December 26, 2012 – New Mexico Cattle Growers’ Association v. New Mexico Water Quality Control Commission, New Mexico Environment Department, New Mexico Energy, Minterals, and Natural Resources Department, and New Mexico Game and Fish Department, No. 31,191

IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Opinion Number: 	________________
Filing Date: 	December 26, 2012
NO. 31,191
NEW MEXICO CATTLE GROWERS’ ASSOCIATION,
Petitioner-Appellant,
v.
NEW MEXICO WATER QUALITY CONTROL
COMMISSION, NEW MEXICO ENVIRONMENT
DEPARTMENT, NEW MEXICO ENERGY,
MINERALS, AND NATURAL RESOURCES
DEPARTMENT, and NEW MEXICO GAME AND
FISH DEPARTMENT,
Respondents-Appellees,
and
AMIGOS BRAVOS, NEW MEXICO BACKCOUNTRY
HUNTERS AND ANGLERS, NEW MEXICO TROUT,
NEW MEXICO WILDLIFE FEDERATION, and
WILDEARTH GUARDIANS,
Intervenors-Appellees.
IN THE MATTER OF AMENDED PETITION TO NOMINATE SURFACE
WATERS 	IN 	FOREST 	SERVICE 	WILDERNESS 	AS 	OUTSTANDING
NATIONAL RESOURCE WATERS

and
IN 	THE 	MATTER 	OF 	REQUEST 	TO 	AMEND 	ANTIDEGRADATION
POLICY IMPLEMENTATION PROCEDURES AND TO ISSUE GUIDANCE
FOR NONPOINT SOURCE DISCHARGES IN AREAS DESIGNATED AS
ONRWS
APPEAL FROM THE WATER QUALITY CONTROL COMMISSION
Felicia L. Orth, Hearing Officer
David Mathews, LLC
David L. Mathews
Albuquerque, NM
for Appellant
Gary K. King, Attorney General
Zachary Shandler, Assistant Attorney General
Santa Fe, NM
for Appellee New Mexico Water Quality Control Commission
New Mexico Environment Department
Ryan Flynn, General Counsel
Santa Fe, NM
for Appellee New Mexico Environment Department
New Mexico Department of Game and Fish
James H. Karp, General Counsel
Santa Fe, NM
for Appellee New Mexico Department of Game and Fish

New Mexico Energy, Minerals and Natural Resources Department
Sonny Ray Swazo, Assistant General Counsel
Santa Fe, NM
for Appellee New Mexico Energy, Minerals and Natural Resources Department
Western Environmental Law Center
Erik Schlenker-Goodrich
Taos, NM
for Appellees Amigos Bravos, New Mexico Backcountry Hunters and Anglers, New
Mexico Trout, and New Mexico Wildlife Federation
WildEarth Guardians
Samantha Ruscavage-Barz
Santa Fe, NM
for Appellee WildEarth Guardians

OPINION
KENNEDY, Judge.
{1} 	This case examines whether the New Mexico Cattle Growers’ Association
properly appealed from a regulatory proceeding of the New Mexico Water Quality
Control Commission (WQCC) directly to this Court by showing that it is adversely
affected by the adopted regulations as is required by statute. 	The Cattle Growers’
Association appealed the WQCC’s designation of named perennial waters within
United States Forest Service Wilderness Areas as Outstanding National Resource
Waters. 	We hold that the Cattle Growers’ Association has not shown that it is
adversely affected, thus failing to establish a statutory requirement for pursuing its
appeal, which we dismiss.
I. 	BACKGROUND
{2} 	The New Mexico Environment Department, New Mexico Department of Game
and Fish, and New Mexico Energy, Minerals and Natural Resources Department
(collectively, Departments) petitioned the WQCC to nominate surface waters in Forest
Service Wilderness as Outstanding National Resource Waters and amend the WQCC’s
anti-degradation policy pursuant to 20.6.4 NMAC and NMSA 1978, Section 74-6-4
(1993). The Departments initiated the petition on February 25, 2010, after over a year
of public outreach across the state. The WQCC accepted the petition and set a hearing

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date in September 2010. The Departments then moved to amend their petition to limit
its scope by excluding intermittent waters and tributaries.
{3} 	The Cattle Growers’ Association is an organization that exists to support the
cattle industry in New Mexico. One of its goals is to provide an official and united
voice on issues of importance to the cattle producers and feeders. In a motion to the
WQCC, it challenged both the original petition and the motion to amend. The hearing
officer denied the Cattle Growers’ Association’s motion, but ordered the Departments
to re-publish notice of the narrowed petition. The amended petition was submitted to
the WQCC on May 17, 2011.
{4} 	Several organizations and individuals submitted Notices of Intent to Submit
Technical Testimony to the WQCC. 	Among them were the Cattle Growers’
Association, local water commissions, individual citizens, and environmental and
avocational 	groups 	concerned 	with 	wilderness 	streams, 	including 	WildEarth
Guardians, Amigos Bravos, New Mexico Backcountry Hunters and Anglers, New
Mexico Trout, and New Mexico Wildlife Federation. The WQCC held a hearing on
the petition on September 14 through 17, and October 12 through 14, 2010. 	The
parties subsequently provided written closing arguments.
{5} 	The WQCC adopted the amended petition on November 30, 2010. 	The
adoption was codified in an Order and Statement of Reasons dated December 16,

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2010. The Cattle Growers’ Association appealed, claiming that the designation of
waters in the order was too sweeping and that the petition included fatal procedural
flaws. 	Amigos Bravos and several other environmental groups intervened as
Appellees.
II. 	DISCUSSION
{6} 	The Departments argue that the Cattle Growers’ Association may not appeal,
claiming that the Cattle Growers’ Association was unaffected by the regulations
because grazing permittees, as a designated pre-existing land use, were specifically
exempted 	from 	Outstanding 	National 	Resource 	Waters 	requirements.
20.6.4.8(A)(3)(d) NMAC. 	The Departments argue that, due to this exception, the
evidence at the hearing showed that there would be no negative economic impact on
the grazing allotments affected by Outstanding National Resource Waters designation.
The Cattle Growers’ Association did not claim in its brief that it is adversely affected
by the regulations, thus allowing it to bring the appeal. 	It also filed no reply in
response to the Departments’ argument.
{7} 	The governing statute, NMSA 1978, § 74-6-7 (1993), provides that appeals
from the WQCC may be heard by this Court if a petitioner is “adversely affected by
a regulation adopted by the commission” or has “participated in a permitting action
or appeal of a certification before the commission and . . . is adversely affected by

4
such action[.]” 	Section 74-6-7(A). 	When evaluating this apparent limitation to
bringing suit under a statutory cause of action, we look to the Legislature’s intent as
expressed in the act or other relevant authority. Key v. Chrysler Motors Corp., 1996-
NMSC-038, 121 N.M. 764, 768-69, 918 P.2d 350, 354-55.
{8} 	Section 74-6-7 twice states the Legislature’s intent that only those “adversely
affected” by a regulation may appeal from the regulation’s adoption. The requirement
applies both those who participated in the rulemaking and those who did not. We note
that the statute previously permitted an appeal by “any person who is or may be
affected by a regulation.” Kerr-McGee Nuclear Corp. v. N.M. Water Quality Control
Comm’n, 98 N.M. 240, 242, 647 P.2d 873, 875 (Ct. App. 1982) (alteration, internal
quotation marks, and citation omitted). The law of statutory construction presumes
that when the Legislature amends a statute, it intends to change the existing law.
Wasko v. N.M. Dep’t of Labor, 118 N.M. 82, 84, 879 P.2d 83, 85 (1994). Here, the
change narrows the law by placing a heightened requirement that the appellant
experience an adverse effect, indicating the Legislature’s intent to restrict the field of
potential appellants.
{9} 	The issue of adverse impact is usually found in cases addressing standing. See
Key, 1996-NMSC-038. “Where the Legislature has granted specific persons a cause
of action by statute, the statute governs who has standing to sue.” 	San Juan Agric.

5
Water Users Ass’n v. KNME-TV, 2011-NMSC-011, ¶ 8, 150 N.M. 64, 257 P.3d 884.
There is no significant difference between having standing to sue and having a cause
of action. Key, 1996-NMSC-038, 121 N.M. at 768, 918 P.2d at 354. “When a statute
creates a cause of action and designates who may sue, the issue of standing becomes
interwoven with that of subject matter jurisdiction.” 	Disabled Am. Veterans v.
Lakeside Veterans Club, Inc., 2011-NMCA-099, ¶ 7, 150 N.M. 569, 263 P.3d 911
(internal quotation marks and citation omitted). 	When the issue of standing is
considered jurisdictional, it may be raised at any stage of the proceedings, even sua
sponte by the appellate court. Id. (clarifying that “standing is a jurisdictional question
because [the statute] creates a cause of action and explicitly designates who is entitled
to bring an action under that provision”).
{10} 	Adverse effect usually arises in standing cases because, unlike in this case, the
parties are not governed by a statutory cause of action and, therefore, must challenge
on constitutional grounds to which standing is the threshold issue. See Lujan v. Nat’l
Wildlife Fed’n, 497 U.S. 871, 883 (1990) (holding that “to be ‘adversely affected or
aggrieved within the meaning’ of a statute, the plaintiff must establish that the injury
he complains of (his aggrievement, or the adverse effect upon him) falls within the
‘zone of interests’ sought to be protected by the statutory provision whose violation
forms the legal basis for his complaint” (alteration omitted); Mt. Emmons Mining Co.

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v. Town of Crested Butte, 690 P.2d 231, 239 (Colo. 1984) (en banc) (enforcing the
requirement that “a party challenging the constitutionality of the statute or ordinance
must show that the enactment will have an adverse effect on its present or imminent
conduct”). It is settled in New Mexico that, when there is no statute at play, only a
party who has a real and substantial interest in the subject matter before the court and
who is aggrieved or prejudiced by the decision of the trial court may appeal. Galvan
v. Miller, 79 N.M. 540, 548, 445 P.2d 961, 969 (1968). The association of adverse
effect and the threshold issue of standing indicates the importance that the appellant,
even in a statutory appeal such as this one, show the court why it is adversely affected.
{11} 	Although the operation of the “adversely affected” requirement in Section 74-6-
7 has not yet been addressed in New Mexico law, other courts with similar statutes
have found it to be a necessary element of an appeal from a rulemaking. 	See ANR
Pipeline Co. v. FERC, 205 F.3d 403, 408 (D.C. Cir. 2000) (stating that a company
lacked standing to petition for review of an environmental administrative decision
because the statute provides for review of aggrieved parties, and the company failed
to show that it was aggrieved or suffered any environmental harm); Coates v. City of
Cripple Creek, 865 P.2d 924, 926 (Colo. Ct. App. 1993) (finding that “the record
establishes the requisite adverse effects of the rezoning upon [owners of land adjacent
to rezoned land] to grant them standing to challenge the validity of the [zoning]

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ordinance”). In New Mexico, a similar statute that requires a party be “aggrieved” in
order to appeal a decision of a zoning board has been interpreted as requiring
“standing to appeal” the decision. Citizens for Los Alamos, Inc. v. Inc. Cnty. of Los
Alamos, 104 N.M. 571, 573, 725 P.2d 250, 252 (1986); NMSA 1978, § 3-21-9 (1999).
{12} 	The Cattle Growers’ Association fails to make any demonstration that its
members’ interests would be adversely affected for purposes of appeal. Additionally,
it failed to allege such adverse effects in its testimony presented to the WQCC. The
executive director of the Cattle Growers’ Association, Caren Cowan, testified at the
hearing that, “[i]f we take livestock out of the area, over time, we’re going to
undermine the infrastructure of the industry and, therefore, put other businesses out
of business.” Cowan alleged in her technical testimony that “[a]s livestock producers
. . . are forced out of business, the entire agricultural economy of the region . . . will
begin to disintegrate and then be eliminated[.]” However, she did not describe how
the Outstanding National Resource Waters designation would remove livestock from
any area affected by the designation, force producers out of business, or drive down
the herd size.
{13} 	Cowan also testified at the hearing that the Cattle Growers’ Association was
concerned primarily about future lawsuits against the Forest Service to remove
grazing allotments, rather than the designation of the waters as Outstanding National

8
Resource Waters. The Cattle Growers’ Association mentioned this concern again in
its closing argument. 	However, Cowan had no examples of any lawsuits relating
grazing allotments to previous Outstanding National Resource Waters designations
in New Mexico or other states. To proceed with its appeal in New Mexico, the Cattle
Growers’ Association must show injury or a real risk of future injury. ACLU of N.M.
v. City of Albuquerque, 2008-NMSC-045, ¶ 11, 144 N.M. 471, 188 P.3d 1222. 	A
general, undifferentiated threat of hypothetical harm to some unidentifiable person
will not serve to establish injury. 	Id. ¶ 18. The fear of future lawsuits not directly
stemming from the Outstanding National Resource Waters designation is hypothetical
harm and does not establish that the Cattle Growers’ Association will be adversely
affected.
{14} 	The Cattle Growers’ Association’s only other witness, Biz Ladner, an
administrative assistant for the Cattle Growers’ Association, also did not identify any
adverse impact to the members of the group and, in response to cross-examination by
the Environment Department, conceded that the Cattle Growers’ Association did not
submit any data or examples that show the cattle industry would suffer a negative
economic effect as a result of the designation. 	The Cattle Growers’ Association’s
witnesses also testified that raising cattle on designated wilderness is more difficult
than on private land due to the restraints on machine use and the lack of roads.

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Because the wilderness designations are already in place, we do not find this argument
relevant.
{15} 	Finally, in its Notice of Intent to the WQCC, the Cattle Growers’ Association
failed to allege any harm that would befall its members from the designation. 	We
recognize that such an allegation may not be necessary to participate in the hearing.
{16} 	Generally, this Court “will not search the record for facts, arguments, and
rulings in order to support generalized arguments.” Muse v. Muse, 2009-NMCA-003,
¶ 72, 145 N.M. 451, 200 P.3d 104. Nevertheless, in this case, the Court searched the
record and was unable to find any adverse effect that would give the Cattle Growers’
Association right to an appeal.
III. 	CONCLUSION
{17} 	Because the Cattle Growers’ Association failed to make any showing that it was
adversely affected by the WQCC’s regulations, it did not comply with the statutory
prerequisite to appeal the regulations. We dismiss.

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{18} 	IT IS SO ORDERED.
_______________________________
RODERICK T. KENNEDY, Judge
WE CONCUR:
_________________________________
CELIA FOY CASTILLO, Chief Judge
_________________________________
LINDA M. VANZI, Judge