Mining Permits In New Mexico Commission Decisions Review
The Mining Commission review under the Surface New Mexico Mining Act is available for any "decision" of the director. See 69-25A-29(G).
In contrast, Section 15 of the Mining Act limits administrative review to an "order, penalty assessment or issuance or denial of a permit by the director." As we have already indicated, the discriminating focus of Section 15 of the Mining Act leads us to conclude that the legislature intended administrative review to apply to all questions concerning permit issuance.
The Mining Commission has the ultimate responsibility to ensure that mining operators comply with the Act and with the Commission's comprehensive regulations. See 69-36-7 (describing duties of the Commission).
Likewise, permit responsibility ultimately rests with the the Mining Commission.
The Mining Commission is not created as a mere rubberstamp of the Director or the Department. to the contrary, we have previously characterized the Director as one "who is in all respects an employee of the Commission" because the Commission has such authority over the Director's exercise of discretion. Old Abe Co. v. N.M. Mining Comm'n, 121 N.M. 83, 94, 908 P.2d 776, 787 (Ct. App. 1995).
Section 69-36-14(A)(1), 69-36-14(A)(2) entitled "Citizens suits," which states:
A person having an interest that is or may be adversely affected may commence a civil action on his own behalf to compel compliance with the New Mexico Mining Act 69-36-1 to 69-36-20 NMSA 1978. Such action may be brought against:
(1) the department of environment, the energy, minerals and natural resources department or the commission alleging a violation of the New Mexico Mining Act or of a rule, regulation, order or permit issued pursuant to that act;
(2) a person who is alleged to be in violation of a rule, regulation, order or permit issued pursuant to the New Mexico Mining Act.
In Section 69-36-15(A) the Mining Act provides for "administrative review":
Any order, penalty assessment or issuance or denial of a permit by the director pursuant to the New Mexico Mining Act [69-36-1 to 69-36-20 NMSA 1978] shall become final unless a person who is or may be adversely affected by the order, penalty assessment or issuance or denial of a permit files, within sixty days from the date of notice of the order, penalty assessment or issuance or denial of a permit, a written petition to the commission for review of the order, penalty assessment or issuance or denial of a permit by the director."
In addition, Section 15 provides for a timely hearing on the petition, either before the Commission or its hearing officer, accompanied by a grant of subpoena power and the taking of evidence on the record. the process culminates in the Commission's findings of fact and final decision which can be appealed on the record to district court. See 69-36-16(C).