Duke City Lumber Co. v. New Mexico Environmental Improvement Board

P.2d 709 COMPANY, DUKE CITY LUMBER

Appellant, NEW MEXICO ENVIRONMENTAL IM- BOARD, Appellee.

PROVEMENT No. 4372. Appeals Court of New Mexico. Nov. 1980. Denied Rehearing Nov. 19,1981. Denied Certiorari Jan. Stockstill, R. Cooney R. and Susan

John Sisk, Roehl, Al- Modrall, Harris Sperling, & buquerque, appellant. Gen., Bingaman, Bruce Gar- Atty.

Jeff S. Gen., Merritt, ber, Asst. Attys. L. Weldon Fe, appellee. Santa

OPINION

HERNANDEZ, Judge. appeal from the action of This is Improvement (Board) Environmental Board 402 1975, as except provided Subsection quality a variance from an air con-

denying G, A.2, regulation. A.1, trol E and Section a woodwaste owning operating or person has at operated a sawmill appellant The cause, or suffer allow permit burner shall Mexico, the Española, New since burner to woodwaste emissions from the At time the plant 1960’s. the has construct- cent; of 20 opacity exceed equal or an ed a was installed to wigwam incinerator operating or wo- owning person and no generated burn all of the wood waste operates during burner which odwaste 247,000 cubic operation, approximately the the permit temper- night time hours shall yards. began Beginning appellant burner exhaust wood- of the woodwaste ature utilizing investigate methods degrees F. en- to be lower than gases has appellant time waste. Since unless the owner during night time hours tered into contracts with various firms demonstrate, the waste. satis- operator the sale of of this or can approximately 93% However, lower remaining 7% is incinerated. of the department, faction designed to opacity because the incinerator was an of 20 temperature can achieve larger burn a much volume of waste per cent better. remaining incineration of the waste results We remand for consideration further having smoke an in excess of proceedings. 1978, again In 1975 and in 1977 and

20%. preliminary There into are certain appellant appellee entered agreements in order to entitled of discon- which stated “assurance matters must be tinuance.” The perspective. these were that matter proper essence of view this appellant was utilize endeavoring First, developed to sell or evi which all*of the woodwaste and in the interim its upon appellee made dence which be in violation control might quality of air in nature. quasi-judicial decision 402(A); regulation would appellant applied to “[Q]uasi-judicial is a term ad continue to use its best to utilize all efforts empow or officers ministrative boards of the wood refuse mini- and also seek to facts, evidence, weigh investigate ered capacity mize the omissions. for official draw conclusions as a basis judicial actions, discretion of 8, 1979, and exercise February appellant filed a Amis, v. 493 P.2d Thompson nature.” petition Quality for variance Air Control 1259, (1972). 402(A). A 208 Kan. hearing was Regulation 28, meeting 1979. At held on June Second, had the burden of appellant 12, 1979, the appellee appel- October denied variance. to a its entitlement proving citing following reasons lant’s imposed uniformly courts have “[T]he for its decision: customary agencies administrative (1) great was a communi- There deal of moving party rule that common-law Espa- to emissions from the ty objection International proof.” has the burden of facility. ñola Mexico P. Corp. S. C. Min. & (2) very patient The Board has been 280, P.2d 557 Com’n, N.M. years. with Duke over the judicial that in However, noted it should be has made (3) Although proceedings: quasi-judicial strides toward the woodwaste “ solving of Proof’ is a term de- ‘Burden sup- does not problem, the record (1) concepts, two different scribes petition. port the variance which under the persuasion, alter- (4) The record other shows that view never shifts traditional natives are available. other, stage of party to at 402(A) pertinent parts going the burden proceedings, evidence, read as follows: which may forward parties between [Adopted shift back forth 402. Woodwaste Burners Ambrose v. progresses.” the trial May A. After as January 1975] injure health, human probability animal (D.C.Del. F.Supp. 1220 Wheatley, 321 life, in- plant may unreasonably 1971). welfare, visibility the public terfere with recognized that long has property. word, or the reasonable use and that ambiguous “proof” as its elements proof” any “burden Regulation 401(J)(2): Control forward going burden or a of production degree to which “opacity” means the is said persuasion. and burden light transmission of emissions reduce the always has the although plaintiff that object in the and the view of an obscure shifts, never persuasion, background; that may produce he sufficient evidence 100(Z): opponent’s his failure to adduce contra- Control Quality ato deci- dictory proof either lead gas-borne parti- “smoke” means small to such a plaintiff, sion for or must lead incomplete combus- resulting cles from Secretary ruling. Willingham v. but not tion, consisting predominantly, 2,11 Health, Welf., F.Supp. and Education carbon, and combusti- soot exclusively, (D.C., S.D.Fla.1974). material; ble party Once bears the bur who is as evidence summary appellant’s has made a facie show prima den is on a located Appellant’s sawmill follows: with the ing going the burden of forward the Pueblo of San leased from tract acre the opposing party. evidence shifts pro this specific Juan. The lease contains Brock, 498 P.2d Goodman N.M. materials, including saw “waste vision: dust, disposed or otherwise shall be burned is meant such By prima showing facie * * * and unreason they of as accumulate evidence is sufficient in law to raise a as piles waste material shall not accu able fact or the fact presumption of establish Appellant em premises.” mulate on in unless rebutted. Goodman v. and Española plant at its ploys people Brock, supra. $1,125,- payroll approximately the annual N.M.S.A.1978, 74-2-8(A), lists the Section constructed, “wigwam” 000. When grant- in must be considered criteria which $100,000.00. When in excess of burner cost ing denying or variances: en standards were pollution air State may grant The board an individual vari- $30,000 spent between and appellant acted prescribed un- ance from the limitations $40,000 improve modifying burner to in this Act, any reg- der the Air Control amount and cut down efficiency board, or any permit ulation of the condi- 1960’s produced. of smoke Since found, upon presenta- tion whenever it is try appellant policy it has been the compliance of adequate proof, tion that of the utilize, possible, as much as act, any regulation of that part by plant. Cur produced waste material board, will any permit of the or condition utilizing approximately rently appellant arbitrary result and unreasonable In do order to 97% of the waste materials. taking impose will an un- property into con several appellant entered upon any due lawful economic deliver all obligating tracts itself to business, occupation activity, that sawdust, sawdust, chips wood green of the variance not re- plant. Appellant’s produced bark injurious in a to health or sult condition prob cost studied the engineer staff safety. of wood waste lems involved in landfill 74-2-2(B), a short the conclusion it was N.M.S.A.1978: came to con long serious term emission, term expedient pollution” B. “air means the con indefinite and sequences because of the nature, as except such emission occurs difficulty of fire and the possibility tinuous atmosphere into the outdoor appel extinguishing a fire. quantities such Since more air in such contaminants cubic burning about 75 presently lant with reasonable and duration yards of the mill without breakdown in tioning of waste it would take be day also tween 10 and 12 truck it to a It was his systems. loads to haul anyone which entails should limited landfill the cost of the trucks opinion that incineration plus pollution and drivers He produced breakdowns. periods equipment Appellant the trucks. asked the Man Improvement Divi- the Environmental said ager if it could use city landfill appellant its ef- supported sion had the waste disposal of that was not inciner full of all forts towards utilization told, Mr. ated and on the advice of waste. Ray Improve Baca of the Environmental was asked cross-examination he if he Division, ment it could not. Mr. Baca had investigated to determine how many had should Manager they written slabs men it would take to remove the a refuse such because of the volume “Well, incinerator. answer was: His “may the waste because it cause I again, specific don’t have the information. of a major problem.” capacity fire The Again, I believe that burden would be on 10,000 6,000 is sanitary landfill between to it company why show wouldn’t be cubic of debris At 75 cubic yards acre. any When if he had feasible.” asked idea yards of wood waste the total per day much it in terms of equip- how would cost 18,000 be about yards per year would cubic hours, replied: “No, or man he ment I 2yh into which translates between and 3 doesn’t that it would appear don’t —it take per year acres of land of it. dispose many people go through too that materi- Appellant’s officials testified that even disputed He if he al was asked though they were the wood accumulating there was no appellant’s evidence that room burning ap waste in the incinerator and operation to conduct landfill on the 60 proximately once or not twice a week it was site, acre mill he “I have not inves- replied: possible opacity. to remain within the 20% particular that in full tigated aspect as far only The alternatives to build several were Perhaps, as the facilities available. there capacities or to varying incinerators nearby are facilities available that could be mill for close the several months out of disputed He was he used.” asked if also every year completely, or to close it all of that their lease appellant’s evidence entail a which would considerable financial provi- Pueblo of San Juan contained sacrifice. operation, prohibited sion that a landfill his principal The witness for the Board was “Well, was: that that can be answer I know Duran, Manager Mr. for Program David J. renegotiated or at least that would be the Enforcement Section of the Air was He then approached that basis.” of the Environmental Im- Control Section “You whether or not it asked: don’t know provement Division. He testified that on You have to' the could? not talked San 18, 1979, appellant’s visit to mill on June of Indian Juan Pueblo or the Bureau Af- percent about 80 to of the material answer, “No, I agent about it?” His fairs were which he felt the incinerator slabs not.” have utilized, and could be if the slabs 74-2-8, supra, provides that of remaining taken out the refuse would be adequate proof applicant if an shown feasi- quantity such a small that it would be taking prop “arbitrary unreasonable ble to landfill it. When asked where this burden,” the only or “undue economic erty” landfilled, said, pos- he could could be “this such a re permitted refusing reason within plant be done boundaries sibly quest granting would be that taken to the landfill.” possibly Española injuri would in a condition “result opinion his that could be taken slabs safety.” It our ous to health or operations out after the mill had ceased for [human] appellant prima made a facie opinion these slabs day. largest part The burden. The being showing cut of undue economic would have to be cut and after appel that of controverting be bundled and sold for fire- evidence they only could Mr. Du- func- wood. All of this assumed a normal lant’s on was that question this mixing. pol- air with little We woodwaste quoted length ran. have at from his continuing or three lution is one of two testimony to show that it consisted almost by our complained problems “If the most often entirely conjecture. surmise it is one opinion Chapter factual insuffi- Officials foundation members men- conjecture.” than most often nothing problems cient it is more specific (Iowa Chapter.” 223 N.W.2d 186 Hegtvedt Prybil, joining tioned as a reason for testimony 1974). seen, did Consequently, opinions lay As these were can be showing of un- nothing to appellant’s rebut kind. support without authoritative due economic burden. must rule is ‘that witnesses general “The facts, opinions, and not to testify to require- second brings us then to be deter- that whenever the ment, of the variance experi- is the result of the mined common injurious not result health in a condition education, ordinary men ence of all safety. appellant’s engineer testi- facts, the showing particular inferred from fied that he knew of no studies to be injurious jury, smoke human inference is to be drawn ” Valley health. The record shows that there were Burch v. by the witness.’ written the Board’s complaints Lines, Inc., received P.2d 78 Cal. Motor Española “creating office: tremendous App.2d 834 my amount smoke which threatens requirement of this second The effect health”; (2) “I feel this is unnec- pollution 74-2-8, impose duty supra, is to § essary. wood could be sold to the Scrap applicant for a negative on the proving a people particle area poor in this also board the recognized The courts have variance. (3) be instead polluting”; could made of and ruled accord- difficulty of such a task (4) Valley”; “too much in the pollution ingly. smoke, hurting “Too much it’s the air we all plena- not required is make party “[A] breath”; (5) “smoking hazards to my of a averment. ry negative proof health”; smoke”; much (6) “Too and that he evidence enough introduces such Baca, Ray “Too much Mr. the smoke.” as, testimony, the absence of counter in supervisor and environmentalist for the Es- ground pre- will reasonable afford office, testified that he had received pañola true; allegation when suming the complaints but had not written them other will be probandi the onus this is done Olby, down. Mrs. Jeanne C. Chairman v. his adversary.” thrown on Shumak Mexico Española Chapter Citi- Shumak, Ill.App.3d 30 332 N.E.2d Water, zens for Air and wrote to the Clean 188 Board, in part, as follows: “the emissions the existence “Evidence renders Duke City’s from woodwaste burners have sufficient probable be negative living caused the in the people vicinity contrary. proof in the absence conditions, poor suffer visibility inconven- * * * Evidence, ‘Full 178. on § Jones hung ience cannot be on outside (laundry however, when proof, conclusive ash) lines as it covered with wood becomes nega- proving party has the burden Browman, Ms. Jean Act- discomfort.” tive, vague but even required, is not Chapter the Los Alamos ing Chairman of proof, or such renders existence New Mexico Citizens for Clean is in probable, some cases negative part, Water in as fol- wrote change sufficient the burden air inception [1969], pollu- lows: “From our Co., Chicago Rys. party."' In re other in Rio tion woodwaste burners (7th 1949). F.2d Cir. Valley problem Grande has of con- negative of a “Where tinuing to the members of the Los concern party, on one but normally fact rests pollution Alamos often Chapter. knowledge or party peculiar other morning when it especially apparent matter, as to such of the evidence layers in in or bands control hangs the air thick produce rests the látter to night in the still the burden on night long after emissions aged previous study of 1200 children evidence, failing, negative such report- from 52 areas years sampled to have 0-14 presumed be been estab- respiratory less had Corporation highlanders lished.” Allstate Finance ed that this basis Zimmerman, (5th 1964). than lowlanders and 330 F.2d Cir. disease domestic it was concluded that of 20 cent” “opacity words * * factor. important smoke was not an as used in and the word who attended In this 112 children study, 74-2-2, supra, “smoke” as used in in and § who differed but village the same school nothing themselves indicate as wheth smoke exposure to domestic wood their “injurious as to be polluted er the air is so thirty each week over a were examined Smoke, given safety.” to health or period. week situation, of elements composed density opacity may which at a given “injurious safety”, to health or but some once a classes were examined [F]our thing percentage opacity more than the cough, cough complaint for loose week * * * in Portland must be shown. As was stated There were discharge. nasal Ruckelshaus, Association v. Cement from sur 1) 87 children groups: two (D.C.Cir. 1973): “It bemay

F.2d 375 exposed who were each rounding villages fires; important test is an en from domestic night to wood smoke However, forcement tool it is one *. Lufa 2) adjacent 25 children from thing testing to use a method of to observe parents whose Administrative Station standard; possible violations of a it is an and who lived were servants other to constitute that as the stan method permanent materials houses which dard itself.” There is also the pollution (except ciga free from internal testimony smoke). whether or of the smoke concentra rette Smoke given weight. evening reader should be much highest tions were mg/m to 11.2 they ranged when from 0.8 test conducted for the National Cen- [A] range pm Between 8 and (U.S. Dept. ter for Air Pollution Control evening mg/m3 to 7.3 but late 0.8 H.E.W.), inspec- where six trained smoke samples sleeping drawn from the areas training plume white tors evaluated a mg/m3. The mean usually under opacity. known to have 0% All six in- sleeping concentration in area over the plume at more than spectors rated 0% pm ranged to 4 am period the entire it and 3 evaluated at more than opacity mg/m3. from 0.57 to 1.98 These results opaci- known to be at plume 20%. A 20% general agreement are in with those higher rated than 20% 5 of the ty was (22) who, using Blackburn a Cleary and lower) (one rated it and 2 of inspectors high in different method elsewhere almost them rated at 40%. lands, a mean smoke concentration found injurious wood smoke is As to whether 3. The mean mg/m of 0.67 concentration health, human at least one seems to study important gaseous com aldehydes, indicate not. ponent ppm. of wood smoke was 1.08 Papua lung In New Guinea chronic dis- Based on measurements be the smoke ease is common in both sexes from middle am, mean 24 hour pm tween ** age pneumonia onwards *. Acute 0.8 exposure probably from 0.3 to leading has a incidence and is a high mg/m3. hospital hospital cause of admissions and pic- in children. This deaths adults and highlands pro-

ture, study together with British evidence of a school exposure evidence that expe- connection between childhood vides further smoke, prominent wood which is the most subsequent respiratory rience and disease difference, associat- lung adult chronic environmental is not theory led to the repeated respiratory with disease. An- disease be caused ed derson, Abnormalities Respiratory chest infections. H. R. severe childhood The order entered was not in accord- A. Papua Children —Interna- Guinea ance law. 1978, 7: Epidemiology tional Journal of 63-72. time for a variance period If the order of expired, has not is desired with instruc- This matter is remanded be- be reversed vacated Board should pro- tions to the to conduct further Board in accordance rendered cause it ceedings to whether determine five was void for The order with law. smoke, being from in the volume emitted reasons: appellant’s “injurious burner is wigwam authority without (1) The Board was If it is not to safety.” health determined hearing. public a hold injurious, grant Board ordered to the variance. 74-2-8(D), reads: N.M.S.A.1978 a shall do person seeking Any

IT IS SO ORDERED. for variance with by filing petition so promptly shall director the director. The LOPEZ, J., concurs. and make recom- investigate disposi- as to mendation to the board SUTIN, J., dissents. receiving the recom- Upon tion thereof. director, mendation of the board SUTIN, (dissenting). Judge shall, if the favors a var- recommendation I dissent. iance, hearing prior to the hold the Board be re- order of should If variance. the board granting not ren- versed and vacated because it was variance, opposed dered accordance law. upon be held then shall and in such petitioner, Introduction. upon shall hearing the burden 1979, 8, filed its February petitioner. AQCR 402(A) petition for variance petition, filed its After it to exceed 20% order allow investigation. On March director made an in- Española emissions from the Cuba and 1979, 22, the director recommended period cinerators. The of time desired grant- did not favor Board that the division Feb- year. period expired time Española variance for the requested ing 8, months have ruary Presently 1980. nine facility. expiration passed beyond the date. recommendation Despite the unfavorable 28, 1979 was held June public hearing director, initially, at the Board 12, October and an order was entered April grant- favored meeting held for A variance the Cuba facili- granted was and scheduled City’s petition Duke ing not ty, Española. appeal, but for 7, June hearing Española on for of granted stay was enforcement City hearing June 1979, until postponed but City pending appeal. Duke 402 28, oppose did not then 1979. The Board 21 in which it have had some months may City Only Duke could the variance. 402(A) AQCR was allowed a variance from hearing so. At the hearing. did not do in its and it have exceeded 20% held, officer announced: hearing then emissions. hearing of public is a This whether appeal A arose Improvement Environmental Mexico Upon suggestion have become moot. Board. to the this matter be called attention mandatory language, 74-2-8(D), in Section panel refus- parties explanation, an hearing public to hold ordered the Board ed. a vari- favors only “if the recommendation was is written absent recommendation dissenting opinion The director’s ance.” therefore, Board, was of time The period whether the unfavorable. determination meeting. hold authority without has expired. desired 408 case, 1979, 12, At the close of the

Subsequently, on October order chairman of the Board entered an officer stated: for the requested denied the variance with the Chairman’s in- In accordance was not in Española facility. This order structions, kept open this will be record with law. accordance testimony only, to for additional written (2) does show concurrence The order not Im- Environmental presented three members the Board. thirty days after provement * * * today. [Emphasis added.] provides majority “a 74-2-3 Section board improvement the environmental incomplete. The was action, order quorum, constitutes a but 28, 1979, adjournment on June After the improve- decision the environmental accepted testimony,” Board as “written requires ment board concurrence of posi- written contra the a series letters meeting.” members The present three at a City City lengthy tion of Duke and a not show order does concurrence three Record Regard- For The Public “Statement present meeting members at the ing Variance Petitions Of Duke Lum- appears to be the order entered. This report thereto. This ber” and a attached a jurisdictional question. If less than three testimony. not written concurred, members the order of the Board mean “public hearing” The words com- Kinscherff, was invalid. 89 Petition distinguished public hearing as pleted 669, (Ct.App.1976). N.M. P.2d The Board was adjourned hearing. an having concurrence been shown order authority without to enter an record, the order entered was not in accord- public hearing and Court incompleted with law. ance order. In re will refuse enforce the (3) The Board did not consider essential Atchinson, T. Ry. & F. Co.’s Protest S. in its denial of the variance. factors Rates, (1940); 44 N.M. 107 P.2d 2-8(B) reads: Section 74— v. Mountain States Tel. & Tel. Co. State pur- granted B. No variance shall be Com’n, Corp. 337 P.2d 943 N.M. this section until the board has suant to Both cases were followed North ap- the relative considered interest State, Aster, Etc., Chicago, Ass’n v. likely to plicant, property other owners of (1970), 251, 266 N.E.2d 742 Ill.App.2d discharges affected and the Public Mayfield Company Gas Ser- general public. [Emphasis added.] Commission, (Ky.1953). vice 259 S.W.2d There provisions mandatory. These are not held in “public hearing” was indication in the order that Board accordance law. the three considered factors mentioned. findings (5)The board to make failed meaning vague can be given What to these deny essential to the variance. concepts guess and uncertain is a matter of in ac- speculation. order was not 74~2-8(A) reads: cordance with law. an individual may grant The board A. incomplete hearing An does not meet prescribed limitations from the * hearing. statutory requirements of a found, upon presen- it is whenever compliance adequate proof, that hearing officer tation announced: * * * * will result act part of that any with granted The Board the variance taking arbitrary and unreasonable an requests April meeting at their and also undue eco- impose or will property period record be held for a open that the business lawful upon any burden nomic today’s hearing of time after to allow * * * of the vari- to send in those who could not attend * * * injuri- condition in a will result ance statements record. add- [Emphasis safety. to health ous decide at the end how of this * * *, ed.] long open record will remain require Here, a public hearing. The Board following made the “the board findings: allow persons shall all interested reasonable (1) There great was a deal of communi- data, opportunity argu- to submit views or objection ty to emissions from the Espa- ments or in orally writing and to examine ñola facility. hearing.” witnesses testifying at the Sec- (2) The Board has very patient been proof tion 74-2-6. Burden of is not re- with Duke City years. over the quired public hearing. at this We de- can (3) Although City Duke has made duce that since no filed and no strides toward solving the woodwaste issue has been presented, person appear- problem, the hearing record does not sup- ing has any carry burden to before the port the petition. Board. (4) The record shows that other alter- Hearing” “Public is not defined in the natives are available. party Act when a seeks a variance. “The The Board failed any to make essential ‘public hearing’ consistently term findings. The order entered was not in require held to that the include the accordance with law. right appear give to evidence and also It must be noted grant that a of an right to hear and examine witnesses individual variance from the limitations presented by opposing whose testimony prescribed rests within the discretion of the parties.” People ex rel. Endicott v. Huddle Board. powerful This is a weapon placed in ston, (Ct. Ill.App.3d N.E.2d 662 its hands. Even Duke though City estab- App.1975). lished all of the factors essential procure case, In the instant filed a City law, variance as a matter of the Board petition to secure a variance. At the hear- grant not mandated to the variance. ing, the division attorney for the Environ- do upon so compliance with the Improvement (EID) mental Division an- statutes. Can saywe the Board abused its representing nounced that he would “be discretion in denying Duke aCity variance? Environmental Division at this hearing. Did the beyond Board act the bounds of hearing proceeded City reason? EID opposing parties. Testimony We are committed to the rule that courts presented parties both the same man- are power vested with authority set ner any civil case tried the district aside an body order of an administrative if court. unreasonable, unlawful, it is arbitrary, ca- EID claims that Duke made a “star- pricious, or not supported by evidence. tling statement” that the burden shifted to Ferguson-Steere Motor Corp. Co. State EID. It said: Com’n, 63 N.M. 314 P.2d 894 provide The statute does not for shift- Regardless any discretion exercised fact, ing of the In proof. there if its order is not in accordance requirement partici- is no that EID even law, is unlawful and can be set pate hearing. [Emphasis aside. added.] agree I that “The authority of the Board course, required par- EID was not Of should be construed as a narrow ex- ticipate hearing. EID could have ception to the Board’s duty prevent then, Why, absented itself and defaulted. abate air pollution, and should not light- and seek strongly did EID defend ly exercised,” but it must be exercised in placed City? on Duke destroy the accordance with law. Why complain did EID that Duke B. The burden of did shift to EID. EID’s testimony failed to cite re- 74-2-8(D), provides garding point? N.M.S.A.1978 If not “burden of hearings that “in such the burden proof” “going forward with the evi- [variance] dence,” of proof upon petitioner.” upon shall be Pro- name will EID place what regulations adoption presentation attempt cedures used in the of evidence? Its fledged objection transform a full and admitted without public hearing into alone, by a show acted City expressed Under the cir- legal evidence. treated as the zeal with which sought protect EID shown, is with- this contention cumstances the investigation and of its recommendation out merit. director. The impressed Board was not Improvement Act The Environmental with the lengthy findings of the director Act are defi- Control because it did not follow them in order. its many and create many respects cient impressed Neither was it with witnesses nor the Board problems because neither who testified EID. The Board felt that by be bound agree Division would it had been no patient with Duke Act,” 12-8- Procedures §§ “Administrative more would granted. favors N.M.S.A.1978, As stated on sev- seq. et When Duke burden proof, met its in- occasions, must have agencies eral state evidence, went its EID forward with preserved adoption of and fluenced forward, going figuratively, pertaining ap- legislative enactment “shifting” be described as a 12-8-23 of the Act. Section plicability means more nothing burden. than part: pertinent reads in presenting deviation of the burden of evi- provisions the Administrative dence progress in the the hearing. agencies made apply Act Procedures True, provide the statute did law, by subject coverage to its “shifting” proof; the burden of neither do permitted by if regulation rule or agency Rules Civil Procedure. statute law. public agency, creates a To date adopted This Act included, not, cannot, con- does agency subject been to its state has lawyers trol opposing the conduct of decade, it been a provisions. For over a has presentation of evidence. To that a suggest judicial process. Until dead letter provide going íorward statute should Act legislature applicable makes the with the evidence shifts the burden of agencies of state agency, conduct every is naivete. time, be, from time to continue went evi- When EID forward its corporations persons, affront firms validity Duke- disprove dence to caprice of those to the whim and subjected variance, the did City’s desire for a who it. administer proceeded, “shift” If EID had not to EID. have been would estab- City’s undisputed lished uncontradicted and

facts.

EID, zeal to defeat Duke continued City, claims that letters mailed in at the after relevant, adjourned, material

Case Details

Case Name: Duke City Lumber Co. v. New Mexico Environmental Improvement Board

Court Name: New Mexico Court of Appeals

Date Published: Nov 6, 1980

Citation: 622 P.2d 709

Docket Number: 4372

Court Abbreviation: N.M. Ct. App.