This memorandum opinion was not selected for pub lication in the New Mexico Appellate Reports. Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. Please also note that this electronic memorandum opinion may contain computer-generated errors or other deviations fr om the official paper version filed by the Court of Appeals and does not include the filing date. IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO 1 EASTERN NAVAJO DINÉ AGAINST 2 URANIUM MINING, its individual 3 members, LARRY J. KING and 4 CHRISTINE SMITH, 5 Plaintiffs-Appellants, 6

v. No. 32,447 7 DAVID MARTIN, SECRETARY OF 8 THE ENVIRONMENT DEPARTMENT, 9 and the NEW MEXICO ENVIRONMENT 10 DEPARTMENT, 11 Defendants-Appellees, 12 and 13 HYDRO RESOURCES, INC., 14 Defendant-Intervenor-Appellee. 15 New Mexico Environmental Law Center 16 Eric Jantz 17 Douglas Meiklejohn 18 R. Bruce Frederick 19 Santa Fe, NM 20 for Appellants 21 Gary K. King, Attorney General 22 Ryan Flynn, General Counsel 232 Charls de Saillan, Assistant General Counsel 1 Santa Fe, NM 2 for Appellees 3 MEMORANDUM OPINION 4 FRY, Judge. 5 Plaintiffs appeal from the district cour t’s order dismissing their complaint for 6 declaratory judgment and injunctive relief without prejudice. [RP 657] We proposed 7 to affirm in a notice of proposed summary disposition, and Plaintiffs filed a 8 memorandum in opposition. The New Mexi co Environment Department (NMED) 9 filed a memorandum in support. After reviewing the memoranda submitted by 10 Plaintiffs and NMED, we remain of the opinion that summary affirmance is 11 warranted. Therefore, we affirm the district court’s order dismissing Plaintiffs’ 12 complaint for declaratory judgment and injunctive relief. 13 The fundamental dispute between the parties is whether Hydro Resources, Inc. 14 (HRI) possesses a valid and enforceable discharge permit whic h would allow it to 15 discharge chemicals in an underground a quifer into groundwater on certain land 16 categorized as Section 8. [MIO 2-4; DS 2] Plaintiffs contend that the 1989 discharge 17 permit, DP-558, issued by NMED’s predece ssor agency is no longer valid, and thus 18 NMED is acting improperly in consideri ng the renewal appli cation submitted by HRI. 19 [DS 2, 4-7; MIO 1-2; RP 60-68] Plainti ffs also claim that NMED erred in failing to 203 inform HRI that it is prohibited from enga ging in any discharging activities authorized 1 by the 1989 permit. [MIO 3; RP 60-68] 2 Plaintiffs sought declaratory and inj unctive relief against NMED and HRI [RP 3 60-68], and filed a motion for summary judgmen t. [RP 180] The district court denied 4 the motion finding that the case was not ripefor review. [RP 581-582] The district 5 court’s order states that Plaintiffs’ summary judgment motion will be deemed ripe for 6 review if any of the following “triggering events” occur: 7 1. NMED takes final action on the groundwater discharge permit filed by 8 HRI or the discharge permit renewal application for the Section 8 Site that does not 9 render this case moot; 10 2. HRI begins construction related to a groundwater injection system for its 11 proposed uranium in situ leach mining operation on the Section 8 Site; or 12 3. HRI orders any materials for the c onstruction of a groundwater injection 13 system for its proposed uranium in situ leach mining operation on the Section 8 Site. 14 [RP 582] 15 The order further provides that NMED “or HRI, as appropriate, shall 16 immediately notify the [district] [c]ourt and th e other parties if any of the events listed 17 in clauses 1 through 3 occur.” [RP 582] The district court then dismissed Plaintiffs’ 18 action without prejudice because “this matter is not ripe for review.” [RP 657] 194 As a general rule, the decision to grant or deny declaratory relief is reviewed 1 for abuse of discretion. See Allstate Ins. Co. v. Firemen’s Ins. Co. , 76 N.M. 430, 434, 2 415 P.2d 553, 555 (1966); Starko, Inc. v. Presbyterian Health Plan, Inc. , 3 2012-NMCA-053, ¶ 95, 276 P.3d 252. In our notice of proposed summary 4 disposition, we proposed to affirm the dismissal because the case fails to present an 5 “actual controversy” which is required for th e district court to “assume jurisdiction in 6 a declaratory judgment action.” New Energy Econ., Inc. v. Shoobridge , 7 2010-NMSC-049, ¶ 17, 149 N.M. 42, 243 P.3d 746 (internal quotation marks and 8 citation omitted); see NMSA 1978, § 44-6-2 (1975). We recognized that, in order to 9 have an actual controvers y “the issue involved must be ripe for judicial 10 determination.” New Energy Econ., Inc. , 2010-NMSC-049, ¶ 17 (internal quotation 11 marks and citation omitted). Furthermore, “[t]he mere possibility or even probability 12 that a person may be adversely affected in th e future by official acts fails to satisfy the 13 actual controversy requirement.” Yount v. Millington , 117 N.M. 95, 103, 869 P.2d 14 283, 291 (Ct. App. 1993) (internal quot ation marks and citation omitted). 15 In proposing to affirm, we relied upon the evidence in the record indicating that 16 NMED has yet to act on HRI’s renewal permit. [RP 111-112, 251-254] Moreover, 17 even though NMED officials rescinded the letter to HRI stating that the permit 18 renewal application must beapproved before HRI could begin mining Section 8, [DS 195 5-6] it did not appear that HRI has take n any steps to begin construction or activity 1 in Section 8. [DS 7; RP 581-582] Given that the permit renewal application had not 2 yet been approved and HRI had not taken any action to begin operations on Section 3 8, we proposed to agree with the district court that this matter is not yet ripe for review 4 and any damage to Plaintiffs’ interests are only speculative. We also proposed to 5 agree that Plaintiffs’ action will not be ri pe for review until one of the triggering 6 events outlined in the order denying su mmary judgment transpires. [RP 581-582] See 7
Yount , 117 N.M. at 103, 869 P.2d at 291. In light of our propo sed disposition, we 8 declined to consider the merits of Plai ntiffs’ declaratory judgment action and request 9 for injunctive relief. [DS 7, 10-12] 10 In their memorandum in opposition, Plaintiffs urge us to reverse the district 11 court’s dismissal because NMED’s determination that DP-558 is valid and 12 enforceable is a “final agency action” wh ich is currently affecting Plaintiffs and 13 because Plaintiffs’ rights will be jeopardi zed unless the matter is adjudicated now. 14 [MIO 5] We are unpersuaded. 15 We agree that NMED’s determinati on that the 1989 permit is valid and 16 enforceable is a final determination as to the legal status of the discharge permit. 17 [MIO 6-10] However, the renewal process is ongoing, [MIS 2] and NMED’s 18 determination that the 1989 permit is valid does not adversely impact Plaintiffs unless 196 and until HRI takes steps to be gin preparation for discharge. Therefore, we are not 1 persuaded that the mere existence of a legal question that could be answered [MIO 6] 2 requires the district court to consider thatquestion in the absen ce of evidence showing 3 that Plaintiffs will be impacted by NMED’s determination. See New Energy Econ., 4
Inc. , 2010-NMSC-049, ¶ 18 (“[E]ven if a purely legal question is presented for 5 declaratory judgment, it is not justiciable unless it is ripe.”); cf. Johnson v. Lally, 118 6 N.M. 795, 799, 887 P.2d 1262, 1266 (Ct. App. 1994) (refusing to grant declaratory 7 relief to “answer a hypothetical question of constitutional law” which would not 8 address a party’s injury (internal quotation marks and citation omitted)). 9 In urging reconsideration of our proposedsummary disposition, Plaintiffs argue 10 that NMED has not taken any steps to modify or terminate the 1989 permit and HRI 11 could theoretically begin operations under th at permit. [MIO 7-11] However, NMED 12 has not yet issued a decision on the rene wal permit nor has HRI taken any steps to 13 begin preparations for discharge operati ons under the 1989 permit. [MIS 2] The 1989 14 permit was issued over twenty years ago, and HRI may never attempt to begin 15 discharging under that permit. Cf. NMSA 1978, § 74-6-5(M) (2009) (recognizing that 16 NMED may terminate or modify a permit before it expires fo r a number of reasons 17 including a “change in any condition that re quires either a temporary or permanent 18 reduction or elimination of the permitted discharge”). 197 Moreover, even though HRI could theo retically begin discharge operations 1 pursuant to the 1989 permit, we are not convinced that Plaintiffs’ rights are at risk 2 unless and until HRI actually takes steps to begin construction and NMED takes no 3 steps to prevent HRI’s activities. [MIO 10-13] Cf. N.M. Indus. Energy Consumers 4 v. N.M. Pub. Serv. Comm’n , 111 N.M. 622, 630, 808 P.2d 592, 600 (1991) 5 (recognizing that, in considering ripeness, the Court considers “whether further 6 agency decisions may moot some of the contentions, and whether the parties will 7 suffer imminently the effects of the final order” ). In light of the fact that HRI has yet 8 to begin any construction and NMED has yet to decide whether HRI’s permit will be 9 renewed, we are not convinced that any “cloud” created by NMED’s recognition of 10 the continuing validity of the 1989 permit, is of sufficient impact to hold that the 11 district court abused its discretion in refu sing to consider Plaintiffs’ request for a 12 declaratory judgment or injunction at this juncture. [MIO 11] Cf. id. at 629-630, 808 13 P.2 at 599-600 (stating that “[t]he basic purpose of ripeness law is and always has 14 been to conserve judicial machinery fo r problems which are real and present or 15 imminent, not to squander it on abstract or hypothetical or remote problems” (internal 16 quotation marks and citation omitted)). 17 Finally, Plaintiffs argue that this case presents facts similar to those presented 18 in Mills v. State Bd. of Psychologist Examiners , 1997-NMSC-028, ¶¶ 11-12, 123 N.M. 198 421, 941 P.2d 502, where our Supreme Court held that the plaintiff’s due process 1 claims against the Board of Psychologist Ex aminers (Board) were sufficiently ripe to 2 be reviewed upon a petition for writ of certiorari. [MIO 13-15] We disagree. 3
In Mills , the Board required the plaintiff to take an oral examination before her 4 license to practice psychology would be rein stated and refused to conduct a hearing 5 on the propriety of that requirement. See id. If she passed the exam, her objection to 6 the examination requirement would become m oot, and if she failed, the reinstatement 7 of her license might be deni ed; “[i]n either case [she] would suffer the consequences 8 of taking the examination be fore any court could evaluate the Board's decision.” Id. 9 ¶ 12. Because the plaintiff would have to take the exam if the Court rejected her 10 appeal, the Court determined th at she had presented an issu e that was ripe for review. 11 Id. 12 In this case, Plaintiffs’ right to quiet use and enjoyment of their property, the 13 right to exercise their religion, and any derivative rights to ground water, [MIO 13-14] 14 are not at risk until one of the triggering events occurs. Likewise, the potential 15 damage caused by materials that might beordered and might be delivered before 16 Plaintiffs have an opportunity to return to district court, is too speculative to warrant 17 reversal of the district court’s dismissal pursuant to an abuse of discretion standard. 18 See Starko, Inc. , 2012-NMCA-053, ¶ 95. [MIO 13-15] 199 In sum, “[i]n the context of a declaratory judgment, the test for what constitutes 1 an actual controversy is whether there is a controversy between the parties having 2 adverse legal interests of sufficient imme diacy and reality to warrant issuance of 3 declaratory judgment.” Yount , 117 N.M. at 103, 869 P.2d at291 (internal quotation 4 marks and citation omitted). In this case, Pl aintiffs have failed to present an actual 5 controversy because they have failed to make a showing of “adverse legal interests of 6 sufficient immediacy and reality to warrant issuance of declaratory judgment.” Id. 7 CONCLUSION 8 For the reasons set forth above as well as those discussed in our notice of 9 proposed summary disposition, we affirm the district court’s order dismissing 10 Plaintiffs’ complaint for declaratory judgment and injunctive relief without prejudice. 11 IT IS SO ORDERED. 12 13 CYNTHIA A. FRY, Judge 14 WE CONCUR: 15

16 JONATHAN B. SUTIN, Judge 17

18 MICHAEL E. VIGIL, Judge 19