1 IN THE SUPREME COURT OF THE STATE OF NEW MEXICO Opinion Number: 2010-NMSC-049 Filing Date: November 10, 2010 Docket No. 32,396 NEW ENERGY ECONOMY, INC. , Petitioner,

v. HONORABLE WILLIAM W. SHOOBRIDGE, Judge for New Mexico’s Fifth Judicial District , Respondent,
and SENATOR CARROLL H. LEAVELL, et al., Real Parties in Interest,
Consolidated with : Docket No. 32,409
NEW MEXICO ENVIRONMENTAL IMPROVEMENT BOARD, Petitioner,

v. HONORABLE WILLIAM W. SHOOBRIDGE, Fifth Judicial District Judge, Respondent,
and SENATOR CARROLL H. LEAVELL, et al.,2 Real Parties in Interest.
ORIGINAL PROCEEDINGS
New Mexico Environmental Law Center R. Bruce Frederick Douglas Meiklejohn Eric Jantz Santa Fe, NM for Petitioner New Energy Economy, Inc. Gary K. King, Attorney General Eric R. Miller, Assistant Attorney General Stephen A. Vigil, Assistant Attorney General Santa Fe, NM for Petitioner New Mexico Environmental Improvement Board Gary K. King, Attorney General Nanette E. Erdman, Assistant Attorney General Santa Fe, NM for Respondent Honorable William W. Shoobridge Montgomery & Andrews, P.A. Louis W. Rose Jeffrey J. Wechsler Lara Katz Santa Fe, NM for Real Parties in Interest Senator Carroll H. Leavell, et al. Miller Stratvert, P.A. Richard L. Alvidrez Albuquerque, NM for Real Parties in Interest Public Service Company of New Mexico and Southwestern Public Service Company Vinson & Elkins, L.L.P. Eric Groten Bryan Moore Austin, TX3 for Real Party in Interest El Paso Electric Company
OPINION
PER CURIAM. {1} When the Legislature lawfully delegates au thority to a state agency to promulgate rules and regulations, may a court intervene to halt proceedings before the agency adopts such rules or regulations? This question is oneof substantial public interest because court intervention in administrative proceedings befo re the adoption of rules or regulations may thwart the public’s right to participate in such proceedings. We hold that a court may not intervene in administrative rule-making pro ceedings before the adoption of a rule or regulation for three reasons. First, the separation of powers doctrine forbids a court from prematurely interfering with the administrative processes created by the Legislature. Second, only upon completion of administrative rule-making proceedings will a party be certain that it is aggrieved, since it is not known whether a regulation will even be adopted by the agency. Third, since the administrative proceeding is not complete, there is no actual controversy to be resolved by a declaratory judgment action.
I. BACKGROUND {2} The Legislature empowered the Environmental Improvement Board (Board) to prevent or abate air pollution and to adopt or pr omulgate regulations consistent with the Air Quality Control Act. NMSA 1978, § 74-2-5 ( 1967) (as amended through 2007). This matter originated in a proposal to regulate greenhouse gas emissions that Petitioner New Energy Economy (New Energy) filed with the Board. The Board held a public meeting on January 5, 2009 in Santa Fe to determine whether to hold a hearing on New Energy’s proposed regulation. At the hearing were representativ es from the Public Service Company of New Mexico, the Dairy Producers of New Mexico, th e New Mexico Oil and Gas Association, and the New Mexico Farm and Livestock Bureau, who asked the Board not to conduct a hearing, contending that the Board lacked the authority under the Air Quality Control Act, NMSA 1978, §§ 74-2-1 to -17 (1967) (as amended through 2007), to regulate greenhouse gas emissions unless it first established an ambien t air quality standard. The Board decided to allow briefing on the matter and scheduled a hearing on the issue of its jurisdiction and authority for April 6, 2009. {3} At the hearing on April 6, 2009 in Santa Fe , New Energy argued that (1) the Board had the authority to hold hearings on the matte r, (2) the final regulation might vary fromtheir proposed rule, and (3) the Board could adopt an ambient air quality standard in the rulemaking context. The Board determined that it had the required authority to hear the matter and entered an order establishing a hearing schedule. The groups opposing the petition moved for a temporary stay of the proceedings and filed objections to the scheduling order. On December 31, 2009, public notice was give n on New Energy’s proposed rule. On January 13, 2010, those who had objected to the proposal during the hearings before the4 Board and others (the plaintiffs) filed a comp laint for a declaratory judgment and injunctive relief in the Fifth Judicial District Court in Lea County. The plaintiffs sought to enjoin the Board from conducting further administrative proceedings, arguing that the Board lacked statutory authority to consider or adopt New Energy’s petition. New Energy and the Board filed motions to dismiss the action. The distri ct court granted the plaintiffs’ request for a preliminary injunction. {4} The Board and New Energy petitioned this C ourt for a writ of superintending control or prohibition and requested a stay of the distri ct court proceedings. The plaintiffs, as real parties in interest, opposed Petitioners’ requests. We reviewed the district court’s decision to issue a preliminary injunction for an abuse of discretion. LaBalbo v. Hymes , 115 N.M. 314, 318, 850 P.2d 1017, 1021 (Ct. App. 1993). See also Allstate Ins. Co. v. Firemen’s Ins. Co. , 76 N.M. 430, 433-34, 415 P.2d 553, 555 ( 1966); NMSA 1978, § 44-6-7 (1975). A misapprehension of the law constitutes an abuse of discretion. See State v. Elinski , 1997- NMCA-117, ¶ 8, 124 N.M. 261, 948 P.2d 1209. For the reasons that follow, we granted the writ of superintending control and ordered the di strict court to dissolve the injunction issued in the case, dismiss the complaint, and remand the case to the administrative agency for further proceedings.
II. DISCUSSION {5} The central issue is whether the district court erred in granting a preliminary injunction enjoining the Board from completi ng the rule-making process. The plaintiffs contend that the issue is answered by State ex rel. Hanosh v. Environmental Improvement Board [hereinafter Hanosh I ], 2008-NMCA-156, ¶ 8, 145 N.M. 269, 196 P.3d 970, affirmed by State ex rel. Hanosh v. King [hereinafter Hanosh II ], 2009-NMSC-047, 147 N.M. 87, 217 P.3d 100. {6} In the two Hanosh cases, the district court was asked to construe a statute to determine whether the Environmental Improveme nt Board was acting within its legislative authority when it adopted regulations addressing automobile emissions. We affirmed the Court of Appeals, holding that a declaratory judgment action is an appropriate procedure to challenge the Board’s statutory authority to adopt regulations. Hanosh I, 2008-NMCA-156, ¶ 8; Hanosh II, 2009-NMSC-047, ¶ 4. Under the circumstances of Hanosh II, we agreed that the plaintiffs could raise a purely legal challenge to the Board’s statutory authority independent of the administrative appeal process. 2009-NMSC-047, ¶ 4. {7} The plaintiffs argue that this case is precisely like the Hanosh cases because in Hanosh I the Board was in the process of considering proposed regulations when the plaintiffs filed their complaint seeking a decl aratory judgment. They contend that because we upheld the Hanosh I court’s jurisdiction to entertain the action, reasoning that the question before it was purely legal and did not require “special agency expertise or additional fact-finding,” the court in this cas e should have the same authority. 2008-NMCA156, ¶ 8.5 {8} We do not find the Hanosh cases controlling. Although the complaint in the Hanosh cases was filed before the adoption of the regul ations, those regulations were adopted on the same day the plaintiffs delivered their complaint to the Board. Hanosh I, 2008-NMCA-156, ¶ 1. Thus, the Board had actually issued a regul ation at the time the district court heard the challenge to the regulation. This fact distinguishes the Hanosh cases from the one before us. Our holding in both Hanosh I and II should not be cited for the proposition that a court may intervene to halt an administrative rule-m aking proceeding before a rule or regulation is adopted. {9} In addition, while we agree that the Boar d was not engaged in adjudicative factfinding, the Board was attempting to hold h earings to develop legislative facts. Unlike adjudicative facts, legislative facts do not concern individual parties, such as who did what, when, where, and how. . . . Legislative facts are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take. Quynh Truong v. Allstate Ins. Co. , 2010-NMSC-009, ¶ 25, 147 N.M. 583, 227 P.3d 73 (quoting Lee v. Martinez, 2004-NMSC-027, ¶ 13, 136 N.M. 166, 96 P.3d 291 (internal quotation marks and citations omitted)). The inte rruption of this process of legislative factfinding interfered with the Board’s duty, mandated by the Legislature, to hold public hearings before regulations are adopted. See NMSA 1978, § 74-1-9 (1985); NMSA 1978, § 74-2-6 (1992). This process constitutes an essential part of the legislative branch’s function to make policy choices. See State ex rel. Haragan v. Harris , 1998-NMSC-043, ¶ 23, 126 N.M. 310, 968 P.2d 1173 (Serna, J., disse nting) (“The New Mexico Constitution establishes the legislative branch as the entity to represent the coll ective will of the populace for purposes of creating laws to effectuate the public policy of the State.”). A. Separation of Powers {10} Although we have never specifically stated that our cases addressing the relationship between administrative proceedings and declar atory judgment actions are controlled by the doctrine of separation of powers, that doctrin e has been implicit in our reasoning. When we wrote in Smith v. City of Santa Fe , 2007-NMSC-055, ¶ 15, 142 N.M. 786, 171 P.3d 300, that the Declaratory Judgment Act provides an altern ative means of challenging an administrative entity’s authority to adopt a regulation, we cautioned against using a declaratory judgment action to challenge or review administrative actions if such an approach would foreclose any necessary fact-finding by the administrative en tity, discourage reliance on any special expertise that may exist at the administrative level, disregard an exclusive statutory scheme for the review of administrative decisions, or circumvent procedural or substantive limitations that would otherwise limit review6 through means other than a declaratory judgment action.
Id . We repeated this admonition in Stennis v. City of Santa Fe , 2008-NMSC-008, ¶ 3, 143 N.M. 320, 176 P.3d 309 and State ex rel. Regents of Eastern New Mexico University v. Baca , 2008-NMSC-047, ¶ 20, 144 N.M. 530, 189 P.3d 663 (per curiam). The caution we gave against using judicial action to circumvent the requirements of administrative proceedings authorized by the Legislature defers to the le gislative process that creates an agency and empowers it to adopt rules or regulations to carry out its powers. {11} Most of our recent cases addressing the in teraction of declaratory judgment actions and administrative proceedings involved administrative adjudications; that is, the application of existing law to the facts of a particular matter. See, e.g. , Baca , 2008-NMSC-047, ¶ 3 (concerning the construction of a contract in the context of a bid protest by the unsuccessful party); Stennis , 2008-NMSC-008, ¶ 11 (involving a dispute over whether city ordinance requiring a permit to drill a domestic well applied to the plaintiff); Smith , 2007-NMSC-055, ¶ 1 (addressing whether the City of Santa Fe could adopt an ordinance requiring a particular plaintiff to obtain a city permit for a domestic well). {12} In those cases, we concluded that when th e matter at issue (1) is purely legal, (2) requires no specialized agency fact-finding, and (3) there is no exclusive statutory remedy, it is a proper matter for a declaratory judgment action and does not require exhaustion of administrative remedies. Smith , 2007-NMSC-055, ¶¶ 17, 27. Even when the questions to be addressed were purely legal, however, we ha ve held that a party who initiated the appeals process in an administrative action could not use a declaratory judgment action to circumvent the requirements of an administrative appeal. See Baca , 2008-NMSC-047, ¶ 22 (requiring the plaintiff, who had initiated the appeals process to resolve a purely legal issue, to file the action in the judici al district where appellate review of the administrative action would have taken place); Smith , 2007-NMSC-055, ¶ 23 (requiring the plaintiff, who had initiated the appeals process to resolve a purel y legal issue, to comply with the time limits for judicial review, but holding such restricti ons did not apply to the plaintiff who had not initiated the appeals process); Stennis , 2008-NMSC-008, ¶¶ 2-3 (permitting a declaratory judgment action to resolve a purely legal matter when no appeals process had been initiated). {13} In all of these cases, we acknowledged that in creating the declaratory judgment action, the Legislature provided, in relevant part , that “[a]ny person . . . whose rights . . . are affected by a statute, municipal ordinance, cont ract or franchise, may have determined any question of construction . . . arising under the . . . statute, ordinance, contract or franchise and obtain a declaration of rights, status orother legal relations thereunder.” NMSA 1978, § 44-6-4 (1975). We also implicitly recognized th at the Legislature has frequently delegated to administrative agencies the authority to resolve disputes involving its expertise arising under specific statutes and regulations. {14} The limitations we have placed on the use of the declaratory judgment action respect the role of each branch of government in the constitutional scheme and the administrative7 processes put in place by the Legislature. Article III, Section 1 of the New Mexico Constitution divides state government into “three distinct departments, the legislative, executive and judicial.” Although we have recognized “that the constitutional doctrine of separation of powers permits some ove rlap of governmental functions,” State ex rel. Taylor v. Johnson , 1998-NMSC-015, ¶ 23, 125 N.M. 343, 961 P.2d 768, it remains true that “[w]ithin our constitutional system, each branch of government maintains its independent and distinct function.” Id. ¶ 21 (citing State v. Fifth Judicial Dist. Court , 36 N.M. 151, 153, 9 P.2d 691, 692 (1932) for the proposition that “[ t]he Legislature makes, the executive executes, and the judiciary construes the laws.”). Within this constitutional scheme, we have recognized the Legislature’s power to delegate both adjudicative and rule-making power to administrative agencies. See Bd. of Educ. of Carlsbad Mun. Sch. v. Harrell , 118 N.M. 470, 483-84, 882 P.2d 511, 524-25 (1994) (citing Wylie Corp. v. Mowrer , 104 N.M. 751, 753, 726 P.2d 1381, 1383 (1986)), for the proposition that th e Legislature may delegate adjudicatory power to agencies); Duke City Lumber Co. v. N. M. Envtl. Improvement Bd. , 101 N.M. 291, 292, 681 P.2d 717, 718 (1984) (observing that the Legi slature “grants agencies the discretion of promulgating rules and regulations which ha ve the force of law”). Courts should not intervene to halt administrative hearings before rules or regulations are adopted. To do so would thwart the public’s opportunity to participate in rule-making. Because of the necessity to respect the separate branches of government, courts should not intervene to halt administrative hearings before rules or regulations are adopted. To do so could deprive thepublic of the opportunity to propose rules or regulations and otherwise participate in the rulemaking process. In addition, the administrative agency should be given the opportunity to correct any errors that have been brought to its attention during the course of such proceedings.
B. Because the Administrative Proceedin gs Were Not Complete, the Declaratory Judgment Action Was Not Ripe, and There Was Not an Actual Controversy {15} Petitioners argue that because the rule-making process was incomplete, there was no final agency action, and the declaratory judgment action was premature and not ripe for review. They note that in the context of judi cial review of administrative regulations, the United States Supreme Court has adopted a two-part test to determine whether a regulation is ripe for review. See Abbott Labs. v. Gardner , 387 U.S. 136, 149 (1967) (holding that a court must “evaluate both the fitness of the i ssues for judicial decision and the hardship to the parties of withholding court consideration”), abrogated on other grounds by Califano v. Sanders , 430 U.S. 99, 105 (1977). In applying the first prong, the Court determined that a rule was ripe for review befo re it was enforced, but did not go so far as to state such a matter was ripe before it has been promulgated. See Abbott , 387 U.S. at 151. We have relied on the first prong of the Abbott test to explain that the doctrine of ripeness “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative polic ies, and also to protect the agencies from judicial interference until an administrative decision has been formalized.” See U.S. West Commc’ns, Inc. v. N.M. State Corp. Comm’n , 1998-NMSC-032, ¶ 8, 125 N.M. 798, 965 P.2d 917 (quoting Abbott , 387 U.S. at 148-49 (internal quotation marks omitted)).8 {16} The plaintiffs respond that a ripeness analys is is not applicable in this case because the federal doctrine of ripeness relied on by Petitioners has no basis in the New Mexico Constitution. We agree that the New Mexi co Constitution does not expressly impose a “cases or controversies” limitation on state courts like that imposed upon the federal judiciary by Article III, Section 2 of the United States Constitution. However, we have also held that the judicial power to resolve disputes in a government built upon a foundation separating the legislative, executive, and judi cial functions should be “guided by prudential considerations.” N.M. Right to Choose/NARAL v. Johnson, 1999-NMSC-005, ¶¶ 12-13, 126 N.M. 788, 975 P.2d 841. Indeed, “prudential ru les” of judicial self-governance, like standing, ripeness, and mootness, are “founded in concern about the proper—and properly limited—role of courts in a democratic society” and are always relevant concerns. Warth v. Seldin , 422 U.S. 490, 498 (1975). See also Schlesinger v. Reservists Comm. to Stop the War , 418 U.S. 208, 221-27 (1974). {17} The Declaratory Judgment Act itself requires the presence of an “actual controversy” before a district court can assume juri sdiction in a declaratory judgment action. See NMSA 1978, § 44-6-2 (1975). In the absence of any actual case or controversy, it is improper to issue a declaratory judgment. Yount v. Millington , 117 N.M. 95, 103, 869 P.2d 283, 291 (Ct. App. 1993). One of the “prerequisites of ‘actual controversy’ warranting consideration in a declaratory judgment action [is that] . . . th e issue involved must be ripe for judicial determination.” Sanchez v. City of Santa Fe , 82 N.M. 322, 324, 481 P.2d 401, 403 (1971). {18} Thus, even if a purely legal question is pr esented for declaratory judgment, it is not justiciable unless it is ripe. In Yount , our Court of Appeals wrote that “‘[t]he mere possibility or even probability that a person ma y be adversely affected in the future by official acts’ fails to satisfy the actual c ontroversy requirement.” 117 N.M. at 103, 869 P.2d at 291 (citing with approval a clarification of the “actual controversy” requirement set out in Dawson v. Department of Transportation , 480 F. Supp. 351, 352 (W.D. Okla. 1979)). In the instant case, the proposed regulation was the subject of public hearings, and the final version, if one emerges from the process, is unknown. It is only upon the adoption of a regulation that the parties can be certain that they are aggrieved and that there is an actual controversy. {19} Under these circumstances, the question of whether the Board’s rule-making actions exceeded its legislative authority is not ripe for judicial review because no final rule-making action occurred. Judicial action that disrupts the administrative process before it has run its course intrudes on the power of another branchof government. Therefore, we use our power of superintending control to prevent the j udicial branch from interfering with the administrative process. See In re Extradition of Martinez , 2001-NMSC-009, ¶ 17, 130 N.M. 144, 20 P.3d 126 (stating that “the substantial separation of powers concerns . . . provide the requisite level of injury necessary for the issuance of the writ”).
III. CONCLUSION9 {20} Because judicial action in this matter interf ered with the processes of another branch of government, we exercise our power of superi ntending control and order the district court to dismiss the complaint, dissolve the preliminary injunction, and remand the matter to the administrative agency. {21} IT IS SO ORDERED.

____________ _________________________ CHARLES W. DANIELS, Chief Justice

___________ __________________________ PATRICIO M. SERNA, Justice

__________ ___________________________ PETRA JIMENEZ MAES, Justice

_________ ____________________________ RICHARD C. BOSSON, Justice

_______ ______________________________ EDWARD L. CHÁVEZ, Justice Topic Index for New Energy Economy, Inc. v. Shoobridge , Docket No. 32,396 and NMIEB v. Shoobridge, Docket No. 32,409
AL ADMINISTRATIVE LAW AND PROCEDURE AL-AA Administrative Appeal AL-AL Administrative Law, General AL-JR Judicial Review AL-RU Rules
AE APPEAL AND ERROR AE-AJ Appellate Jurisdiction
CT CONSTITUTIONAL LAW CT-CG Constitutional Law, General CT-RP Ripeness CT-SP Separation of Powers
CU COURTS CU–IP Inherent Powers
JG JUDGES JG-AD Abuse of Discretion10 JM JUDGMENT JM-DJ Declaratory Judgment
JD JURISDICTION
JD-AJ Appellate Jurisdiction JD-DC District Court JD-SC Supreme Court JD-SM Subject Matter