{ "id": 1592863, "name": "ENVIRONMENTAL IMPROVEMENT DIVISION OF the NEW MEXICO HEALTH AND ENVIRONMENT DEPARTMENT, Plaintiff-Appellant, v. BLOOMFIELD IRRIGATION DISTRICT, Defendant-Appellee", "name_abbreviation": "Environmental Improvement Division v. Bloomfield Irrigation District", "decision_date": "1989-06-06", "docket_number": "No. 10453", "first_page": "691", "last_page": "696", "citations": [ { "type": "official", "cite": "108 N.M. 691" }, { "type": "parallel", "cite": "778 P.2d 438" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "104 N.M. 664", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594921 ], "weight": 3, "year": 1986, "opinion_index": 0, "case_paths": [ "/nm/104/0664-01" ] }, { "cite": "101 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586403 ], "weight": 2, "pin_cites": [ { "page": "562" }, { "page": "970" } ], "opinion_index": 0, "case_paths": [ "/nm/101/0556-01" ] }, { "cite": "89 N.M. 223", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2867377 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/89/0223-01" ] }, { "cite": "100 N.M. 370", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1588590 ], "weight": 2, "year": 1983, "opinion_index": 0, "case_paths": [ "/nm/100/0370-01" ] }, { "cite": "101 N.M. 592", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1586442 ], "weight": 2, "year": 1984, "opinion_index": 0, "case_paths": [ "/nm/101/0592-01" ] }, { "cite": "324 U.S. 697", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6156456 ], "weight": 3, "year": 1945, "pin_cites": [ { "page": "704", "parenthetical": "statutory right conferred on a private party, but affecting the public interest, cannot be waived or released if such waiver or release contravenes the statutory policy" }, { "page": "900-01", "parenthetical": "statutory right conferred on a private party, but affecting the public interest, cannot be waived or released if such waiver or release contravenes the statutory policy" }, { "parenthetical": "statutory right conferred on a private party, but affecting the public interest, cannot be waived or released if such waiver or release contravenes the statutory policy" } ], "opinion_index": 0, "case_paths": [ "/us/324/0697-01" ] }, { "cite": "199 F.Supp. 341", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 32427 ], "opinion_index": 0, "case_paths": [ "/f-supp/199/0341-01" ] }, { "cite": "87 L.Ed. 523", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1942, "opinion_index": 0 }, { "cite": "63 S.Ct. 46", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1942, "opinion_index": 0 }, { "cite": "317 U.S. 650", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 303866, 303962, 304357, 303934 ], "year": 1942, "opinion_index": 0, "case_paths": [ "/us/317/0650-03", "/us/317/0650-04", "/us/317/0650-02", "/us/317/0650-01" ] }, { "cite": "128 F.2d 155", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10695095 ], "opinion_index": 0, "case_paths": [ "/f2d/128/0155-01" ] }, { "cite": "41 F.Supp. 268", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4211992 ], "opinion_index": 0, "case_paths": [ "/f-supp/41/0268-01" ] }, { "cite": "106 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708443 ], "weight": 4, "year": 1987, "pin_cites": [ { "parenthetical": "statutory interpretations of agency charged with administration of the statute are persuasive, but reviewing court will overturn a clearly incorrect administrative interpretation" }, { "parenthetical": "statutory interpretations of agency charged with administration of the statute are persuasive, but reviewing court will overturn a clearly incorrect administrative interpretation" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0073-01" ] }, { "cite": "577 F.Supp. 408", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3630477 ], "opinion_index": 0, "case_paths": [ "/f-supp/577/0408-01" ] }, { "cite": "92 N.M. 155", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557170 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/92/0155-01" ] } ], "analysis": { "cardinality": 710, "char_count": 18153, "ocr_confidence": 0.773, "pagerank": { "raw": 8.069987929583336e-08, "percentile": 0.46674497239028223 }, "sha256": "fb927442c4870c90c2575a1e3074c9d6bbb9067745831977d35f82226ec15333", "simhash": "1:f8eb4d2df22adeba", "word_count": 2809 }, "last_updated": "2023-07-14T16:06:26.206257+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BIVINS, C.J., and MINZNER, J., concur." ], "parties": [ "ENVIRONMENTAL IMPROVEMENT DIVISION OF the NEW MEXICO HEALTH AND ENVIRONMENT DEPARTMENT, Plaintiff-Appellant, v. BLOOMFIELD IRRIGATION DISTRICT, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nALARID, Judge.\nPlaintiff, Environmental Improvement Division of the State of New Mexico Health and Environment Department (plaintiff), appeals the trial court\u2019s order granting defendant, Bloomfield Irrigation District (defendant), summary judgment on both causes of action pled in plaintiff\u2019s complaint. Plaintiff raises two issues: (1) whether the trial court erred in deciding defendant does not provide water for human consumption, see Environmental Improvement Board Regulations Governing Water Supplies (EIB/WSR 1) \u00a7 101.Y, and (2) whether the trial court erred in granting defendant\u2019s motion for summary judgment on plaintiff\u2019s second cause of action to enjoin a public nuisance under NMSA 1978, Section 30-8-1 (Repl.Pamp.1984). Alternatively, plaintiff claims the trial court should have granted summary judgment in its favor on both causes of action pled in its complaint. We will address other issues raised by this appeal as they become relevant to our discussion. We hold that defendant provides water for human consumption and reverse and remand for further proceedings.\nFACTS AND STATEMENT OF PROCEEDINGS\nBecause the facts of this case are undisputed, we assigned this case to the legal calendar. See State v. Rivera, 92 N.M. 155, 584 P.2d 202 (Ct.App.1978).\nPlaintiff derives its authority from NMSA 1978, Sections 74-1-1 to -10 (Repl. Pamp.1988) (\u201cEnvironmental Improvement Act\"). The primary purpose of this legislation is to create an agency responsible for environmental management and consumer protection in order to ensure an environment that, among other things, will confer the optimum health, safety, comfort and economic and social well-being on its inhabitants. See \u00a7 74-1-2. Pursuant to Sections 74-1-5 and -8, the Environmental Improvement Board has promulgated \u201cRegulations Governing Water Supplies\u201d (\u201cWater Supply Regulations\u201d). See EIB/WSR 1, \u00a7\u00a7 101 to 702. Plaintiff is empowered to maintain, develop and enforce these regulations and standards in the area of water supply. See EIB/WSR 1, \u00a7\u00a7 74-1-6, -7(A)(2).\nOne of the regulations at issue is EIB/WSR 1, Section 101.Y, which defines \u201cpublic water supply system\u201d as:\na system for the provision to the public of piped water for human consumption if such system has at least fifteen (15) service connections or regularly services an average of at least twenty-five (25) individuals at least sixty (60) days out of the year. A public water supply system is either a \u201ccommunity water system\u201d or a \u201cnon-community water system.\u201d\nEIB/WSR 1, Section 101.C defines \u201ccommunity water system\u201d as:\na public water supply system which serves at least fifteen (15) service connections used by year-round resident [sic] or regularly serves at least twenty-five (25) year-round residents.\nAnother regulation defines \u201csupplier of water\u201d as \u201cany person who owns or operates a public water supply system.\u201d EIB/WSR 1, \u00a7 101.DD.\nDefendant is an irrigation district organized under NMSA 1978, Sections 73-9-1 to -62 (Orig.Pamp. & Cum.Supp.1987). Its primary purpose is to provide untreated irrigation water to its members. See \u00a7 73-9-1.\nDefendant presently conveys untreated water for irrigation purposes from surface sources through a section of wooden pipe formerly used by the City of Bloomfield to provide treated water to its inhabitants. Defendant allows a number of people along this line to tap into and take untreated water from the wooden pipe only for irrigation purposes but with the knowledge that some of the people use the untreated water for human consumption. There are approximately 200 service connections (taps) to the wooden pipe. Neither party presented any evidence on how many of these connections are used for human consumption, nor how many people use the water for human consumption.\nPrior to 1985, anyone wishing to take water from the wooden pipe was required to sign an application with defendant clearly indicating the water was not intended for human consumption. In 1985, defendant was enjoined from using this application pursuant to a temporary settlement agreement entered into with plaintiff on October 28, 1985. Defendant admitted in this settlement agreement that it provided untreated water to more than fifteen service connections used by year-round residents or to more than twenty-five year-round residents. See EIB/WSR 1, \u00a7\u00a7 101.-C, 101.Y. The agreement is silent on how many of these service connections are used for human consumption or how many of these people use the water for human consumption. Defendant expressly denied it was a supplier of water for human consumption as defined in the Water Supply Regulations in this settlement agreement. The settlement agreement terminated on October 27, 1986. Defendant continues to advise those taking untreated water from the wooden pipe that it is not intended for human consumption. However, defendant knows that some of these people continue to use the water for human consumption.\nPlaintiff sued defendant, alleging defendant was subject to the Water Supply Regulations as a \u201csupplier of water,\u201d see EIB/WSR 1, \u00a7 101.DD, because it operates a \u201cpublic water system,\u201d see EIB/WSR 1, \u00a7 101.Y, and a \u201ccommunity water system,\u201d see EIB/WSR 1, \u00a7 101.C by providing water for human consumption to more than fifteen service connections used by year-round residents or to more than twenty-five year-round residents. Plaintiff sought to enjoin defendant\u2019s alleged violations of the Water Supply Regulations. In the alternative, plaintiff sought to enjoin the creation and maintenance of a public nuisance pursuant to Section 30-8-1.\nDefendant filed a motion for summary judgment supported by an affidavit from its secretary, Robert Cassady. His affidavit, in effect, stated defendant does not provide water for human consumption because it only engages in the business of providing irrigation water. See \u00a7\u00a7 73-9-1 to -62; EIB/WSR 1, \u00a7 101.Y. For this reason, defendant claimed it was not subject to the Water Supply Regulations.\nPlaintiff filed a response and counter-motion for summary judgment supported by Mr. Cassady\u2019s deposition and other summary judgment evidence. The main issue below appears to have been whether defendant provides water to the public for human consumption. See ^EIB/WSR 1, \u00a7 101.Y. The trial court granted defendant\u2019s motion for summary judgment on both causes of action pled in plaintiff\u2019s complaint, ruling that defendant \u201cis not a supplier of drinking water and cannot be held responsible for what people do with it.\u201d\nEIB/WSR 1, SECTIONS 101.Y AND 101.C\nThe first issue we need to address is the meaning of these regulations. Plaintiff\u2019s complaint, in effect, alleged defendant falls under both of these regulations because it provides water for human consumption at more than fifteen service connections or to more than twenty-five year-round residents. See EIB/WSR 1, \u00a7\u00a7 101.-C, 101.Y. On appeal, plaintiff advances a different interpretation of EIB/WSR 1, Sections 101.C and 101.Y, by arguing defendant would come within them \u201cif even one person is using the water for human consumption, and there are at least fifteen service connections or at least twenty-five individual consumers on the system.\u201d Since the definition of \u201ccommunity water system,\u201d see EIB/WSR 1, \u00a7 101.C, is included in the definition of \u201cpublic water supply system,\u201d see EIB/WSR 1, \u00a7 101.Y, we discuss both regulations.\nCourts defer to the interpretation of a regulation by the agency to which it is addressed unless such interpretation is plainly erroneous or inconsistent with the regulation. See Borrego v. United States, 577 F.Supp. 408 (D.N.M.1983). Compare New Mexico Pharmaceutical Ass\u2019n v. State, 106 N.M. 73, 738 P.2d 1318 (1987) (statutory interpretations of agency charged with administration of the statute are persuasive, but reviewing court will overturn a clearly incorrect administrative interpretation). Plaintiff\u2019s interpretation of EIB/WSR 1, Sections 101.C and 101.Y, in its briefs on appeal, is inconsistent with the regulations and plaintiff\u2019s interpretation of these regulations in its complaint. Thus, we do not defer to it. See Borrego v. United States.\nEIB/WSR 1, Section 101.Y consists of an independent clause followed by a dependent clause beginning with the word \u201cif.\u201d See W. Sabin, The Gregg Reference Manual \u00b6 130 (6th ed. 1985). The clause followed by the word \u201cif\u201d is a restrictive adjective clause which limits or restricts the meaning of the word \u201csystem\u201d in the preceding independent clause. See id., HIT 130, 1801. The word \u201csystem\u201d in the preceding independent clause is modified by the prepositional phrase \u201cfor human consumption.\u201d See id., II1801. EIB/WSR 1, Section 101.C incorporates the term \u201cpublic water system\u201d used in EIB/WSR 1, Section 101.Y.\nTherefore, in order for defendant to come within EIB/WSR 1, Section 101.Y, plaintiff must show defendant provides the public with piped water for human consumption and at least fifteen service connections are used for human consumption or an average of at least twenty-five people regularly use the water for human consumption at least sixty days out of the year. In order for defendant to come within EIB/WSR 1, Section 101.C plaintiff must show defendant provides the public with piped water for human consumption, see EIB/WSR 1, \u00a7 101.Y and at least fifteen service connections are used by year-round residents for human consumption or at least twenty-five year-round residents regularly use the water for human consumption. This is how plaintiff interpreted these regulations in its complaint.\nWHETHER DEFENDANT PROVIDES WATER FOR HUMAN CONSUMPTION\nThis issue is concerned with the first part of the definition of \u201cpublic water supply system\u201d contained in EIB/WSR 1, Section 101.Y, and concerns plaintiff\u2019s interpretation of EIB/WSR 1, Section 101.Y, that the actual use of the water by the residents controls, rather than defendant\u2019s stated intent. Defendant claims it does not provide water for human consumption because it only intends to provide water for irrigation purposes and it advises its customers not to use the water for human consumption. Plaintiff claims a supplier provides water for human consumption if people actually use the water for drinking whether or not defendant intends that result.\nWe begin with the principle that we will defer to plaintiffs interpretation of EIB/WSR 1, Section 101.Y unless such interpretation is plainly erroneous or inconsistent with the regulation. See Borrego v. United States. In determining whether defendant provides water for human consumption, plaintiff could properly consider the actual use of the water rather than defendant\u2019s stated intent. See Interstate Commerce Commission v. A. W. Stickle & Co., 41 F.Supp. 268 (E.D.Okla.1941) (in classifying a carrier under a particular state of facts as a private, common, or contract carrier within meaning of Motor Carrier Act, it is effect of what the carrier actually does, rather than its designation by the person concerned or his good faith in endeavoring to engage in the transportation business as a private carrier, which governs), aff'd, 128 F.2d 155 (10th Cir.), cert. denied, 317 U.S. 650, 63 S.Ct. 46, 87 L.Ed. 523 (1942); Securities & Exch. Comm\u2019n v. American Int\u2019l Sav. & Loan Ass\u2019n, 199 F.Supp. 341 (D.Md.1961) (in determining whether defendant is entitled to exemption from Securities Act, character of defendant\u2019s business controls rather than its name or charter powers).. Defendant\u2019s attempt to distinguish Interstate Commerce Commission is unpersuasive because, even though the facts of the case are different, the principle of the case, that what is actually done controls, is applicable. Defendant\u2019s arguments under this point exalt form over substance.\nThe fact that defendant advises its customers not to use the water for human consumption is also not persuasive. Compare Interstate Commerce Commission v. A.W. Stickle & Co. (what is actually done controls rather than the good faith of the person concerned). Moreover, there is nothing in the Environmental Improvement Act or the Water Supply Regulations indicating a legislative intent that consumers can waive the protection afforded them by this legislation and the Water Supply Regulations. Cf. Brooklyn Savings Bank v. O\u2019Neil, 324 U.S. 697, 704, 65 S.Ct. 895, 900-01, 89 L.Ed. 1296 (1945) (statutory right conferred on a private party, but affecting the public interest, cannot be waived or released if such waiver or release contravenes the statutory policy).\nDefendant\u2019s reliance on Rivas v. Board of Cosmetologists, 101 N.M. 592, 686 P.2d 934 (1984), In re Rehabilitation of Western Investors Life Insurance Co., 100 N.M. 370, 671 P.2d 31 (1983), and Public Service Co. of New Mexico v. New Mexico Environmental Improvement Board, 89 N.M. 223, 549 P.2d 638 (Ct.App.1976), for the proposition that plaintiff\u2019s interpretation of EIB/WSR 1, Section 101.Y that defendant provides water for human consumption is inconsistent with the legislative intent expressed in Section 74-1-2, is also unpersuasive. Plaintiff\u2019s interpretation is consistent with the public protection purpose of Section 74-1-2.\nDefendant also argues plaintiff is attempting to control the use of irrigation water, which is inconsistent with the Environmental Improvement Act. No such inconsistency exists because, under our interpretation of EIB/WSR 1, Sections 101.C and 101.Y, and assuming plaintiff can prove the other elements of EIB/WSR 1, Sections 101.C or 101.Y, plaintiff will not be exercising control over water used primarily for irrigation purposes: rather, plaintiff will be exercising control over water used primarily for human consumption. Under these circumstances, with respect to the water defendant provides through the wooden pipe, defendant would primarily be engaged in supplying water for human consumption rather than water for irrigation. Under these circumstances, Sections 73-9-1 to -62 would be inapplicable to the water defendant provides through the wooden pipe.\nDefendant also claims plaintiff\u2019s interpretation of EIB/WSR 1, Section 101.Y should be set aside on public policy grounds. It argues that due to the misuse of water by one or a few, it would have to quit supplying water to everyone. Our interpretation of EIB/WSR 1, Sections 101.C and 101.Y should somewhat allay this concern because, in order to fall within the Water Supply Regulations, defendant would have to be supplying water to more than \u201cone or a few people\u201d who use it for human consumption. If the number of people using the water for human consumption is enough to bring defendant within the Water Supply Regulations, then public policy would favor cutting off the water supply to everyone because we agree with plaintiff that, \u201c[f]rom a public health standpoint, it is preferable for consumers to received [sic] no piped water than, for them to suffer the risk of serious illness, or even death, from contaminated water.\u201d\nBased on the foregoing, we cannot say plaintiff\u2019s interpretation of EIB/WSR 1, Section 101.Y is plainly erroneous or inconsistent with the Environmental Improvement Act or EIB/WSR 1, Section 101.Y. See Borrego v. United States. Cf. New Mexico Pharmaceutical Ass\u2019n v. State. We hold, under the facts of this case, defendant provides water for human consumption and, therefore, meets the first part of the definition of EIB/WSR 1, Section 101.Y. Therefore, the trial court erred in deciding defendant does riot provide water for human consumption. Assuming plaintiff can prove the other elements of EIB/WSR 1, Sections 101.C or 101.Y, then defendant would be subject to the Water Supply Regulations.\nWHETHER THE TRIAL COURT PROPERLY GRANTED DEFENDANT\u2019S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF\u2019S SECOND CAUSE OF ACTION TO ENJOIN A PUBLIC NUISANCE\nSection 30-8-l(A) defines a public nuisance as \u201cknowingly creating, performing or maintaining anything affecting any number of citizens without lawful authority which is ... injurious to public health, safety, morals or welfare.\u201d A public nuisance must affect a considerable number of people or an entire community or neighborhood. See Padilla v. Lawrence, 101 N.M. 556, 562, 685 P.2d 964, 970 (Ct.App.1984).\nPlaintiff argues the trial court erred in granting defendant\u2019s motion for summary judgment on this cause of action because the trial court only decided defendant does not provide water for human consumption as defined in EIB/WSR 1, Section 101.Y, which is irrelevant to whether defendant is creating or maintaining a public nuisance. We agree. Depending on the number of people and service connections involved and the size of the community, and under our interpretation of EIB/WSR 1, Sections 101.C and 101.Y, it is conceivable defendant might not fall under the Water Supply Regulations but still be maintaining a public nuisance as defined in Section 30-8-1 and Padilla. However, since neither party presented any evidence on the number of people or the size of the community using the water for human consumption, neither party carried its burden of proof on this issue. See Koenig v. Perez, 104 N.M. 664, 726 P.2d 341 (1986). Therefore, neither party was entitled to summary judgment on this issue. See id.\nCONCLUSION\nIn summary, we hold defendant provides water for human consumption as defined in the first part of EIB/WSR 1, Section 101.Y but that plaintiff failed to establish its prima facie case on the other elements of EIB/WSR 1, Sections 101.C or 101.Y. Therefore, we reverse the grant of summary judgment in favor of defendant, and remand for trial on the merits. Plaintiff shall recover its costs on appeal.\nIT IS SO ORDERED.\nBIVINS, C.J., and MINZNER, J., concur.", "type": "majority", "author": "ALARID, Judge." } ], "attorneys": [ "Weldon L. Merritt, Tracy M. Hughes, Spec. Ass\u2019t Atty. Gen. and Ass\u2019t Gen. Counsel, Office of General Counsel, Health & Env\u2019t Dept., Santa Fe, for plaintiff-appellant.", "Dennis F. Armijo, Farmington, for defendant-appellee." ], "corrections": "", "head_matter": "778 P.2d 438\nENVIRONMENTAL IMPROVEMENT DIVISION OF the NEW MEXICO HEALTH AND ENVIRONMENT DEPARTMENT, Plaintiff-Appellant, v. BLOOMFIELD IRRIGATION DISTRICT, Defendant-Appellee.\nNo. 10453.\nCourt of Appeals of New Mexico.\nJune 6, 1989.\nCertiorari Denied July 27, 1989.\nWeldon L. Merritt, Tracy M. Hughes, Spec. Ass\u2019t Atty. Gen. and Ass\u2019t Gen. Counsel, Office of General Counsel, Health & Env\u2019t Dept., Santa Fe, for plaintiff-appellant.\nDennis F. Armijo, Farmington, for defendant-appellee." }, "file_name": "0691-01", "first_page_order": 729, "last_page_order": 734 }