ELR Citation: ELR 20496
No(s). 9482 (N.M. May 18, 1973)

Plaintiffs' action to enjoin an alleged public nuisance created by a power plant's air pollution is dismissed because the New Mexico Environmental Improvement Agency has primary jurisdiction over plaintiffs' claims. The court declines to interfere with agency functions, because it is not convinced that the agency has failed to perform its statutory duties. Although the environmental statutes which vest special competence in the agency to resolve issues of pollution control do not provide a procedure whereby plaintiffs may apply to the agency for relief, or for the agency to grant relief to plaintiffs, if plaintiffs refer their claim to the agency it must seek appropriate relief from the courts on plaintiffs' behalf. The issue whether public nuisance statutes are implicitly repealed by the comprehensive environmental legislation is not decided.

Counsel for Plantiffs
David L. Norvell Attorney General
Thomas L. Dunigan Assistant Attorney General
Thomas A. Donnelly Special Assistant Attorney General
Santa Fe, NM 87501

H. Anthony Ruckel
Sierra Club Legal Defense Fund
Rocky Mountain Office
508 Majestic Building
Denver, CO 80202

Counsel for Defendants
Summer G. Buell
Montgomery, Federici, Andrews, Hannahs & Morris
350 East Palace Avenue
Santa Fe, NM 87501

Russell Moore
Keleher & Mcleod
Public Service Building
414 Silver Avenue, S.W.
Albuquerque, NM 87101