AI Generated Opinion Summaries

This summary was computer-generated without any editorial revision. It is not official, has not been checked for accuracy, and is NOT citable.

Facts

• The case involves an appeal by Pat Toledo against the Albuquerque-Bernalillo County Air Quality Control Board's order, which addressed the Environmental Health Department Air Quality Program’s (EHD) motion to reverse and remand its own granting of Permit No. 1655-M1-RV1. The permit was initially granted to allow an increase in throughput from 3 million to 5 million gallons. The motion to reverse and remand was based on the acknowledgment that the notice requirements had not been followed (para 3).

Procedural History

• Air Quality Control Board, April 14, 2016: The Board ordered the reversal and remand of the Permit to EHD for re-noticing in compliance with all notice requirements and to decide on the issuance of the Permit after reviewing any public comments that may result (para 3).

Parties' Submissions

• Petitioner-Appellant (Toledo): Argued that the order allowing Smith’s Food & Drug Centers, Inc. to operate under the original permit during the remand process is objectionable because, without the permit modification, Smith’s lacks a valid permit to operate (paras 4-5).
• Respondent-Appellee (City of Albuquerque): Contended that following the order, EHD must decide anew whether to grant the Permit, supporting the view that the Board’s order is not final and appealable. Additionally, argued that Smith’s has a valid permit to operate the former Robert’s Oil gas station with a throughput of three million gallons per year (paras 5-6).
• Respondent-Appellee (Smith’s Food & Drug Centers, Inc.): Agreed with the City that the order is not final and that the administrative revision and issuance of Permit 1655-RV1, changing the ownership from Robert’s Oil to Smith’s, is not under appeal. Asserted that the appeal only concerns the permit modification for increased throughput (para 7).

Legal Issues

• Whether the Albuquerque-Bernalillo County Air Quality Control Board's order to reverse and remand the Permit for re-noticing constitutes a final, appealable order (para 2).
• Whether Smith’s Food & Drug Centers, Inc. has a valid permit to operate during the remand process (paras 4-7).

Disposition

• The appeal was dismissed for lack of a final order (para 9).

Reasons

• The Court, consisting of Judges James J. Wechsler, M. Monica Zamora, and J. Miles Hanisee, concluded that the order from the Board was not a final order suitable for appeal. This determination was based on the fact that, upon remand, the EHD would need to exercise its discretion in deciding whether to issue the Permit after proper notice and review of public comments, which is more than a ministerial action. The Court also addressed Toledo's concerns regarding Smith’s operation under the original permit, noting the City and Smith’s arguments that Smith’s has a valid permit for a throughput of three million gallons per year, which was not affected by the notice issue related to the permit modification for increased throughput. The Court's decision to dismiss was grounded in jurisdictional principles, emphasizing that an order remanding a case for further proceedings that require the exercise of discretion is not considered final for purposes of appeal (paras 2-8).