A. 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. 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; or
(3) the department of environment, the energy, minerals and natural resources department or the commission alleging a failure to perform any nondiscretionary act or duty required by the New Mexico Mining Act; provided, however, that no action pursuant to this section shall be commenced if the department of environment, the energy, minerals and natural resources department or the commission has commenced and is diligently prosecuting a civil action in a court of this state or an administrative enforcement proceeding to require compliance with that act. In an administrative or court action commenced by the department of environment, the energy, minerals and natural resources department or the commission, a person whose interest may be adversely affected and who has provided notice pursuant to Subsection B of this section prior to the initiation of the action may intervene as a matter of right.
B. No action shall be commenced pursuant to this section prior to sixty days after the plaintiff has given written notice to the department of environment, the energy, minerals and natural resources department, the commission, the attorney general and the alleged violator of the New Mexico Mining Act; provided, however, when the violation or order complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action pursuant to this section may be brought immediately after notification of the proper parties.
C. Except as otherwise provided herein, suits against the department of environment, the energy, minerals and natural resources department or the commission shall be brought in the district court of Santa Fe county. Suits only against one or more owners or operators of one or more mining operations shall be brought in the district court where one of the mining operations is located. If an action is brought against the department of environment, the energy, minerals and natural resources department or the commission and the owner or operator of a mining operation, such owner or operator may apply for a change of venue to the judicial district in which the mining operation is located. If not already a party, an owner or operator may intervene, upon a showing that the action relates primarily to a dispute regarding the single mining operation and apply for such a change of venue. The district court shall grant a change of venue upon a showing that the action relates primarily to a dispute regarding the subject single mining operation and a showing that a forum non conveniens analysis suggests that the location of the mining operation is a superior venue.
D. In an action brought pursuant to this section, the department of environment, the energy, minerals and natural resources department or the commission, if not a party, may intervene.
E. The court, in issuing a final order in an action brought pursuant to this section, may award costs of litigation, including attorney and expert witness fees, to a party whenever the court determines such award is appropriate. The court may, if a temporary injunction or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the rules of civil procedure.
History: Laws 1993, ch. 315, § 14; 1997, ch. 88, § 3.
ANNOTATIONSThe 1997 amendment, June 20, 1997, in Subsection A, substituted "duty required by" for "duty under" in the first sentence in Paragraph (3); rewrote Subsection C; and, in Subsection E, substituted "attorney" for "attorneys".
Administrative review. — A challenge to the issuance of a permit must pursue an administrative review under 69-36-15 NMSA 1978 before proceeding with a "citizen suit" under this section. Pueblo of Picuris v. N.M. Energy, Minerals & Natural Res. Dep't, 2001-NMCA-084, 131 N.M. 166, 33 P.3d 916, cert. denied, 131 N.M. 221, 34 P.3d 610 (2002).
Am. Jur. 2d, A.L.R. and C.J.S. references. — Requirement that there be continuing violation to maintain citizen suit under federal environmental protection statutes - post-Gwaltney cases, 158 A.L.R. Fed. 519.