Link Summers, Carol Richman, Michael Freebourn, and Sheila Shepherd, Plaintiffs-Appellants, v. New Mexico Water Quality Control Commission, Defendant-Appellee, Sara Edelman, Real-Party-in-Interest-Appellee.
No. 29,753.
Court of Appeals of New Mexico.
Aug. 17, 2011.
2011-NMCA-097 | 265 P.3d 745
In the Matter of the Appeal of FINAL ORDER IN the ALTA VISTA SUBDIVISION DP # 1498 WQCC 07-11(A).
stop to investigate a possible DUI. Furthermore, we have held that administration of field sobriety tests is a reasonable part of an investigation where the officer has reasonable suspicion that the person was driving under the influence of alcohol or drugs. See, e.g., State v. Williamson, 2000-NMCA-068, ¶¶ 8-9, 129 N.M. 387, 9 P.3d 70. Accordingly, we reject Child‘s argument that Article II, Section 10 requires suppression of the results of the field sobriety tests.
CONCLUSION
{35} We hold that Child‘s responses during the field sobriety tests, results of the blood test, and implied consent to the blood test are not statements that are subject to suppression under Section 32A-2-14(D). As a result, we reverse the district court‘s order of suppression and dismissal of Count I of the petition based on insufficient evidence of DUI. We remand to the district court for further proceedings consistent with this Opinion.
{36} IT IS SO ORDERED.
WE CONCUR: JONATHAN B. SUTIN and CYNTHIA A. FRY, Judges.
Gary K. King, Attorney General, Zachary Shandler, Assistant Attorney General, Santa Fe, NM, for Appellee.
OPINION
VANZI, Judge.
{1} This case requires us to consider the discharge permitting scheme of the Water Quality Act (WQA),
BACKGROUND
{2} On August 16, 2004, Edelman filed an application for a septic waste discharge permit pursuant to the WQA, Sections 74-6-1 to -17, and the New Mexico Water Quality Ground and Surface Water Protection regulations,
{3} Between August 2004 and September 2007, the New Mexico Environment Department (NMED), Ground Water Bureau (Bureau), and a hearing officer appointed by the NMED, reviewed Edelman‘s application and the proposed discharge site. Representatives from the Bureau visited and inspected the site, ran tests, and created models of the expected site lithology, and the hearing officer held hearings and accepted comments from the public. During the 2005-2006 time period, the Bureau twice requested that Edelman supplement her application with additional information. In her initial application, Edelman had only provided information about the lithological description of the Concha Torres well, which was located 1,100 feet from the proposed discharge site. The Bureau‘s first letter, in September 2005, asked Edelman to provide information about other wells that were located closer to the site than the Concha Torres well and requested “[s]pecific information on the underlying geology at the site, including all well logs from adjacent properties.” In response to the Bureau‘s letter, Edelman supplemented her application with information from a well that we refer to as the Edelman well, which is on an adjacent property that she owns, and which she claimed was drilled in 2005. After the Bureau received comments from neighbors that no well had been drilled on the adjacent property in 2005, it conducted further inquiry into the matter. In a letter dated July 25, 2006, the Bureau advised Edelman of the discrepancy and asked for “a well log showing well construction and lithological information” for that supply well. Edelman then admitted to the Bureau that the Edelman well was actually drilled without a permit in 1996 and that Edelman had not applied for a permit for that well until 2005. The consultant that Edelman hired to assist her with her application told the Bureau that he had requested information about the Edelman well from the driller and that he had asked the driller to create a well log from memory so that Edelman could respond to the Bureau‘s inquiry. Edelman submitted the Edelman well log. Several months later, the Bureau discovered that the log had been fabricated; and the information in it could not be verified.
{4} The hearing officer reviewed the application and other materials, considered public comments, and issued a 53-page report to the NMED Secretary. The hearing officer summarized the evidence, made detailed findings of fact, and ultimately recommended granting the permit application with certain conditions, including the installation of an advanced treatment unit. In addressing the fabricated well log, the hearing officer stated that “[t]he material misrepresentation made here was to the State Engineer‘s Office” and that “[a]lthough the submission [of the log] to the Bureau might have ultimately made a difference in its determination on the provability of the [a]pplication, it did not.” Nevertheless, the report “encourage[d] the Secretary to carefully review the related documents in the file, and make an express finding on this subject as part of his final order.”
E. The constituent agency shall deny any application for a permit or deny the certification of a federal water quality permit if:
. . . .
(4) the applicant has, within the ten years immediately preceding the date of submission of the permit application:
(a) knowingly misrepresented a material fact in an application for a permit[.]
{6} Edelman appealed the Secretary‘s final order denying the discharge permit to the Commission, arguing that she had not knowingly misrepresented any material facts in her application. Shortly thereafter, Link Summers, Carol Richman, Michael Freebourn, and Sheila Shepherd (collectively, Appellants) successfully intervened in the appeal to the Commission, expressing their support for the Secretary‘s decision.
{7} The Commission reviewed the record, heard closing arguments, and ultimately entered a final order in July 2009. It sustained the Secretary‘s adoption of the hearing officer‘s findings with regard to the regulatory analysis and conclusions contained in the report. In addition, the Commission adopted the hearing officer‘s findings in their entirety, thereby explicitly adopting the hearing officer‘s finding that Edelman had made a material misrepresentation to the State Engineer‘s office. The Commission nevertheless concluded that the record did not demonstrate by substantial evidence that Edelman knowingly misrepresented a material fact in her application “in violation of existing regulatory requirements.” Deciding that the Secretary mistakenly relied on the mandatory denial language in
M. A permit may be terminated or modified by the constituent agency that issued the permit prior to its date of expiration for any of the following causes:
. . . .
(2) obtaining the permit by misrepresentation or failure to disclose fully all relevant facts[.]
{8} Appellants timely appealed to this Court the order of the Commission approving Edelman‘s discharge permit application.
DISCUSSION
{9} On appeal, Appellants argue that (1) the Commission erred in rejecting the Secretary‘s finding that Edelman misrepresented a material fact and that the Commission misapplied the law, (2) there is not substantial evidence that Edelman met her burden under the regulations to demonstrate that public health and groundwater quality will be protected, and (3) procedural errors by the hearing officer mandate reversal. Because we agree with Appellants on the first issue and reverse the Commission‘s order granting the permit, we do not reach Appellants’ second and third arguments.
Standard of Review
{10} On appeal, we will only set aside the Commission‘s order if it is “(1) arbitrary, capricious or an abuse of discretion; (2) not supported by substantial evidence in the record; or (3) otherwise not in accordance with law.”
Edelman Knowingly Misrepresented a Material Fact in Her Permit Application
{11} Appellants argue that the Commission erred when it determined that Edelman did not knowingly misrepresent a material fact in her application for a discharge permit. At the outset, we note that the Commission appears to have confused the factual and legal issues before it in this case. On one hand, the Commission adopted the hearing officer‘s findings in their entirety, including that Edelman made a material misrepresentation to the State Engineer‘s office. And it concluded that substantial evidence supported a finding that Edelman “failed to fully disclose all relevant facts in obtaining the permit.” On the other hand, however, the Commission determined that the record did not “demonstrate support by substantial evidence . . . the Secretary‘s decision to deny the permit on grounds of [a] knowing[] misrepresentation of material submitted in this matter in violation of existing regulatory requirements.” Finally, on appeal, the Commission contends that if we conclude that the Secretary properly construed the statutory period, it will concede that Edelman knowingly misrepresented a material fact in her application materials and will not defend her actions in this matter. Edelman has not filed a brief in this Court. Given the seemingly contradictory determinations concerning whether there was a material misrepresentation and because we are not bound by the Commission‘s concession on appeal in that regard, we conduct our own analysis of the issue in order to provide clarity. See State v. Caldwell, 2008-NMCA-049, ¶ 18, 143 N.M. 792, 182 P.3d 775 (stating that we are not bound by a party‘s concession on an issue on appeal).
{12} We review the Commission‘s finding that Edelman did not knowingly misrepresent a material fact in her permit application for an abuse of discretion. The first part of the issue, whether there was a knowing misrepresentation, is a question of fact that we review for substantial evidence. See Durham v. Sw. Developers Joint Venture, 2000-NMCA-010, ¶ 39, 128 N.M. 648, 996 P.2d 911 (stating that issues involving intent or knowledge are generally questions of fact). The second inquiry, whether that knowing misrepresentation was material, is a mixed question of law and fact. See State v. Benavidez, 1999-NMCA-053, ¶ 16, 127 N.M. 189, 979 P.2d 234 (adopting a standard that materiality of a false statement is generally a mixed question of law and fact), vacated in part on other grounds, 1999-NMSC-041, 128 N.M. 261, 992 P.2d 274.
{13} We begin with whether Edelman made a knowing misrepresentation in her application. The record establishes that when Edelman initially filed her application with NMED, she provided information relating only to the Concha Torres well in order to satisfy the regulatory requirement that an applicant provide the “[d]epth to and lithological description of rock at base of alluvium below the discharge site if such information is available[.]”
{14} The second question we address is whether Edelman‘s knowing misrepresentation about the site lithology was a “material fact.” See § 74-6-5(E)(4)(a). “A fact is material if such fact may affect the outcome of the case.” Lopez v. Kline, 1998-NMCA-016, ¶ 18, 124 N.M. 539, 953 P.2d 304. Because the regulations require an applicant to provide the lithological description of the proposed site if that information is available, it is clear that such information could affect the outcome of any particular permitting decision. Thus, the lithological information was material to the Commission‘s decision. See
Edelman‘s Misrepresentation During the Application Process Required Denial of the Permit
{15} Because there was unambiguous and uncontroverted evidence that Edelman knowingly misrepresented a material fact in her application for a discharge permit, and because the Commission so concedes this point on appeal, we next determine whether the Commission abused its discretion in granting the permit. Appellants contend that the Commission was required to deny the permit application pursuant to
{16} First, we decide when Edelman‘s misrepresentation about the Edelman well occurred. We then ask whether this date “preceded” the “date of the submission” of the application, such that the permit should have been denied pursuant to
{17} Turning to the first question, we note that there is no separate definition or clarification in the statute of when a misrepresentation occurs. We turn, therefore, to the plain meaning of the words. Black‘s Law Dictionary defines a misrepresentation as “[t]he act of making a false or misleading assertion about something.” Black‘s Law Dictionary 1091 (9th ed.2009). It encompasses an element of communication about something to some audience. See Eckhardt v. Charter Hosp. of Albuquerque, Inc., 1998-NMCA-017, ¶ 55, 124 N.M. 549, 953 P.2d 722 (explaining that a misrepresentation is a statement that is communicated). Because a misrepresentation does not occur until it has been communicated to another person, we conclude that under the WQA, a misrepresentation occurs when materials containing a misrepresentation are conveyed to the Bureau. Consequently, in this case, Edelman‘s misrepresentation occurred on August 19, 2004, when she conveyed information about the Concha Torres well and failed to include information about the yet more proximate Edelman well to the Bureau in her initial application. The Commission does not dispute that this is the relevant date.
{18} With regard to the second question, however, the Commission argues that under a plain meaning interpretation of the statute, Edelman‘s misrepresentation does not precede the “date of submission of [her] permit application.” Under the Commission‘s theory, Edelman‘s application was originally filed on August 19, 2004, and it was therefore “submitted” on that date. Thus, according to the Commission, the statutory period ran from August 18, 1994, to August 18, 2004. Because Edelman‘s misrepresentation occurred simultaneously with the submission of the application, and not “within the ten years immediately preceding the date of submission of the permit application,” the Commission contends that it did not misconstrue the requirement for denial of the permit under
{19} We observe that the plain meaning interpretation of
{20} Accordingly, we look beyond the plain language to determine legislative intent. We begin by considering the meaning of “submit.” Black‘s Law Dictionary defines “submit” as “[t]o end the presentation of further evidence in (a case) and tender a legal position for decision.” Black‘s Law Dictionary 1562 (9th ed.2009). Although this definition is ordinarily used when submitting a case to the fact finder at the close of trial, we conclude that its use is appropriate in this context as well. When we apply this definition to the statute, the date of submission of an application and discharge plan to NMED occurs once the agency has received all of the information that it needs to consider the application, which necessarily includes all of the information that an applicant must include in their discharge plan pursuant to
{21} Here, in July 2006, the Bureau requested additional information from Edelman in order to fully evaluate her permit discharge application. Edelman provided the additional information on July 28, 2006, and as a result, that is the date we determine her application was actually submitted. Edelman‘s material misrepresentation of fact to the Bureau therefore occurred in the relevant period of time “immediately preceding the date of submission of the permit application.”
{22} The facts of this case, however, are not the sole basis for our decision, and we take the opportunity to provide guidance in other factual situations that require the denial of an application. As we have noted, we must take care to avoid adoption of a construction of a statute that would render its application absurd or unreasonable or lead to injustice or contradiction. State v. Nick R., 2009-NMSC-050, ¶ 11, 147 N.M. 182, 218 P.3d 868. The Legislature‘s obvious concern for safeguarding our groundwater from pollution and contamination is made clear by the fact that making a false representation of fact is a fourth degree felony. See
{23} In conclusion, we believe that to interpret the statute as the Commission requests would create an absurd result as an applicant who knowingly misrepresents a material fact in a current application for a discharge permit could effectively escape any sanction during the permitting process. At most, the applicant would be subject to the possibility of termination or modification of their permit at the Secretary‘s discretion after the permit had already been issued, thereby eliminating any incentive to fully and honestly disclose all material facts on the
{24} In this case, Edelman knowingly misrepresented a material fact in her application for a discharge permit before the application was submitted to the agency for review. As a result, the Commission was required to deny her permit application under
CONCLUSION
{25} For the reasons set forth above, we set aside the Commission‘s order because it is not in accordance with law. Pursuant to
{26} IT IS SO ORDERED.
WE CONCUR: MICHAEL D. BUSTAMANTE and RODERICK T. KENNEDY, Judges.