Comm’n, 2013-NMCA-046, ¶ 7 , 299 P.3d 436 . In New Mexico Cattle Growers’ 19 Ass’n, this Court concluded that the Cattle Growers’ Association was not adversely 20 affected by the WQCC’s regulatory decision to designate certain surface waters in [12] 1 New Mexico as Outstanding National Resource Waters. The designation arguably 2 had some potential to remove livestock from the affected areas and reduce grazing 3 allotments. Id. ¶¶ 12, 13. The Association argued that the potential future effects of 4 the designation on the overall health of the cattle industry were enough to give it 5 standing to appeal. This Court disagreed. We noted that grazing permittees were 6 specifically exempted from the Outstanding National Resource Water requirements. 7 As such, the “evidence at the hearing showed that there would be no negative 8 economic impact of grazing allotments affected by [the] designation.” Id. ¶ 6. 9 Further, we noted that the Association had presented no evidence to contradict the 10 WQCC’s finding of no negative economic impact on its members or on the industry 11 as a whole. Id. ¶¶ 12, 13. Based on these two aspects of the record, we concluded 12 that the Association had not demonstrated any cognizable injury to its members. 13 {20} New Mexico Cattle Growers’ Ass’n thus involved a normal, fact-based 14 scenario involving no real-world injury to the Association or its members from the 15 WQCC’s regulatory action. New Mexico Growers’ Ass’n did not delve deeply into 16 the concept of “adversely affected” because it did not need to do so. The opinion 17 should not be read to establish a rule that only economic or other tangible real-world 18 effects can qualify as “adversely affected” under the WQA. 19 {21} Citizens’ argument is of a different order. Citizens’ challenge strikes at the 20 heart of the regulatory process followed by NMED and the WQCC by questioning [13] 1 whether the WQA applies to the RLTWF at all. If it does not, NMED and the WQCC 2 do not have subject matter jurisdiction to conduct the permitting process that resulted 3 in the issuance of the Permit. The question is whether persons otherwise having 4 standing under the normal fact-based criteria can pursue their jurisdiction argument 5 in a Section 74-6-5(O) proceeding without asserting specific errors or shortcomings 6 in the permitting process. We conclude they can. 7 {22} It is a commonplace that as creatures of statutory creation, administrative 8 agencies are limited to exercising only that power and authority expressly granted to 9 them by statute or necessarily implied by statute. Martinez v. State Eng’r Off., 2000- 10 NMCA-074, ¶ 22, 129 N.M. 413 , 9 P.3d 657 . In addition, an administrative agency 11 has the “authority at all times to examine facts and make a finding concerning its 12 own jurisdiction, subject, of course, to review by the courts.” Cibas v. N.M. Energy, 13 Mins. & Nat’l Res. Dep’t., 1995-NMCA-046 , ¶ 17, 120 N.M. 127 , 898 P.2d 1265 14 (citing State ex rel. State Corp. Comm’n v. Zinn, 1963-NMSC-048 , 72 N.M.29, 380 15 P.2d 182 ). Given these two aspects of the administrative legal landscape, we 16 conclude that, when an entity or person appropriately participating in a WQA 17 administrative process challenges an agency’s subject matter jurisdiction, the agency 18 must address and resolve the challenge on its merits. Put another way, the agency 19 has a threshold duty to determine if it has the power to act in the manner in which it 20 has been tasked—in this case, with approval or rejection of the permit at issue. It [14] 1 cannot—as happened here—delay, deflect, or defer resolution of a threshold 2 determination on grounds that relate to some possible defect in the person or entity 3 calling into question the authority of the administrative body. 4 {23} When evaluating qualifications to bringing suit or participating in 5 administrative processes, we must consider what the Legislature intended as 6 expressed in the words it chose. Key v. Chrysler Motors Corp., 1996-NMSC-038 , 7 ¶¶ 13,14, 121 N.M. 764 , 918 P.2d 350 . Inclusion of a requirement that petitioners 8 appealing from a permitting action must have participated in the process and be 9 adversely affected by it indicates that the Legislature wished to ensure that 10 petitioners had a demonstrated interest in the permit. In a word, the Legislature 11 imported the concept of standing to limit access to the petition for review mechanism 12 and prevent strangers to particular permit processes to intervene at the figurative last 13 minute. The words “adversely affected” by themselves, however, carry no hint that 14 the only legally relevant “adverse” effect under Section 75-6-5(O) must be found in 15 some facet of or mistake in the Permit itself. It is hard to conceive of a more 16 important structural “adverse” effect than to allow an administrative agency to 17 exercise a power it has not been granted in its foundational statutes. That adverse 18 effect—potentially allowing an agency to do what it is not empowered to do—is 19 sufficient to allow Citizens as participants in the permitting process to ask the 20 WQCC to consider the purely legal—but fundamental—question about the power [15] 1 of NMED to issue the Permit and the WQCC to approve it. Allowing Citizens to 2 pursue the issue does not conflict with or threaten the Legislature’s desire to limit 3 access to the petition for review process given that Citizens have unquestioned fact- 4 based standing to pursue an internal appeal on other “substantive” grounds. It would 5 be unreasonable to hold otherwise. See Britton v. Off. of the Att’y Gen., 2019- 6 NMCA-002, ¶ 27, 433 P.3d 320 . 7 {24} Our decision is bolstered by considerations of judicial and administrative 8 efficiency. Accepting the WQCC’s position would require Citizens to pursue 9 remedies in the courts pursuant to the Declaratory Judgment Act, NMSA 1978, 10 §§ 44-6-1 to -15 (1975), or by extraordinary writ. Our case law has addressed the 11 difficulties inherent in such scenarios in a limited number of cases. For example, in 12 Zinn, 1963-NMSC-048 , ¶¶ 14-24, our Supreme Court entered a permanent writ of 13 prohibition preventing the district court from entertaining a declaratory action 14 challenging the previously named State Corporation Commission from deciding in 15 the first instance whether it had the power to decide whether the plaintiff was 16 engaged in the transportation for hire—and was thus subject to the State Corporation 17 Commission’s licensing power. In Smith v. City of Santa Fe, 2007-NMSC-055 , 18 ¶¶ 25-27, 142 N.M. 786 , 171 P.3d 300 , our Supreme Court approved use of a 19 declaratory action to challenge the City of Santa Fe’s power to deny a well drilling 20 permit only because a city administrative proceeding had never been commenced. If [16] 1 the city had started an administrative process, the plaintiff would have been limited 2 to that process and would have been required to exhaust their administrative 3 remedies. 4 {25} The latest pronouncement from our Supreme Court is Citizens for Fair Rates 5 and the Environmental v. New Mexico Public Regulation Commission, 2022- 6 NMSC-010, 503 P.3d 1138 . There the Court agreed to hear and resolve a 7 constitutional challenge to the Energy Transition Act, NMSA 1978, §§ 62-18-1 to - 8 23 (1998, as amended through 2023), even though the New Mexico Public 9 Regulation Commission (the Commission) had appropriately refused to reach the 10 constitutional issues. Citizens for Fair Rates & the Env’t, 2022-NMSC-010 , ¶¶ 17- 11 25. The Court reasoned that it would be better to decide the preserved and argued 12 issue rather than require the protesting party to file a declaratory judgment action. 13 Id. ¶ 22. As the Court noted, requiring a collateral attack on the Commission’s order 14 would “invite chaos and preclude certainty.” Id. ¶ 24 (internal quotation marks and 15 citation omitted). The same considerations obtain here. It would be contrary to all 16 notions of judicial economy to require the question of NMED’s power to issue and 17 of the WQCC’s power to approve the Permit to be litigated outside of the lengthy 18 administrative process already in place. It would be particularly unwise to do so [17] 1 based on the WQCC’s artificially narrow construct of what “adversely affected” 2 means for purposes of review and appeal of NMED’s and the WQCC’s work. 2 3 CONCLUSION 4 {26} We reverse and remand the matter to the WQCC. On remand, the WQCC shall 5 consider and resolve Citizens’ Section 74-6-12(B) jurisdiction arguments on their 6 merits. Among the matters to be resolved on remand must be the merits of the 7 arguments raised below by Citizens related to the applicability of the HWA to the 8 Laboratory’s RLWTF and the effect of Section 74-6-12(B). To that end, WQCC 9 may, if need be, further remand this matter to the NMED to resolve issues, if any, 10 that the NMED has exclusive statutory authority to resolve. 11 {27} IT IS SO ORDERED. 12 __________________________________ 13 MICHAEL D. BUSTAMANTE, Judge, 14 Retired, sitting by designation. [2] Citizens also appealed from the WQCC’s refusal to vacate certain orders signed by the WQCC chair Stephanie Stringer while she was actively seeking employment with the DOE—one of the parties seeking the permit. Our reversal and the passage of time has mooted the main force of that portion of the appeal. We do not need to analyze the effects of Ms. Stringer’s actions in any detail for that reason, and because counsel for NMED admitted at oral argument that her actions created a “considerable due process issue” in general. On remand, we encourage the WQCC to proceed with care and caution to ensure that all decision-makers are unbiased. [18] 1 WE CONCUR: 2 ________________________________ 3 J. MILES HANISEE, Judge 4 ________________________________ 5 ZACHARY A. IVES, Judge