A-1-CA-35441 | Omnilex

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
Court of Appeals of New Mexico

ANIMAL PROTECTION OF NEW Filed 2/11/2019 8:53 AM
MEXICO, THE HUMANE SOCIETY A |
OF THE UNITED STATES, MAYA me fd
ANTHONY, TERESA DUBOIS, JEAN Mark Reynolds
OSSORIO, PETER OSSORIO, and
JOHN OTIS,

Plaintiffs-Appellants,
v. NO. A-1-CA-35441
NEW MEXICO GAME COMMISSION,

Defendant-Appellee.

APPEAL FROM THE NEW MEXICO GAME COMMISSION
Paul M. Kienzle III, Chairman

Riley Safer Holmes & Cancila, LLP
Bruce A. Wagman
San Francisco, CA

Jones, Snead, Wertheim & Clifford, P.A.
Samuel C. Wolf
Santa Fe, NM

for Appellants

New Mexico Department of Game and Fish
Jacob Payne, General Counsel

Michael J. Thomas, Deputy General Counsel
Santa Fe, NM

for Appellee

ist

MEMORANDUM OPINION
BOGARDUS, Judge.
{i} Various individuals and wildlife protection organizations (Appellants) filed a
direct appeal to this Court from the New Mexico Game Commission’s (the
Commission) 2016 amendment to a bear and cougar management and hunting rule
(the Cougar Rule) promulgated under the New Mexico Fish and Game Act, NMSA
1978 §§ 17-1-1 to 17-2-32 (1921, as amended through 2015). Before briefing the
merits, the Commission moved to dismiss the appeal, contending this Court lacks
subject matter jurisdiction. We agree with the Commission and dismiss.
BACKGROUND
723 The Cougar Rule establishes open hunting seasons and devises “regulations,
rules, and procedures” governing the distribution and issuance of licenses to hunt
cougars, setting forth the parameters for the length of cougar season and the areas in
which cougars may be hunted, and authorizing certain hunting and trapping
methods. See 19.31.11 NMAC. The Commission, pursuant to its regulatory
authority, see NMSA 1978, §§ 17-1-14 (2015), 17-1-26 (1947), proposed certain
changes to the Cougar Rule, which were adopted by the Commission after notice
and opportunity for public comment. The revised version of the rule, which went
into effect on April 1, 2016, made various changes to the predecessor version of the

rule, including increasing the number of cougars that can be hunted in certain areas

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of the state, authorizing the trapping and snaring of cougars on state trust lands and
private lands without a special permit, and shortening the sport trapping season.

3} Appellants filed a direct appeal in this Court, arguing that the Commission’s
amendment to the Cougar Rule was without scientific support and was therefore
arbitrary, capricious, and unsupported by substantial evidence.

{4} The Commission moved to dismiss the appeal for lack of subject matter
jurisdiction. In seeking dismissal, the Commission contends there is no specific
constitutional or statutory right to appeal actions taken by it under the Fish and Game
Act and, therefore, Appellants’ right of review is not by way of a direct appeal, but
via a writ of certiorari from the district court. See Rule 1-075 NMRA (setting out
procedure for review by district court of administrative decisions and orders when
there is no statutory right of appeal or other statutory right of review).

{5} In response, Appellants assert that a direct right to appeal to this Court exists
on the basis of the plain language of a provision found in the Wildlife Conservation
Act (WCA), NMSA 1978, §§ 17-2-37 to -46 (1974, as amended through 1999). That
provision authorizes “[a]ny person adversely affected” by a regulation adopted by
the Commission to appeal to the Court of Appeals. Section 17-2-43.1(B).

DISCUSSION

I. Jurisdiction and Standard of Review
{6} | The New Mexico Court of Appeals is a court of limited jurisdiction. State ex

rel. Dep't of Human Servs. v. Manfre, 1984-NMCA-135, 49, 102 N.M. 241, 693

Lee)

P.2d 1273. Under Article VI, Section 29 of the New Mexico Constitution, this Court
may be authorized by law to directly review decisions of state administrative
agencies and may be authorized by rule of our Supreme Court to issue writs. In all
other cases, we exercise appellate jurisdiction as provided by law. Manfre, 1984-
NMCA-135, €9.

ij; Asacourt of limited jurisdiction, we review administrative agency decisions
only “when express legislative authorization specifies a right of direct appeal.” J.
Here, the sole issue before us is whether the Legislature has authorized a direct
appeal allowing us to review the Commission’s amended regulation. To resolve that
issue, we must construe the meaning of Section 17-2-43.1(B), which is a question of
law we review de novo. See Marbob Energy Corp. v. N.M. Oil Conservation
Comm'n, 2009-NMSC-013, 9] 5, 7, 146 N.M. 24, 206 P.3d 135.

{8} Lf the statutory language is “clear and unambiguous, we give effect to that
language and refrain from further statutory interpretation.” State v. Smith, 2009-
NMCA-028, 98, 145 N.M. 757, 204 P.3d 1267 (internal quotation marks and
citation omitted). A court’s “primary goal in interpreting a statute is to give effect to
the Legislature’s intent[,]” which “is to be determined primarily by the language of
the act, and words used in a statute are to be given their ordinary and usual meaning
unless a different intent is clearly indicated.” V.M. Bldg. & Constr. Trades Council

v. Dean, 2015-NMSC-023, §,11, 353 P.3d 1212 (internal quotation marks and

citations omitted). “The text of a statute . . . is the primary, essential source of its
meaning.” NMSA 1978, § 12-2A-19 (1997); see Nat’l Educ. Ass'n of N.M. v. Santa
Fe Pub. Sch., 2016-NMCA-009, 7 6, 365 P.3d 1.

{9} | While the simplicity of the plain language rule is attractive, we must examine
Appellants’ interpretation of Section 17-2-43.1(B) in relation to the entire statute, so
that we can ensure “words are not interpreted outside of any relevant legislative
context.” See State v. Martinez, 1998-NMSC-023, § 9, 126 N.M. 39, 966 P.2d 747.
We must construe the entirety of the statute and consider al] provisions in relation to
one another so that no part of the statute is rendered superfluous. Regents of Univ.
of N.M. v. N.M. Fed’n of Teachers, 1998-NMSC-020, § 28, 125 N.M. 401, 962 P.2d
1236.

WI. The Legislature Has Not Authorized a Direct Appeal of the Commission’s
Amended Cougar Rule

{10} Appellants argue that the plain language of Section 17-2-43.1(B) specifically
authorizes appellate review. This section, found within the WCA, states that “[a]ny
person adversely affected by a regulation adopted by the [C]ommission may appeal
to the [CJourt of [A]ppeals.” Jd. Appellants contend that this Court should look no
further than this language, because “[t]he text of a statute or rule is the primary,
essential source of its meaning.” Section 12-2A-19. The Commission acknowledges
the WCA’s judicial review section grants this Court jurisdiction over appeals of

regulations promulgated pursuant to the WCA, but emphasizes that the Cougar Rule

was not issued under the ambit of the WCA, but was promulgated pursuant to its
general authority to issue regulations related to game and fish. See § 17-1-14
(commission’s general powers and duties); § 17-1-26 (commission’s power to
establish rules and regulations). Thus, the Commission argues the WCA’s judicial
review section does not apply to the Cougar Rule and cannot be used to create
jurisdiction in this Court where none otherwise exists.

(4 Applying the rules of statutory construction discussed above compels the
conclusion that Section 17-2-43.1(B) of the WCA applies specifically and
exclusively to regulations promulgated pursuant to that Act, and cannot be imported
into our analysis here to provide a right of appellate review extending to all
regulations that the Commission is empowered to issue. To reach that conclusion,
we need only examine and contrast the Commission’s general responsibilities under
the Fish and Game Act with its specific obligations under the WCA.

{123} The Commission’s purpose is “to provide an adequate and flexible system for
the protection of the game and fish of New Mexico and for their use and development
for public recreation and food supply[.]” NMSA 1978, § 17-1-1 (1931). The
Commission has broad regulatory authority to carry out its purpose to protect New
Mexico wildlife for the benefit of its citizens. State ex rel. Sofeico v. Heffernan,
1936-NMSC-069, | 26, 41 N.M. 219, 67 P.2d 240. The Commission is authorized

to issue rules and regulations relating to wildlife, including issuing regulations

“providing when, to what extent, if at all, and by what means game animals, birds
and fish may be hunted [or] taken[.]” Section 17-1-26. Although the Commission is
required to hold hearings to review the propriety of its rulemaking activities
“concerning hunting or fishing” upon the petition of a certain percentage of the
county electarate, see NMSA 1978, § 17-1-27 (1921), the Fish and Game Act
contains no provision for judicial review of the regulations adopted thereunder by
the Commission.

43} The Commission’s distinct obligations under the WCA are to identify and
protect threatened and endangered species indigenous to the state. See §§ 17-2-39, -
41, In order to carry out the WCA’s purpose, the director of the department of game
and fish is obligated to conduct a biennial review of all listed species of wildlife and
conduct investigations of potentially threatened or endangered species in order to
make recommendations to the Commission for changing the list of threatened or
endangered species as circumstances may warrant. Section 17-2-41(B). The
investigative and review procedures set out in the WCA are specific and detailed,
requiring the director, among other things, to create a public repository file to
maintain all underlying data pertaining to the investigation process or a potential
species recovery plan. Section 17-2-40(B)-(F). Once the investigation is complete,
the director makes recommendations to the commission regarding listing, not listing,

or delisting species. Section 17-2-40(K), After receiving recommendations, the

Commission makes the public repository file available and holds public hearings to
present the findings of the investigation. Jd. At those hearings, people may submit
additional written technical and scientific testimony, as well oral comments, views,
and data. /d. As part of this comprehensive and exhaustive statutory framework, the
Legislature saw fit to include in the WCA an express provision that provides an
avenue for direct appeal of regulations implemented by the Commission. Section
17-2-43.1(B) (“Any person adversely affected by a regulation adopted by the
[C]ommission may appeal to the [CJourt of [A]ppeals. All appeals shall be upon the
record made at the hearing or contained in the public repository file[.}”).

{14} As indicated, the Legislature has delegated to the Commission both the
general authority to manage wildlife so that New Mexicans can enjoy access to
wildlife for hunting, fishing, and other public recreational purposes, and the specific
authority, limited by a detailed and thorough investigative review process, to identify
threatened or endangered species in order to protect them. Reading these provisions
together in the context of the Commission’s general regulatory obligations under the
Fish and Game Act and its specific obligations pursuant to the WCA, establishes
that the purpose of the judicial review provision of Section 17-2-43.1(B) is to
provide immediate review of regulations promulgated pursuant to the WCA after the

Commission completes the entire review, investigation, and listing/delisting process.

Immediate review of a WCA-promulgated regulation is appropriate given the

ie)

importance of protecting endangered or threatened wildlife while at the same time
ensuring that conservation measures do not unnecessarily infringe on the public’s
right to enjoy indigenous wildlife.

{15} Appellants’ plain language argument asks us to ignore the second sentence of
Section 17-2-43.1(B), which expressly contemplates appellate review of the record
created at “the hearing” or contained in “the public repository file.” Appellants argue
that appellate review of “the hearing” means review of any record generated at any
hearing held by the Commission. Appellants’ interpretation ignores the limiting
function of the word “the.” The use of the definite article “the” immediately before
“hearing” and immediately before “public repository file” indicates that “hearing”
and “public repository file” are not general categories of materials, but are the
specific hearings and files that must be created as part of the WCA’s clearly
delineated process to evaluate and list a species as threatened or endangered. See
generally State v. Whittington, 2008-NMCA-063, 4 12, 144. N.M. 85, 183 P.3d 970
(“The term ‘the’ is used as a function word to indicate that a following noun or noun
equivalent refers to someone or something previously mentioned or clearly
understood from the context of the situation.” (internal quotation marks and citation
omitted)). Appellants fail to explain why application of the WCA’s judicial review
section to the Cougar Rule is consistent with the WCA’s stated purpose to identify

and protect threatened and endangered New Mexico wildlife. Cougars are neither

threatened nor endangered, and the WCA’s purpose is not furthered by applying its
provisions to a regulation affecting a New Mexico species that is not at risk. Had the
Legislature intended to apply the WCA’s judicial review provision to rules affecting
New Mexico wildlife that are neither endangered nor threatened, it could have done
SO.

(16 Appellants raise two additional arguments, neither of which we find
persuasive. First, Appellants assert that the Cougar Rule invokes the WCA’s
authority because the rule bans the use of snares in jaguar-critical habitat and because
preservation of big horn sheep, a protected species, was a motivation for allowing
expanded trapping under the rule. Appellants’ argument infers that, because the
Cougar Rule’s provisions touch on protected species, the WCA’s authority is
implicated, creating jurisdiction in this Court. However, Appellants fail to show that
the Cougar Rule was enacted pursuant to the WCA’s authority to manage and protect
endangered or threatened species and cite no authority to support their claim of
“implied jurisdiction.” We have no duty to review this undeveloped argument. See
Corona v. Corona, 2014-NMCA-071, § 28, 329 P.3d 701.

117} Second, Appellants contend that the Commission’s failure to timely raise the
issue of subject matter jurisdiction unfairly prejudiced them. “{Sjubject matter
jurisdiction cannot be waived and may be raised at any time, including on appeal to

this Court.” Allred v. N.M. Dep’t of Transp., 2017-NMCA-019, { 20, 388 P.3d 998

(citing Becenti v. Becenti, 2004-NMCA-091, 9 13, 136 N.M. 124, 94 P.3d 867).
Thus, the Commission properly raised the jurisdictional issue even though the appeal
was pending when the Commission filed its dismissal motion.

(ig Finally, Appellants request that we transfer the appeal to district court in the
event we determine that we do not have subject matter jurisdiction to entertain the
appeal. Appellants fail to provide us with any authority that would allow us to simply
transfer this case when they failed to comply with procedural requirements. This
Court will not consider propositions that are unsupported by citation to authority.
ITT Educ. Servs., Inc. v. Taxation & Revenue Dep't, 1998-NMCA-078, 4 10, 125
N.M. 244, 959 P.2d 969.

{19} It is the province of the district court to issue a writ of certiorari upon review
of a writ petition for technical compliance with the requirements of Rule 1-075(B)-
(E), and upon a “prima facie showing that the court has jurisdiction over the agency,
that the petitioner is entitled to relief, and that the petitioner does not have a right to
review by appeal.” Rule 1-075(G). We will not circumvent that authority in the first
instance, and thus decline to transfer this appeal to the district court.
CONCLUSION

20} For the foregoing reasons, we dismiss this appeal for lack of subject matter

jurisdiction,

1| {21) IT IS SO ORDERED.
2 3 4
Kristina Bogardus
KRISTINA BOGARDUS, Judge
WE CONCUR:
5
Junda Wans.
6 LINDAM. VANZI, Judge
7
Julie Vargas
8
JULIE J. VARGAS, Judge
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February 11, 2019- Animal Protection of New Mexico v. New Mexico Game Commission, No. A-1-CA-35441

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