NM Stat § 39-3-1.1 (2021)
2021 New Mexico Statutes|Chapter 39 - Judgments, Costs, Appeals|Article 3 - Appeals|Section 39-3-1.1 - Appeal of final decisions by agencies to district court; application; scope of review; review of district court decisions.

A. The provisions of this section shall apply only to judicial review of agency final decisions that are placed under the authority of this section by specific statutory reference. B. Upon issuing a final decision, an agency shall promptly: (1) prepare a written decision that includes an order granting or denying relief and a statement of the factual and legal basis for the order; (2) file the written decision with the official public records of the agency; and (3) serve a document that includes a copy of the written decision and the requirements for filing an appeal of the final decision on: (a) all persons who were parties in the proceeding before the agency; and (b) every person who has filed a written request for notice of the final decision in that particular proceeding. C. Unless standing is further limited by a specific statute, a person aggrieved by a final decision may appeal the decision to district court by filing in district court a notice of appeal within thirty days of the date of filing of the final decision. The appeal may be taken to the district court for the county in which the agency maintains its principal office or the district court of any county in which a hearing on the matter was conducted. When notices of appeal from a final decision are filed in more than one district court, all appeals not filed in the district court in which the first appeal was properly filed shall be dismissed without prejudice. An appellant whose appeal was dismissed without prejudice pursuant to the provisions of this subsection shall have fifteen days after receiving service of the notice of dismissal to file a notice of appeal in the district court in which the first appeal was properly filed. D. In a proceeding for judicial review of a final decision by an agency, the district court may set aside, reverse or remand the final decision if it determines that: (1) the agency acted fraudulently, arbitrarily or capriciously; (2) the final decision was not supported by substantial evidence; or (3) the agency did not act in accordance with law. E. A party to the appeal to district court may seek review of the district court decision by filing a petition for writ of certiorari with the court of appeals, which may exercise its discretion whether to grant review. A party may seek further review by filing a petition for writ of certiorari with the supreme court. F. The district court may certify to the court of appeals a final decision appealed to the district court, but undecided by that court, if the appeal involves an issue of substantial public interest that should be decided by the court of appeals. The appeal shall then be decided by the court of appeals. G. The procedures governing appeals and petitions for writ of certiorari that may be filed pursuant to the provisions of this section shall be set forth in rules adopted by the supreme court. H. As used in this section: (1) "agency" means any state or local public body or officer placed under the authority of this section by specific statutory reference; (2) "final decision" means an agency ruling that as a practical matter resolves all issues arising from a dispute within the jurisdiction of the agency, once all administrative remedies available within the agency have been exhausted. The determination of whether there is a final decision by an agency shall be governed by the law regarding the finality of decisions by district courts. "Final decision" does not mean a decision by an agency on a rule, as defined in the State Rules Act [Chapter 14, Article 4 NMSA 1978]; and (3) "hearing on the matter" means a formal proceeding conducted by an agency or its hearing officer for the purpose of taking evidence or hearing argument concerning the dispute resolved by the final decision. History: Laws 1998, ch. 55, § 1; 1999, ch. 265, § 1. ANNOTATIONSCross references. — For appeals to district court, see Rule 1-074 NMRA. For appeals from administrative agencies, see Rules 1-074 to 1-077 NMRA. For appeal of refusal to register voter, see 1-4-21 NMSA 1978. For appeal of determinations relating to incorporation of territories, see 3-2-9 NMSA 1978. For appeal of order or decision of planning commission, see 3-19-8 NMSA 1978. For appeal of decision of joint municipal-county zoning authority, see 3-21-4 NMSA 1978. For appeal of zoning authority decision, see 3-21-9 NMSA 1978. For appeals relating to improvement districts, see 3-33-13, 3-33-16, 3-33-22 and 3-33-35 NMSA 1978. For appeal of provisional order relating to fire-fighting facilities, see 3-35-3 NMSA 1978. For appeal of order relating to repair, closing and demolition of dwellings, see 3-46-43 NMSA 1978. For appeal of provisional order relating to parking improvements, see 3-51-12 NMSA 1978. For appeal of disallowance of claims against county, see 4-45-5 NMSA 1978. For appeal of reassessment of improvement district assessment by county board, see 4-55A-31 NMSA 1978. For appeal of decision by administrator under Uniform Unclaimed Property Act, see 7-8A-16 NMSA 1978. For appeal from order of the secretary of taxation and revenue or county valuation protests board, see 7-38-28 NMSA 1978. For appeal of board decision under Personnel Act, see 10-9-18 NMSA 1978. For appeal of final decision of retirement board, see 10-11-120 NMSA 1978. For appeal of final agency order or decision in an adjudicatory proceeding, see 12-8-16 NMSA 1978. For judicial review authorized under Procurement Code, see 13-1-183 NMSA 1978. For appeal of appeals board decisions under Public Works Minimum Wage Act, see 13-4-15 NMSA 1978. For appeal of game commission decision revoking license, see 17-3-34 NMSA 1978. For appeal of decision by commissioner fixing value of improvements or in collecting costs, see 19-7-17 NMSA 1978. For appeal of commissioner's decision relating to sale or lease of state lands, see 19-7-67 NMSA 1978. For appeal of order by commissioner affecting appellant's interest in oil or gas leases, see 19-10-23 NMSA 1978. For appeal of final determination relating to registration of proprietary school, see 21-24-8 NMSA 1978. For appeal of suspension or revocation of teaching certificate, see 22-10A-25 and 22-10A-28 NMSA 1978. For appeal of final decision relating to health facility, see 24-1-5 NMSA 1978. For appeal of denial, suspension or revocation of food service permit, see 25-1-11 NMSA 1978. For appeal of board decision relating to imported meats, see 25-3-12 NMSA 1978. For appeal of decision relating to renewal, suspension or revocation of state meat inspection service or establishment license, see 25-3-19 NMSA 1978. For appeal of dairy establishment denial, suspension or revocation, see 25-7B-9 NMSA 1978. For appeal of decision under Public Assistance Appeals Act, see 27-3-4 NMSA 1978. For appeal of order affecting hospital or ambulance service, see 27-5-12.1 NMSA 1978. For appeal of civil penalty for interference with the office of long-term care ombudsman or retaliatory actions, see 28-17-19 NMSA 1978. For appeal of disciplinary action against state police officer, see 29-2-11 NMSA 1978. For appeal of law enforcement agency refusal to correct arrest record information, see 29-10-8 NMSA 1978. For appeal of administrative decisions relating to detention facility standards and inspections, see 32A-2-4 NMSA 1978. For appeal of decision relating to dismissal, demotion or suspension of covered employee under District Attorney Personnel and Compensation Act, see 36-1A-9 NMSA 1978. For appeal of decision relating to child placement agency or foster home, see 40-7A-6 NMSA 1978. For appeal of decision relating to payments under the Relocation Assistance Act, see 42-3-14 NMSA 1978. For appeal of decision of board of county commissioners approving or disapproving a preliminary or final plat, see 47-6-15 NMSA 1978. For appeal of commission order pursuant to Occupational Health and Safety Act, see 50-9-17 NMSA 1978. For appeal of revocation of certificate to conduct affairs in New Mexico of a foreign corporation, or of certificate of incorporation of a domestic corporation, see 53-8-91 NMSA 1978. For appeal of failure by corporation commission (now public regulation commission) to approve articles of incorporation or other document, or of revocation of certificate of foreign corporation, see 53-18-2 NMSA 1978. For appeal of notice of disapproval of documents required under Limited Liability Company Act, see 53-19-67 NMSA 1978. For appeal of decisions relating to administrative penalty under Petroleum Products Standards Act, see 57-19-36 NMSA 1978. For appeal of director's order under Banking Act, see 58-1-45 NMSA 1978. For appeal of supervisor's refusal of savings and loan charter, see 58-10-13 NMSA 1978. For appeal of supervisor's decision after hearing under Savings and Loan Act, see 58-10-84 NMSA 1978. For appeal of order issued pursuant to Model State Commodity Code, see 58-13A-21 NMSA 1978. For appeal of order under New Mexico Securities Act, see 58-13B-56 NMSA 1978. For appeal of act or order of director pursuant to the New Mexico Small Loan Act of 1995, see 58-15-25 NMSA 1978. For appeal of revocation or suspension of license under Motor Vehicle Sales Finance Act, see 58-19-4 NMSA 1978. For appeal of final order issued under Mortgage Loan Company and Loan Broker Act, see 58-21-16 NMSA 1978. For appeal of final order issued under Escrow Company Act, see 58-22-29 NMSA 1978. For appeal from order of superintendent of insurance made after informal or administrative hearing, see 59A-4-20 NMSA 1978. For appeal of revocation of, suspension of or refusal to grant insurance consultant license, see 59A-11A-4 NMSA 1978. For appeal from insurance board order relating to action of superintendent, see 59A-17-35 NMSA 1978. For appeal of decision by superintendent relating to action or decision of FAIR plan administrators, see 59A-29-6 NMSA 1978. For judicial review of order promulgating rates under New Mexico Title Insurance Law, see 59A-30-9 NMSA 1978. For appeal of superintendent's decision relating to action of board of directors of life insurance guaranty association, see 59A-42-12 NMSA 1978. For appeal of superintendent's decision relating to claim denied by insurance guaranty association, see 59A-43-14 NMSA 1978. For appeal of final decision by superintendent relating to contract dispute between health care plan and purveyor, see 59A-47-29 NMSA 1978. For appeal of decision by state fire board, see 59A-52-22 NMSA 1978. For appeal of licensing authority's suspension or revocation of a license under the Bingo and Raffle Act, see 60-2B-4 NMSA 1978. For appeal of approval or disapproval of license under Liquor Control Act, see 60-6B-2 NMSA 1978. For appeal of revocation, suspension or fine of licensee under Liquor Control Act, see 60-6C-6 NMSA 1978. For appeal of adverse decision under Uniform Licensing Act, see 61-1-17 NMSA 1978. For nonreviewability of decisions granting or denying stays of board decisions under Uniform Licensing Act, see 61-1-19 NMSA 1978. For appeal of decision relating to enforcement of Collection Agency Regulatory Act, see 61-18A-32 NMSA 1978. For appeal of decision by director relating to the division's refusal to issue motor vehicle dealer, wrecker, wholesaler or distributor license, see 66-4-3 NMSA 1978. For appeal of decision by director relating to the division's refusal to issue motor vehicle license, see 66-5-36 NMSA 1978. For appeal of order relating to utility relocation hearing, see 67-8-19 NMSA 1978. For appeal of rates, tolls and other charges fixed by board for use of roads, bridges and ferries, see 67-10-2 NMSA 1978. For appeal of zoning board decision, see 67-13-12 NMSA 1978. For appeal of actions relating to mines, see 69-6-2 NMSA 1978. For appeal of final action, other than rule, relating to mine or mining, see 69-36-16 NMSA 1978. For appeal of commission order or decision under Oil and Gas Act, see 70-2-25 NMSA 1978. For appeal of cancellation of compressed natural gas or liquefied petroleum gas license, see 70-5-16 and 70-5-17 NMSA 1978. For appeal of decision of irrigation district board of directors, see 73-11-29 and 73-12-4 NMSA 1978. For appeal of nuclear regulatory commission licensing action, see 74-3-9 NMSA 1978. For appeal of charges assessed for cleanup of orphan hazardous materials, see 12-12-30 NMSA 1978. For appeal of commission ruling on issuance, refusal or revocation of weather control or cloud modification license, see 75-3-11 NMSA 1978. The 1999 amendment, effective July 1, 1999, substituted present subparagraph B(3)(a) for "all parties whose rights are adjudged by the final decision; and", added Subsection F, and redesignated the subsequent subsections accordingly. Meaning of the word "may". — The use of the word "may" in Subsection C of Section 39-1-1.1 NMSA 1978 does not permit an administrative appeal to be brought in any district court. It means that the appeal itself is permissive and not mandatory. State ex rel. ENMU Regents v. Baca, 2008-NMSC-047, 144 M.M. 530, 189 P.3d 663. Requirements of written decision. — Section 39-3-1.1 NMSA 1978, at least as it applies to legislative bodies, plainly requires a document that adequately informs the affected parties of the action of the policymaking body and alerts the parties that they may proceed with an appeal of the legislative order. Village resolutions were officially adopted at public meetings after a lengthy and public process mandated by the Improvement Districts Act. Each contained an order in the form of resolutions, and each contained both facts and law. The resolutions cited Sections 3-33-1 through -43 NMSA 1978 as legal authority for deciding the resolution, and included facts such as the approximate cost of the project and the names of the engineers who completed the study. They outlined the procedure that the village followed in arriving at the resolutions. They also contained a statement confirming that the village council examined the plans, costs, and plat, and accepted them. It incorporated those plans in the resolution, noting that the plans were available for public examination. They included information about the village's consideration of all protests, including a finding that some were without merit while others had merit, and its confirmation of the revised assessment roll, noting that the roll was available for public examination. Both resolutions included written notification of a right to appeal the decisions therein to the district court. This is sufficient to meet the requirements of Section 39-3-1.1B(1) NMSA 1978. Angel Fire v. Wheeler, 2003-NMCA-041, 133 N.M. 421, 63 P.3d 524, cert. denied, 133 N.M. 413, 63 P.3d 516. Factual and legal basis of decision required. — The district court exercising appellate jurisdiction under Section 39-1-1.1 NMSA 1978 is not a fact-determining body. Where a governing body is required by statute to provide a written factual and legal basis for its decision, and a decision turns on factual questions that the governing body failed to resolve, the district court must remand for further proceedings. VanderVossen v. City of Espanola, 2001-NMCA-016, 130 N.M. 287, 24 P.3d 319, cert. quashed, 131 N.M. 221, 34 P.3d 610. Written basis for decision not required. — Even though statute does not explicitly state that the commission must provide a written factual and legal basis for its decision, administrative agencies must provide written factual and legal basis for their decisions in order to permit an effectual and meaningful review. Gila Res. Info. Project v. N.M. Water Quality Comm'n, 2005-NMCA-139, 138 N.M. 625, 124 P.3d 1164, cert. denied, 2005-NMCERT-009, 138 N.M. 439, 120 P.3d 1182. Constitutionality. — Subsection E, vesting the court of appeals with discretionary review authority of appeals to district court does not violate Article 6, Section 2 of the New Mexico constitution, because that section only applies to appeals of a district court's original jurisdiction cases and not to review of the district court acting in an appellate capacity. VanderVossen v. City of Espanola, 2001-NMCA-016, 130 N.M. 287, 24 P.3d 319, cert. quashed, 131 N.M. 221, 34 P.3d 610. Issue is one of "substantial public interest" when it raises a question of first impression that is likely to recur, and when the need for uniformity is great. Jicarilla Apache Nation v. Rio Arriba County Assessor, 2004-NMCA-055, 135 N.M. 630, 92 P.3d 642, rev'd on other grounds, 2004-NMSC-035, 136 N.M. 630, 103 P.3d 554. Rule 12-505 A(1) NMRA is consistent with language in this section that directs review of district court decisions by an appellate court. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. Rule 12-505 NMRA governs procedure by which aggrieved party may seek review in the court of appeals of a district court's determination based on a Rule 1-074 NMRA appeal authorized by this section. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. Sections 66-8-112 and 66-5-35 NMSA 1978 are not read to preclude application of this section; on the contrary, they can be read together harmoniously with 66-5-36 NMSA 1978 to effect the legislature's intent to standardize the method for obtaining judicial review of final decisions of certain administrative agencies. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. Standard of review for court of appeals. — After the enactment of this section, the standard of review for the court of appeals upon the review of a district court decision of an appeal from an administrative agency is based upon the criteria for a writ of certiorari as outlined in Rule 12-505 NMRA, and no longer may the court of appeals review the district court decision under the administrative standard. C.F.T. Dev., LLC v. Board of County Comm'rs, 2001-NMCA-069, 130 N.M. 775, 32 P.3d 784, overruled on other grounds by Rio Grand Chapter of Sierra Club v. N.M. Mining Comm'n, 2003-NMSC-005, 113 N.M. 97, 61 P.3d 806. Insurance company's decision to deny coverage was supported by substantial evidence. — Where respondent's daughter suffered a severely disabling anoxic brain injury which resulted from an incident of cardiac arrest and stroke, and where the insurance company denied coverage for hyperbaric oxygen therapy (HBOT), the district court erred in reversing the insurance company's decision because the HBOT treatments were not only specifically not covered treatments under the health plan into which the insurance company and respondent contracted, they were specifically excluded, and because substantial evidence supported the insurance company's determination that the HBOT treatments were not medically necessary to treat the medical condition under the Insurance Code, based on a lack of evidence that HBOT improved the injury and the lack of evidence establishing a causal linkage between any alleged improvements of the injury and HBOT treatment. Rodarte v. Presbyterian Ins. Co., 2016-NMCA-051, cert. denied. Standard of review for district courts. — District court exceeded the limited review that characterized an administrative appeal by entertaining an issue that had not been raised below. N.M. State Bd. of Psychologist Exam'rs v. Land, 2003-NMCA-034, 133 N.M. 362, 62 P.3d 1244, cert. denied, 133 N.M. 413, 63 P.3d 516. District court acted outside its capacity as an appellate court by engaging in fact-finding when it determined, contrary to the determination of the county board of commissioners, that the administrative record supported a conclusion that a landfill was in a critical area as defined in the county ground water policy. Cadena v. Bernalillo Cnty. Bd. of Cnty. Comm'rs, 2006-NMCA-036, 139 N.M. 300, 131 P.3d 687. Proceedings prior to effective date of section. — Final district court orders following appeals of decisions of administrative agencies were entered after the effective dates of this section and Rule 12-505 NMRA. Therefore, cases before the court of appeals for review were not "pending" cases within the meaning of N.M. const., art. IV, § 34. Hyden v. N.M. Human Servs. Dep't, 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740. Time for filing notice of appeal. — Even though appellants failed to comply with the 20-day time limit imposed by Rule 12-505 NMRA for seeking review on certiorari, extensions were granted where they were sought because of confusion surrounding the enactment and publication of the rule. Hyden v. N.M. Human Servs. Dep't, 2000-NMCA-002, 128 N.M. 423, 993 P.2d 740. Tolling of time to appeal. — Where the developer sought review in federal court of the municipality's denial of the developer's preliminary plat within twenty-eight days after the municipality issued its final decision; while the developer's federal action was pending, the municipality filed an action in state district court to quiet title to the land; and after the federal court dismissed the federal action, the developer timely filed a counterclaim against the municipality in the state district court action to review the municipality's action denying the preliminary plat, the federal action tolled the limitations period to appeal and the developer's appeal for review in state district court was timely. City of Rio Rancho v. Amrep Sw., Inc., 2011-NMSC-037, 150 N.M. 428, 260 P.3d 414, aff'g in part, rev'g in part,2010-NMCA-075, 148 N.M. 542, 238 P.3d 911. Subsection C details appeal process to the district court. Paule v. Santa Fe County, 2005-NMSC-021, 138 N.M.82, 117 P.3d 240. A county's approval or disapproval of a preliminary plat is a final, appealable decision for purposes of Section 47-6-15 NMSA 1978. Zuni Indian Tribe v. McKinley Cnty. Bd. of Cnty. Comm'rs, 2013-NMCA-041, 300 P.3d 133. A county's decision on a preliminary plat is appealable. — Where the county disapproved the applicant's preliminary plat in the form of a written resolution which incorporated the final findings and recommendations of the county planning commission; the resolution followed input by state agencies and other interested parties and public hearings before the planning commission; interested parties submitted proposed findings and recommendations after the hearings; and the findings and recommendations adopted by the county commission included important aspects of the subdivision development and review process, such as water availability, waste disposal and access, given the nature of the county commission's resolution and the procedural history that preceded its passage, the county commission's resolution constituted a "decision" under Section 47-6-15 NMSA 1978 and was appealable. Zuni Indian Tribe v. McKinley Cnty. Bd. of Cnty. Comm'rs, 2013-NMCA-041, 300 P.3d 133. A timely filed appeal from a decision on a preliminary plat application is not rendered moot by the county's decision to approve the final subdivision plat application during the pendency of the appeal. Zuni Indian Tribe v. McKinley Cnty. Bd. of Cnty. Comm'rs, 2013-NMCA-041, 300 P.3d 133. Time for filing notice of appeal. — The time for filing an administrative appeal to the district court under Subsection B of this section begins to run on the date the final decision or order is filed. Paule v. Santa Fe County, 2005-NMSC-021, 138 N.M. 82, 117 P.3d 240. Final decision. — A "final decision" for purposes of this section is an agency ruling that as a practical matter resolves all issues arising from a dispute within the jurisdiction of the agency. Paule v. Santa Fe County, 2005-NMSC-021, 138 N.M. 82, 117 P.3d 240. Decision revoking license or denying limited license. — A party should file a petition for certiorari when that party is seeking review in the Court of Appeals of a district court's determination on appeal from a motor vehicles division decision revoking a license or denying a limited license. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. Rule 1-074 NMRA review in license revocation and denial of limited license cases is authorized by this section. Dixon v. State Taxation & Revenue Dep't, 2004-NMCA-044, 135 N.M. 431, 89 P.3d 680. Appeals from motor vehicles division hearings. — The legislature has designated the district court as the exclusive forum for appeals from motor vehicles division hearings. Maso v. State Taxation & Revenue Dep't, 2004-NMCA-025, 135 N.M. 152, 85 P.3d 276, aff'd., 2004-NMSC-028, 136 N.M. 161, 96 P.3d 286. Special use permit. — Where plaintiff properly sought a special use permit, it was reasonable for her to attempt an administrative resolution before proceeding to court, and a review pursuant to this section and Rule 1-074 NMRA would have been limited to the narrow matter of the special use permit. Takhar v. Town of Taos, 2004-NMCA-072, 135 N.M. 741, 93 P.3d 762, cert. denied, 2004-NMCERT-006, 135 N.M. 788, 93 P.3d 1292. Law reviews. — For article, "Jurisdiction as May Be Provided by Law: Some Issues at Appellate Jurisdiction in New Mexico," see 36 N.M.L. Rev. 215 (2006).