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 1        IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 2   SOUTHWEST ENERGY EFFICIENCY PROJECT,
 3   ENVIRONMENT NEW MEXICO, SUNDANCER
 4   CREATIONS CUSTOM BUILDERS, LLC, eSOLVED,
 5   INC., the SIERRA CLUB, TAMMY FIEBELKORN,
 6   FAREN DANCER, SANDERS MOORE, ERIKA WOLF,
 7   and SOMMER BATTERSON,

 8          Appellants,

 9 v.                                                            NO. 31,383, consolidated
10                                                                   with 31,384; 31,385; and
11                                                                   31,386

12 THE NEW MEXICO CONSTRUCTION INDUSTRIES
13 COMMISSION, the NEW MEXICO CONSTRUCTION
14 INDUSTRIES DIVISION, and RICHARD W. TAVELLI,

15          Appellees.


16 APPEAL FROM THE NEW MEXICO CONSTRUCTION INDUSTRIES
17 COMMISSION

18   New Mexico Environmental Law Center
19   Douglas Meiklejohn
20   R. Bruce Frederick
21   Eric Jantz
22   Jonathan Block
23   Santa Fe, NM
 1 for Appellants

 2 Gary K. King, Attorney General
 3 Justin R. Woolf, Assistant Attorney General
 4 Albuquerque, NM

 5 for Appellee New Mexico Construction Industries Commission

 6 Regulation & Licensing Dep’t
 7 James C. McKay, Chief General Counsel
 8 Santa Fe, NM

 9 for Appellee Construction Industries Division
10 and Richard W. Tavelli



11                          MEMORANDUM OPINION

12 BUSTAMANTE, Judge.

13   {1}   Southwest Energy Efficiency Project, Environment New Mexico, Sundancer

14 Creations Custom Builders, LLC, eSolved, Inc., the Sierra Club, Tammy Fiebelkorn,

15 Faren Dancer, Sanders Moore, Erika Wolf, and Sommer Batterson (Appellants) appeal

16 adoption of revisions to four building codes1 by the New Mexico Construction

17 Industries Commission (Commission), the New Mexico Construction Industries

18 Division (CID), and Richard W. Tavelli, Director of the Division. Because the


         1
19         The New Mexico Energy Conservation Code (14.7.6 NMAC (08/01/2011)),
20 New Mexico Plumbing Code (14.8.2 (01/28/2011)), New Mexico Mechanical Code
21 (14.9.2 NMAC (08/01/2011)), and New Mexico Electrical Code (14.10.4 NMAC
22 (11/01/2011)).

                                           2
 1 Commission failed to state any reason for its adoption of the revisions, it did not

 2 provide a record sufficient for meaningful appellate review. The revisions are set

 3 aside and the matter remanded for proceedings consistent with this Opinion.

 4 I.      BACKGROUND

 5   {2}   In April 2011, the Commission began considering proposed revisions to New

 6 Mexico’s electrical, energy conservation, mechanical, and plumbing codes. The

 7 purpose of the revisions was to “remove energy conservation requirements that are

 8 beyond the 2009 International Energy Conservation Code.” The Commission held

 9 four public meetings on June 2, 2011, in Albuquerque, Farmington, Las Cruces, and

10 Roswell and received comments from the public in writing as well as at the meetings.

11   {3}   The Commission voted to adopt the proposed revisions on June 10, 2011, at a

12 public meeting. We refer to the revisions adopted on that day as the “revised codes.”

13 At that meeting, the chair of the Commission, Randy Baker, made a brief comment

14 which was followed by a motion to adopt the revised energy conservation code. The

15 motion was passed with one dissenting vote. Motions for adoption of the revised

16 plumbing, mechanical, and electrical codes followed and each passed with one

17 dissenting vote. There was no discussion or deliberation about the revised codes

18 during the voting. The draft minutes of the meeting were reviewed and finalized with

19 one amendment on July 27, 2011, at a public meeting. Since the Commission did not


                                             3
 1 adopt any separate findings or orders, the minutes of the June 2011 meeting are the

 2 only record of the Commission’s deliberation and decision. Appellants appealed to

 3 this Court pursuant to NMSA 1978, Section 61-1-31(A) (1981) (“Any person who is

 4 or may be affected by a regulation adopted by the [Commission] may appeal to the

 5 court of appeals for relief.”).

 6 II.     DISCUSSION

 7   {4}   Appellants make seven arguments for why “this Court should reverse the

 8 Appellees’ decisions to adopt the [revised c]odes.”        However, we agree with

 9 Appellants’ first argument and because that determination is dispositive, we need not

10 address the others.

11   {5}   Appellants maintain that adoption of the revised codes must be reversed

12 because the Commission failed to “explain the reasons for [its] decisions so that

13 reviewing courts can conduct meaningful review.” Appellants rely on Fasken v. Oil

14 Conservation Commission, 87 N.M. 292, 532 P.2d 588 (1975) and City of Roswell v.

15 New Mexico Water Quality Control Commission, 84 N.M. 561, 505 P.2d 1237 (Ct.

16 App. 1972) in support of this contention. In Fasken, appellant appealed the Oil

17 Conservation Commission’s (OCC) denial of his applications on the basis of a lack

18 of specific findings sufficient for review on appeal. 87 N.M. at 294, 532 P.2d at 590.

19 There, the OCC had entered ultimate findings, but no factual findings on which those


                                             4
 1 conclusions were based. Id. at 293, 532 P.2d at 589 (stating the ultimate findings); id.

 2 at 294, 532 P.2d at 590 (stating that no factual findings were entered). The Supreme

 3 Court concluded that “reversal is . . . required [because it did] not have the vaguest

 4 notion of how the [OCC] reasoned its way to its ultimate findings.” Id. In City of

 5 Roswell, the New Mexico Water Quality and Control Commission adopted two

 6 regulations and the City of Roswell appealed. 84 N.M. at 562, 505 P.2d at 1238. The

 7 “record reveal[ed] only the notice of the public hearing, the testimony of the various

 8 experts and others, some exhibits and the regulations.” Stating that “[w]e have no

 9 indication of what the [c]ommission relied upon as a basis for adopting the

10 regulations[,]” this Court concluded that “[it could not] effectively perform the review

11 authorized by [statute without] indicat[ion of] what facts and circumstances were

12 considered and the weight given to those facts and circumstances.” Id. at 565, 505

13 P.2d at 1241.

14   {6}   These cases rest on the standard of review for administrative decisions, which

15 limits review to determination of whether the regulation is “(1) arbitrary, capricious

16 or an abuse of discretion; (2) contrary to law; or (3) against the clear weight of

17 substantial evidence of the record.” Section 61-1-31(C). In addition, unlike our

18 review of district court decisions, the separation of powers doctrine prevents courts

19 from providing a rationale for a decision when the administrative body fails to do so.


                                              5
 1 Atlixco Coal. v. Maggiore, 1998-NMCA-134, ¶ 20, 125 N.M. 786, 965 P.2d 370 (“For

 2 the court to supply reasons for the [s]ecretary . . . is not consistent with the doctrine

 3 of separation of powers because it foists upon the court what is essentially the function

 4 of the Executive Branch of government.” (internal quotation marks and citation

 5 omitted)). Under these principles, it is clear that this Court cannot review whether the

 6 Commission’s acts were “arbitrary, capricious or an abuse of discretion[,] . . . contrary

 7 to law[,] or . . . against the clear weight of substantial evidence of the record” unless

 8 the Commission provides an explanation for its actions. Section 61-1-31(C).

 9   {7}   The Commission and the CID contend that reversal is not required because

10 Fasken and City of Roswell are “inapposite” to this case, because the “voluminous

11 record of public participation” supports the Commission’s decisions and is sufficient

12 to permit this Court to review them, and because the Commission chair made

13 statements that indicate that “the Commission was considering adoption of regulations

14 for articulated and clear reasons.” These arguments are unavailing.

15   {8}   The Commission and CID cite three cases in which our appellate courts have

16 distinguished Fasken or City of Roswell. We understand their argument to be that

17 these cases stand for the proposition that Fasken and City of Roswell “are not relevant

18 when measured against the totality of the . . . [record proper].” The Commission and

19 CID misstate the Court’s holdings in those cases. What distinguishes them from


                                               6
 1 Fasken and City of Roswell is not the size of the record but the presence of a statement

 2 of the rationale behind the ultimate decision by the administrative body. In Bass

 3 Enterprises Production Company v. Mosaic Potash Carlsbad, Inc., the OCC had

 4 entered findings in the form of orders, and this Court determined that “[t]he OCC’s

 5 orders in the context of the evidence presented, and the statutory mandates and rules

 6 implemented by the OCC, clearly demonstrate a rational connection between the facts

 7 found and choices made.” 2010-NMCA-065, ¶ 48, 148 N.M. 516, 238 P.3d 885

 8 (emphasis added). Similarly, in Regents of the University of California v. New Mexico

 9 Water Quality Control Commission, this Court determined that there was “a sufficient

10 foundation to perform its task of review” found in the “record containing oral

11 testimony, written testimony, exhibits, comments, and statement of reasons.” 2004-

12 NMCA-073, ¶ 14, 136 N.M. 45, 94 P.3d 788 (emphasis added). Finally, in Bokum

13 Resources Corporation v. New Mexico Water Quality Control Commission, our

14 Supreme Court held that it could review the commission’s decisions because the

15 commission had given eight general reasons behind adoption of new regulations. 93

16 N.M. 546, 553, 603 P.2d 285, 292 (1979) (“We agree . . . that the [c]ommission

17 reasonably complied with the principle set forth in City of Roswell: that reasons

18 should be given upon which the [c]ommission bases its adoption of regulations.”).

19 Thus, in those cases appellate review was possible and appropriate because the record


                                              7
 1 included both a statement of reasons and a record proper of sufficient heft to permit

 2 the Court to assess whether the reasons were supported in fact or law. The record here

 3 contains no factual findings and no statement of reasons. Bass, Regents of the

 4 University of California, and Bokum are not controlling here.

 5   {9}    The Commission and CID also argue that the Commission’s rationale for

 6 adoption of the revised codes can be found in statements made by the chair of the

 7 Commission at the meeting at which the revised codes were adopted and another

 8 meeting over a month later. They maintain that “[t]hese cumulative statements of

 9 June 10, 2011 and July 27, 2011 by Chairman Baker . . . ‘suffice’ as the Commission’s

10 reasoning to adopt the [c]odes[.]” We disagree for two reasons.

11   {10}   First, the June 10, 2011 statement is too general to serve as a “rationale” for

12 adoption of complex electrical, plumbing, mechanical, and energy conservation codes.

13 Appellees point out that “general statements” of reasons for administrative action have

14 been acceptable in other cases. See Regents of the Univ. of Cal., 2004-NMCA-073,

15 ¶ 13; Bokum, 93 N.M. at 552-53, 603 P.2d at 291-92. In Regents of the University of

16 California, the commission gave the following reasons:

17          4.    The changes approved herein to New Mexico’s water quality
18          standards protect public health and welfare, enhance the quality of New
19          Mexico’s waters, and serve the purposes of the Clean Water Act and the
20          New Mexico Water Quality Act.



                                               8
 1          5.    The changes approved herein . . . respect the use and value of the
 2          water for water supplies, propagation of fish and wildlife, recreational
 3          purposes, and agricultural, industrial and other purposes.

 4          6.   The regulatory changes affected herein are designed to meet the
 5          EPA Guidelines.

 6 2004-NMCA-073, ¶ 11 (alteration in original). The Court “observe[d] that the

 7 [c]ommission’s statement of reasons for adopting the regulations is quite general,

 8 more so than approved in other cases. . . . Nevertheless, [it] believe[d] it an adequate

 9 statement, albeit barely so.” Id. ¶ 13. That “barely adequate” statement of reasons is

10 in fact far more specific than the statement relied on here. The first statement was

11 made just before the Commission voted on the revised codes. Chairman Baker said

12          I think that we are all trying to do what is best for New Mexico, for the
13          industry, for the public at large, and it was a little concerning to find out
14          that there was some information that came in at the latter part of our
15          assessment of public comment that shed a little bit of a dark cloud on
16          some of the changes for the New Mexico Energy Conservation Code. So
17          with that I just wanted to make everybody aware that we have had some
18          discussion on trying to figure out exactly what the best solution is for the
19          New Mexico Code. We are all here wanting to make sure that
20          rulemaking decisions will long outlast us, and our future, and our
21          families, and will take care of everybody. But I think it is important to
22          point out that there was some areas here that we certainly were
23          concerned with. This was handed down to us from a previous
24          administration and I just want to make sure that you all are aware of the
25          difficulty that we have in making these decisions.

26   {11}   An assertion that the Commission was doing what was “best for New Mexico,

27 for the industry, [and] for the public at large” is far too broad to be a sufficient


                                                 9
 1 statement of reasons to permit review of the Commission’s decision on appeal.

 2 Presumably, all administrative bodies seek to act in the “best interest” of their

 3 constituents and the public but a statement of reasons sufficient for review requires

 4 more. The statement here provides no “indicat[ion of] what facts and circumstances

 5 were considered and the weight given to those facts and circumstances” and is,

 6 therefore, insufficient for review. City of Roswell, 84 N.M. at 565, 505 P.2d at 1241.

 7   {12}   Second, the July 27, 2011, statement cannot be considered because it was made

 8 too late. Chairman Baker moved to amend the minutes of the June 10, 2011, meeting

 9 to reflect the number of members of each organization that had expressed support for

10 the revised codes and that “the numbers speaking in favor of the [c]ode[s] was

11 [actually] significantly larger . . . than those in opposition.” This statement, however,

12 was made well after the vote was taken. We “are not free to accept . . . post hoc

13 rationalizations,” such as the July 27, 2011 statement, “since ‘in dealing with a

14 determination or judgment which an . . . agency alone is authorized to make, [we]

15 must judge the propriety of such action solely by the grounds invoked by the agency.’

16 ” Tenneco Oil Co. v. N.M. Water Quality Control Comm’n, 107 N.M. 469, 474, 760

17 P.2d 161, 166 (Ct. App. 1987), (alteration in original), (quoting Securities & Exch.

18 Comm’n v. Chenery Corp., 332 U.S. 194, 196 (1947)), superceded by statute on other

19 grounds as stated in N.M. Mining Ass’n v. N.M. Water Quality Control Comm’n,


                                              10
 1 2007-NMCA-010, ¶ 19, 141 N.M. 41, 150 P.3d 991. In Tenneco, this Court

 2 considered whether a statement prepared after a vote was a “post hoc rationalization”

 3 and determined that it was not because “it was compiled, edited and adopted before

 4 the regulations were filed.” Id. In contrast, here Chairman Baker’s July 27, 2011,

 5 statement was made after the vote was taken and after the revised codes were filed

 6 with the State Records Center. We conclude that the July 27, 2011, was a post hoc

 7 rationalization and decline to consider it as a statement of reasons for adoption of the

 8 revised codes.

 9   {13}   The Commission and CID also make several arguments relying on

10 Pharmaceutical Manufacturers Association v. New Mexico Board of Pharmacy, 86

11 N.M. 571, 576, 525 P.2d 931, 936 (Ct. App. 1974). The gist of these arguments is that

12 the statements of a single Commission member (Chairman Baker) could suffice to

13 serve as a statement of reasons when the other Commission members did not object

14 and/or “adopted” the statements through silence. See id. Since we have determined

15 that Baker’s statements are insufficient to permit review, we need not address whether

16 they were adopted by the entire Commission.

17 III.     CONCLUSION

18   {14}   The revised codes listed in footnote one are set aside and the matter remanded

19 to the Commission for reconsideration, a new vote, and a statement of reasons for the


                                              11
1 vote, preferably in written form. See Atlixco Coal., 1998-NMCA-134, ¶ 44; City of

2 Roswell, 84 N.M. at 565, 505 P.2d at 1241; Fasken, 87 N.M. at 294, 532 P.2d at 590.

3   {15}   IT IS SO ORDERED.




4
5                                              MICHAEL D. BUSTAMANTE, Judge

6 WE CONCUR:


7 _________________________________
8 LINDA M. VANZI, Judge


 9 _________________________________
10 TIMOTHY L. GARCIA, Judge




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