author: FRENCH, Judge.

text:
    Corlinda H. LUJAN, Ida M. Lujan, and Pablo Lujan, Plaintiffs-Appellants, v. ACEQUIA MESA DEL MEDIO, a New Mexico Community Ditch Association, et al., Defendants-Appellees.
    No. A-1-CA-35203
    Court of Appeals of New Mexico.
    Filing Date: October 25, 2018 Certiorari Granted, March 11, 2019, S-1-SC-37425
    Montgomery & Andrews, P.A., Randy S. Bartell, Santa Fe, NM, Ida M. Lujan, Santa Fe, NM, for Appellants.
    Humphrey & Odé, P.C., Mary E. Humphrey, El Prado, NM, Peter B. Shoenfeld, P.A., Santa Fe, NM, for Appellees.
   FRENCH, Judge.

{1} Corlinda Lujan appeals from the dismissal of her second amended complaint (Complaint) in which she sought declaratory relief, injunctive relief, and monetary damages. Her Complaint alleges, among other things, that she is entitled to the use of water appurtenant to 42.2 acres of land from the Rio Puerco de Chama based upon a decree issued by the district court in Rio Arriba County in 1962 (the Chacon Decree), and that the Acequia Mesa Del Medio (the Acequia) has consistently refused to distribute water according to the terms of the Chacon Decree. The district court dismissed Lujan's Complaint for lack of subject matter jurisdiction, concluding that the federal district court adjudicating all water rights of the Rio Chama stream system (the adjudication court), which includes the Rio Puerco de Chama, has exclusive jurisdiction over Plaintiff's claims. See State ex rel. State Engineer v. Aragon , United States District Court Cause No. 69cv07941 BB, 2011 WL 13290278 (mem. op. and order) (D.N.M. Jan. 31, 2011). We reverse, concluding that the district court has jurisdiction over the subject matter of Lujan's Complaint.

BACKGROUND

Procedural History Concerning the Chama General Stream System Adjudication

{2} In 1948, the Acequia, two other acequias, and members of the acequias initiated a water rights adjudication for the Rio Puerco in the district court in Rio Arriba County, (hereinafter the Chacon lawsuit). Chacon v. Chacon , Rio Arriba County Cause No. 4922. By 1961, Lujan came to own a tract of land that is irrigated by the water diverted by the Acequia from the Rio Puerco. The Chacon court issued the Chacon Decree one year later, which "determine[d] the rights of the respective claimants to divert and beneficially use the waters of the Rio Puerco de Chama and its tributaries[.]" The Chacon Decree provides the names of the claimants entitled to the use of the water who are members of the Acequia, the legal description of the land they own, and the number of acres of land they own, and thereby fixes and determines the rights to the water that is appurtenant to the described land. It lists Lujan as owning 42.2 acres of land as mapped by the hydrographic survey prepared by the State Engineer during the first phase of the adjudication (Map 19).

{3} Several years after the issuance of the Chacon Decree, the State Engineer moved to consolidate the ongoing Chacon lawsuit with another suit, State of New Mexico v. Ramon Aragon , Rio Arriba County Cause No. 8294, to determine the claims to all water rights of the Rio Chama stream system because the Rio Puerco is a tributary of the Rio Chama. Accordingly, Chacon was consolidated with Aragon and one year later, the Aragon court ordered that all of the preliminary, interlocutory, and final orders entered in Chacon be "confirmed and adopted as if originally entered herein[.]" The order specifically addresses the Chacon Decree, referring to it as "the Partial Final Decree in the Rio Puerco de Chama section[.]" The order states that the Chacon Decree is a final and appealable order that "defin[es] the rights of the [claimants] as against the State of New Mexico" and "as between and among all [claimants] inter se , in the various sub-files in this cause[.]" The Chacon Decree was renamed and entitled "Partial Final Judgment and Decree Relating to the Public Waters of the Rio Puerco de Chama." Aragon was then removed to federal court (adjudication court), where it continues as an active general stream system adjudication. See Aragon , United States District Court Cause No. 69cv7941 BB, 2011 WL 13290278 (mem. op. and order) (D.N.M. Jan. 31, 2011).

Background Pertaining To This Appeal

{4} In 2011 Lujan sued the Acequia, the mayordomo, and the officers and commissioners of the Acequia, alleging that they have not been distributing water for irrigation according to the terms of the Chacon Decree and that the method of distribution unfairly diminishes her right to water appurtenant to her 42.2 acres of land as described in the Chacon Decree. Lujan's original complaint sought: (1) a declaratory judgment recognizing her adjudicated water rights and requiring fair and equal water distribution to all Acequia members in accordance with the Chacon Decree; (2) declarations that the Acequia must comply with statutory provisions relating to acequias and ditches, NMSA 1978, Sections 73-2-1 to 73-2-68 (1851-52, as amended through 2006); and (3) an injunction preventing the Acequia and its officers and commissioners from otherwise harassing Lujan at Acequia meetings.

{5} The Acequia and other named defendants moved to dismiss the complaint for failure to join necessary parties, arguing that Lujan sought relief under the Declaratory Judgment Act, which requires that all persons "who have or claim any interest which would be affected by the declaration" shall be made parties. NMSA 1978, Section 44-6-12 (1975). They argued that the rights of a member to water diverted by the acequia are not proportional to the number of acres of land a member owns as listed in the Chacon Decree. They contended that Lujan asked the district court to enter a declaration that would change the rights of the acequia members to be proportional to the number of acres adjudicated to the tracts of land they own. According to the Acequia, the changes sought by Lujan would affect the rights of all members of the Acequia, and possibly adjacent acequias, as they have or may claim to have an interest that would be affected by such a declaration. The Acequia also argued that in order for Lujan to have water rights, she must be the owner of the land to which the water rights are appurtenant, and that other persons, namely Jose and Magdalena Martinez, now claim an interest in Lujan's original acreage.

{6} The district court granted the Acequia's motion (the June 2012 order) despite Lujan's opposition to it based upon its finding that Lujan's original complaint sought several declarations pursuant to the Declaratory Judgment Act. The court found that all acequia members, the commissioners of two adjacent acequias, and the Martinez's "have or claim an interest that would be affected by the declarations" sought in her complaint, and she "shall have the opportunity to amend her complaint to join" them. The court allowed her ninety days to amend her complaint and serve the parties joined.

{7} Lujan amended the original complaint to include the parties provided in the district court's order (first amended complaint). The first amended complaint also contained additional allegations. One of those allegations claimed that the Acequia held a special meeting to discuss the Acequia's response to the lawsuit, during which it modified its irrigation schedule "for the sole purpose of reducing [Lujan]'s historic irrigation time from [forty-two] hours to [twenty-four] hours," and assigning the eighteen-hour difference to the newly-named Martinez defendants.

{8} The Acequia and newly-named defendants (collectively, Defendants) moved to dismiss the first amended complaint for lack of subject matter jurisdiction under Rule 1-012(B)(1) NMRA. They argued that Lujan's first amended complaint hinged on two declarations that she sought from the court: (1) that she has water rights under the Chacon Decree to irrigate 42.2 acres of land, and (2) that her neighbors, the Martinezes, are not the owners of any of the 42.2 acres of water rights decreed in Lujan's name. Defendants asserted that "such declarations are within the exclusive jurisdiction of the general adjudication court for the Rio Chama stream system." They argued that Lujan claims to have irrigated and continues to irrigate land that is not, according to Map 19, shown as irrigated acreage, and that "irrigation water rights are appurtenant to the land on which they are used." They contended: "Resolution of [Lujan]'s complaint then is entirely dependent upon the determination of her claims to the use of water. [Lujan] has now asserted 'error' in the underlying hydrographic survey from the 1950's; by claiming that the hydrographic survey is in error, she has invoked the jurisdiction of the general adjudication court, which has exclusive jurisdiction to determine the specific place of use of the land to which [Lujan]'s claimed water rights are appurtenant." In other words, according to Defendants, Lujan sought a re-adjudication of all of the rights to the water of the Rio Puerco.

{9} In a separate motion, Defendants argued that Rule 1-019(A) NMRA required Lujan to join the State Engineer and other private parties, and that her failure to do so deprived the district court of jurisdiction because resolution of her claims requires a change in the location of the adjudicated water rights, which "may only be accomplished after application to and approval of the state engineer." Again, despite Lujan's opposition to both motions,-in which she argued that Defendants' motions are "predicated on their mischaracterization" of her claims as "seeking to re-adjudicate her water rights" and that her claims are "isolated in nature, involve interpretation of her pre-exiting legal rights, and do not concern any issue involved in the Rio Chama water rights adjudication"-the district court agreed with Defendants, finding that the State Engineer and other named persons were necessary parties. The district court concluded that Lujan "shall have sixty (60) days to amend her complaint to join the necessary parties[,]" and that her first amended complaint "shall be dismissed if [she] fail[s] to join the necessary parties" within the time allotted. Thereafter, Lujan named the State Engineer as a defendant in her Complaint, and again sought declaratory relief, injunctive relief, and monetary damages.

{10} Defendants moved to dismiss again, continuing to argue that the adjudication court has exclusive jurisdiction over Lujan's claims. The State Engineer also separately moved to dismiss for failure to state a claim upon which relief can be granted and to be dismissed as a party because the State Engineer has no interest in the suit. In response, Lujan maintained that Defendants mischaracterized her claims and that she was "not asking th[e c]ourt to adjudicate any water rights at all." Rather, she sought "declarations recognizing rights already determined in the [Chacon Decree] entered" over fifty years ago, and her "sole purpose in seeking such declarations is to ensure the Acequia's fair treatment of her in accordance with the law." In support of the State Engineer's motion to be dismissed from the suit, Lujan agreed that her "claims involve personal disputes between members of the Acequia and the legal recognition of water rights adjudicated in the [Chacon ] Decree," and she urged the district court to grant the State Engineer's motion.

{11} After a hearing, the district court granted both the State Engineer's motion, dismissing it as a defendant in the suit, and Defendants' motion to dismiss for lack of subject matter jurisdiction (October 2015 order) It found that resolving the issues surrounding Lujan's water rights would require interpretation of the Chacon Decree. The district court relied upon NMSA 1978, Section 72-4-19 (1907), believing that it provides that the adjudication of irrigation water rights calls for the district court to determine the specific tracts of land to which the irrigation water rights are appurtenant, and as it applies to Lujan's claims, requires dismissal for resolution in the adjudication court. Thus, the district court concluded: "Determination of the specific location of the lands with water rights should be in the adjudication court of the Rio Chama stream system" because "[t]he adjudication court has exclusive jurisdiction to make determinations regarding the elements of a water right, including the specific tract of land to which an irrigation water right is appurtenant." The court dismissed Lujan's Complaint "in all things."

{12} Lujan appeals all three orders: (1) the June 2012 order requiring Lujan to add parties necessary to the resolution of her Complaint under the Declaratory Judgment Act; (2) the February 2015 order requiring Lujan to join the State Engineer and three other specifically named persons as necessary parties under Rule 1-019 ; and (3) the October 2015 order dismissing Lujan's Complaint for lack of subject matter jurisdiction because the adjudication court has exclusive jurisdiction over Lujan's claims.

DISCUSSION

{13} First, we address Lujan's argument that the district court, not the adjudication court, has jurisdiction over the subject matter of her Complaint. We then turn to the orders providing leave to join additional parties.

I. The District Court Has Jurisdiction Over Lujan's Complaint

{14} We review questions of subject matter jurisdiction de novo. Best v. Marino , 2017-NMCA-073, ¶ 19, 404 P.3d 450, cert. denied , 2018-NMCERT-___ (No. S-1-SC-36586 (Aug. 31, 2017). State district courts are courts of general jurisdiction "having the power to hear all matters not excepted by the constitution and those matters conferred by law." Id. ¶ 20 (internal quotation marks and citation omitted). The jurisdiction of adjudication courts with regard to water law, however, is set out in Chapter 72 of our statutes. Adjudication courts have "exclusive jurisdiction to hear and determine all questions necessary for the adjudication of all water rights within the stream system involved[.]" NMSA 1978, § 72-4-17 (1965) (emphasis added). Once all of the rights to the use of the water of the entire stream system have been adjudicated among the claimants, the district court issues a decree. See § 72-4-19. The decree must declare "as to the water right adjudged to each party, the priority, amount, purpose, periods and place of use," and for water used for irrigation, the decree must specify the tracts of land to which the right is appurtenant. Id . Thus, once a stream system has been adjudicated or partially adjudicated and a decree issued, jurisdiction over claims related to the enforcement of the decree-as opposed to claims seeking an adjudication of the water rights to be decreed-properly rests with the district court. See City of Raton v. Vermejo Conservancy Dist. , 1984-NMSC-037, ¶ 1, 101 N.M. 95, 678 P.2d 1170 (demonstrating the state district court's exercise of its general jurisdiction over a claim brought by the City of Raton against a water conservancy district alleging improper withholding of water in excess of senior rights set forth in a decree issued decades prior to the suit, and seeking a declaration of water rights based upon that decree); El Paso & R. I. Ry. Co. v. Dist. Court of Fifth Judicial Dist. , 1931-NMSC-055, ¶ 21, 28, 36 N.M. 94, 8 P.2d 1064 (holding that a state district court cannot exercise its general jurisdiction over a claim brought by water rights claimants against the operator of a railroad seeking an injunction of the railroad's use of water where an ongoing general adjudication has already begun and no decree has been issued); Harkey v. Smith , 1926-NMSC-011, ¶ 3, 31 N.M. 521, 247 P. 550 (demonstrating the state district court's exercise of its general jurisdiction over a claim brought by a water rights claimant against another water rights claimant alleging diversion in excess of the amount declared in a decree issued years before).

{15} Lujan argues that the district court has, since entry of the Chacon decree in 1962, jurisdiction to interpret and declare the relative water rights of parties in a given ditch or acequia associated with an adjudicated source, such as the Rio Puerco de Chama section. She contends that, in other cases, district courts have interpreted water rights decrees and determined the current rights of parties to a lawsuit based upon such decrees. Defendants, however, characterize the case differently. They maintain that Lujan's complaint requires the district court to determine the validity of the hydrographic survey and apply it to specific provisions of the Chacon Decree. Specifically, Defendants claim that Lujan seeks a declaration that the Martinezes do not own any of the 42.2 acres of land that she claims she possesses according to the Chacon Decree and that resolving the land ownership issue forces the court to determine the place of use of the decreed water rights. Defendants believe that the determination Lujan seeks will result in either a correction to Map 19 so that it shows the specific tracts of land that Lujan claims as her place of use, or a correction to the list of owners in the Chacon Decree. Either way, Defendants argue, "New Mexico law is crystal clear that the adjudication court has exclusive jurisdiction to make such determinations."

{16} The outcome of this issue hinges on what exactly Lujan alleges in her Complaint. See Best , 2017-NMCA-073, ¶ 20, 404 P.3d 450 ("The only relevant inquiry in determining whether the [district] court has subject matter jurisdiction is to ask whether the kind of claim advanced falls within the general scope of authority conferred upon [it] by the constitution or statute." (alterations, omission, internal quotation marks, and citations omitted) ). Accordingly, we undertake a careful examination of Lujan's Complaint and conclude that she has not sought an adjudication of the water rights to the entire stream system. Rather, that claim was made decades ago by her predecessors-in-interest when they, several other water users, the Acequia, and two other nearby acequias initiated the Chacon lawsuit. Lujan's Complaint alleges facts pertaining to the ownership of the land identified in the Chacon Decree as belonging to her and to the distribution of water to acequia members by the Acequia. Generally, she claims that the Acequia has consistently failed to distribute water in accordance with the Chacon Decree. She also alleges that the Acequia called a special meeting to discuss its response to her original complaint, and in retaliation, changed its irrigation schedule in order to reduce Lujan's irrigation time. Unrelated to her particular claims involving the Martinezes, Lujan also alleges that the Acequia amended its bylaws after she filed her original complaint "purposefully and solely" to discriminate against her, applying its new bylaws and method of calculating irrigation hours in a way that negatively impacts only her right to the use of water, and not any other acequia member. She claims as well that the Acequia engages in other harassing conduct, including removing rocks, wooden structures, and headgates from her property, refusing to provide her with the irrigation schedule until after her irrigation date has passed, and refusing to allow her to speak at Acequia meetings.

{17} Essentially, Lujan seeks to enjoin the conduct of the Acequia that has resulted in her receiving less than the amount of water allotted to her in the Chacon Decree, that favors some Acequia members over others, and that she alleges constitutes harassment and discrimination. Lujan also sets forth numerous grounds potentially meriting declaratory relief. She requests a declaration from the district court that she has water rights appurtenant to 42.2 acres of land as declared in the Chacon Decree and that the Acequia must divert and distribute water according to the terms of the Chacon Decree. The Complaint also requests several declarations concerning the internal operations of the Acequia, including its holding of biennial meetings as required by Section 73-2-12, its imposition of assessments upon Acequia members based upon their adjudicated acreage, and its issuing of bonds according to Section 73-2-12. She also seeks damages based upon the Acequia's interference with her water rights and her inability to irrigate her property.

{18} Based on the foregoing claims and the relief sought, we conclude that the gravamen of Lujan's Complaint concerns the enforcement of an existing and valid court decree. It does not, as the Acequia argues, call for a "re-adjudication" of Lujan's water rights of a nature that affects all users of the Acequia or the Rio Puerco stream system itself. See United States v. Bluewater-Toltec Irrigation Dist. , 580 F.Supp. 1434, 1438-41 (D.N.M. 1984) (rejecting the defendant's attempt to recast the plaintiff's complaint in order to achieve removal to federal court, and describing the defendant's characterization of the complaint as being completely in error for having oversimplified the complaint and ignoring the language of the complaint). Rather, the disputes Lujan's Complaint seeks to resolve involve the conduct of private parties governed by a valid court decree and other statutory provisions applicable to acequias and ditch associations. We see nothing within Lujan's Complaint that seeks an adjudication or re-adjudication of water rights that would affect the rights of all claimants to the entire stream system of which the Rio Puerco is a part. See La Madera Cmty. Ditch Ass'n v. Sandia Peak Ski Co. , 1995-NMCA-025, ¶ 7, 119 N.M. 591, 893 P.2d 487 (explaining that the plaintiff's cause of action was not "transformed from one based on trespass ... to one based on an adjudication of water rights against all other appropriators of the water system[ ]" simply because the defendant disputed the validity of the plaintiff's water rights).

{19} Thus, because Lujan has initiated litigation within a group of users governed as an acequia and under an existing decree, and is not seeking to adjudicate or re-adjudicate water rights of a broader stream system, Lujan's lawsuit falls within the general jurisdiction of the district court, not the adjudication court. Our evaluation in this regard is buttressed by the State Engineer's motion to be dismissed as a party on the basis that it has no interest in the litigation or the outcome of Lujan's claims. In a hearing on the motion, the State Engineer's office explained that acequias, under Chapter 73, "can govern their water rights the way they want to[,]" which is "something the [c]ourt can determine without the presence of the State Engineer." The State Engineer is not involved in disputes concerning the water to be distributed to acequia members by the acequia; it is only concerned with the water that is distributed to the acequia at its headgate. Beyond that, the acequia conducts its business according to Chapter 73. We agree with the State Engineer's characterization of the nature of the dispute in this case.

II. Orders to Join Additional Parties

{20} Lujan also appeals the June 2012 and February 2015 orders, each of which concluded that several unnamed parties were necessary to the litigation and required joinder in order for the case to proceed. Each order permitted Lujan time to amend her complaint to join the parties or else, as expressly stated in the February 2015 order, Lujan's complaint would be dismissed. She argues that the district court abused its discretion in ordering joinder of these parties because her lawsuit "will not prejudice any legal rights" of the parties named in the orders, as "they will not 'gain or lose' anything through this suit other than [the] protection of [their] already established legal rights[ ]" set forth in the Chacon Decree.

{21} The district court's orders, including its threat of dismissal, were based on the district court's misinterpretation of the nature of the dispute set out in Lujan's initial complaint, specifically, that Lujan sought enforcement of the Chacon Decree, rather than its re-adjudication. As this misinterpretation formed the foundation of its decision that the additional parties were necessary to the litigation of Plaintiff's claims, we conclude that the district court abused its discretion in ordering joinder of the parties. See Harrison v. Bd. of Regents of Univ. of N.M. , 2013-NMCA-105, ¶ 14, 311 P.3d 1236 (explaining that a misapprehension of the law constitutes an abuse of discretion); Benz v. Town Ctr. Land, LLC , 2013-NMCA-111, ¶ 11, 314 P.3d 688 ("An abuse of discretion occurs when a ruling is clearly contrary to the logical conclusions demanded by the facts and circumstances of the case." (internal quotation marks and citation omitted) ).

{22} We therefore remand this case to the district court with instructions to reconsider the necessity of the joined parties based upon Lujan's causes of action and the relief she seeks, including those made pursuant to the Declaratory Judgment Act, her other statutory state law claims, and the requirements of Rule 1-019. On remand, the parties, including Lujan, shall be permitted to file such motions necessary to invoke rulings from the district court, establishing the proper parties to the litigation in light of our opinion.

CONCLUSION

{23} We reverse the district court's orders dismissing the suit for lack of subject matter jurisdiction and ordering the joinder of additional parties, and remand for proceedings consistent with this opinion.

{24} IT IS SO ORDERED.

WE CONCUR:

J. MILES HANISEE, Judge

JULIE J. VARGAS, Judge


source: Caselaw Access Project

author: VARGAS, Judge.

license: Public Domain

text:
    State of New Mexico DEPARTMENT OF GAME AND FISH, Appellee-Petitioner, v. Timothy L. RAWLINGS, Appellant-Respondent.
    No. A-1-CA-36131
    Court of Appeals of New Mexico.
    Filing Date: December 7, 2018
    Hector H. Balderas, Attorney General, Regina Ryanczak, Assistant Attorney General, Santa Fe, NM, for Appellee
    The Simons Firm, LLP, Quinn Scott Simons, Santa Fe, NM, for Appellant
   VARGAS, Judge.

{1} The New Mexico Department of Game and Fish (Game and Fish) appeals from the district court's order reversing Game and Fish's decision to deny Respondent's application for a New Mexico outfitter's license. Game and Fish raises four issues on appeal. First, Game and Fish argues that its hearing officer's decision to deny Respondent's application for an outfitter's license was supported by substantial evidence in accordance with NMSA 1978, Section 17-2A-3(C)(2) (2001) and 19.30.8.9(A)(6) NMAC. Second, Game and Fish claims that the district court acted arbitrarily and capriciously when it reversed Game and Fish's decision. Third, it contends that the district court erred when it applied Section 17-2A-3(C)(3), rather than Section 17-2A-3(C)(2) to the evaluation of Respondent's outfitter application. Finally, Game and Fish claims that the district court erred when it concluded that Game and Fish violated the Interstate Wildlife Violator Compact (the Compact), NMSA 1978, Section 11-16-1 to -12 (2001). Because we conclude that the actions of the Arizona Commission on which Game and Fish relied to deny Respondent a license are akin to a suspension under our relevant statute and regulations and the Legislature intended for Game and Fish to treat the Respondent's Arizona license "revocation" as if it had occurred in Arizona, pursuant to the Compact, we affirm.

BACKGROUND

{2} After working as a licensed hunting guide in New Mexico for three years, Respondent submitted an application for a New Mexico outfitter's license to Game and Fish. Game and Fish denied his application pursuant to Section 17-2A-3(C)(2), which precludes an individual from working as a registered outfitter "if the person has had a guide or outfitter license, registration, permit or certificate revoked in another state." In support of its denial, Game and Fish pointed to a February 21, 2003, action by the Arizona Game and Fish Commission, which unanimously concluded:

That the license and/or license privileges of [Respondent] to hunt, fish, trap and guide in the State of Arizona be revoked and he be denied another for a period of five years; that the current licenses be suspended as of the date of this hearing and that they be revoked as of the date the order in this case is signed by the director; [and] that he be required to complete the hunter education course and provide proof to the Department's law enforcement branch before applying for any other licenses to hunt in the State [of Arizona.]

Respondent requested an administrative review of Game and Fish's decision, pursuant to Section 17-2A-3(S) and the Uniform Licensing Act (ULA), NMSA 1978, Section 61-1-1 to -34 (1957, as amended through 2016). Following an administrative hearing, the Game and Fish hearing officer entered an order upholding Game and Fish's denial. Respondent appealed to the district court, pursuant to NMSA 1978, Section 39-3-1.1 (1999) and Rule 1-074 NMRA.

{3} The district court reversed the decision of Game and Fish, finding that Game and Fish acted arbitrarily and capriciously, applied an inapplicable subsection of Section 17-2A-3, and violated the Compact. Game and Fish petitioned this Court for a writ of certiorari, which we granted.

DISCUSSION

{4} Initially, we note that while Game and Fish raised issues of substantial evidence and abuse of discretion by the district court, the only argument developed in its brief involves the district court's interpretation of the relevant statutes and regulations. As such, this case requires us to interpret provisions of our statutes governing our statewide system for hunting activities set out in NMSA 1978, Section 17-2A-1 to -3 (1996, as amended through 2001) and the regulations promulgated pursuant to those statutes, in conjunction with the Compact adopted by our Legislature. Specifically, we must decide whether the action taken by the Arizona Commission constitutes a revocation of Respondent's guide or outfitter license such that he is precluded from "work[ing] as a registered hunting guide or outfitter in New Mexico," pursuant to Section 17-2A-3(C)(2). As all of the arguments on appeal raised by Game and Fish are related, we address them together.

Standard of Review

{5} This Court "conduct[s] the same review of an administrative order as the district court sitting in its appellate capacity[.]" Rio Grande Chapter of Sierra Club v. N.M. Mining Comm'n , 2003-NMSC-005, ¶ 16, 133 N.M. 97, 61 P.3d 806. We will not disturb a decision of Game and Fish unless it acted in a manner that is: "[ (1) ] arbitrary, capricious, or an abuse of discretion; [ (2) ] not supported by substantial evidence in the record; or [ (3) ] otherwise not in accordance with law." Id. ¶ 17 ; see Rule 1-074. "A ruling by an administrative agency is arbitrary and capricious if it is unreasonable or without a rational basis, when viewed in light of the whole record." Rio Grande Chapter of Sierra Club , 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806. "A ruling that is not in accordance with law should be reversed if the agency unreasonably or unlawfully misinterprets or misapplies the law." N.M. Mining Ass'n v. N.M. Water Quality Control Comm'n , 2007-NMCA-010, ¶ 11, 141 N.M. 41, 150 P.3d 991 (internal quotation marks and citation omitted). In considering whether Game and Fish's actions were in accordance with the law, we note that interpretation of a statute is a matter of law that this Court reviews de novo, and we are not bound by Game and Fish's interpretation of the relevant statutes. See id. (citing Rio Grande Chapter of the Sierra Club , 2003-NMSC-005, ¶ 17, 133 N.M. 97, 61 P.3d 806 ).

Statutory Interpretation

{6} When interpreting a statute, a court's primary goal is to "facilitate and promote the [L]egislature's purpose." United Rentals Nw., Inc. v. Yearout Mech., Inc. , 2010-NMSC-030, ¶ 17, 148 N.M. 426, 237 P.3d 728 (omission, internal quotation marks, and citation omitted). In discerning that purpose, "we look first to the plain language of the statute, giving the words their ordinary meaning, unless the Legislature indicates a different one was intended." Flores v. Herrera , 2016-NMSC-033, ¶ 8, 384 P.3d 1070 (internal quotation marks and citation omitted). While the plain meaning rule provides that "statutes are to be given effect as written and, where they are free from ambiguity, there is no room for construction[,]" this rule must be applied with caution, as "a statute, apparently clear and unambiguous on its face, may for one reason or another give rise to legitimate (i.e., nonfrivolous) differences of opinion concerning the statute's meaning." State ex rel. Helman v. Gallegos , 1994-NMSC-023, ¶¶ 2, 23, 117 N.M. 346, 871 P.2d 1352 (internal quotation marks and citation omitted). Consequently, courts will reject the literal language of the statute if doing so is necessary to "conform to the obvious intent of the [L]egislature, or to prevent its being absurd." Id. ¶ 3 (internal quotation marks and citation omitted); see Baker v. Hedstrom , 2013-NMSC-043, ¶ 15, 309 P.3d 1047 (indicating that the statute must be interpreted in the context of the statute as a whole with an eye toward its purposes and consequences). We consider all parts of the statute together, "read[ing] the statute in its entirety and constru[ing] each part in connection with every other part to produce a harmonious whole." Key v. Chrysler Motors Corp. , 1996-NMSC-038, ¶ 14, 121 N.M. 764, 918 P.2d 350. Furthermore, a statute "whose construction is in question, [is] to be read in connection with other statutes concerning the same subject matter." State ex rel. Children, Youth & Families Dep't v. Djamila B. , 2014-NMCA-045, ¶ 10, 322 P.3d 444 (alteration, internal quotation marks, and citation omitted), aff'd on other grounds sub nom , In re Mahdjid B. , 2015-NMSC-003, 342 P.3d 698. Finally, we interpret statutes "to avoid rendering the Legislature's language superfluous." Baker , 2013-NMSC-043, ¶ 24, 309 P.3d 1047.

The District Court Properly Applied Section 17-2A-3(C)(3) to Respondent's Application

{7} It is unlawful in New Mexico for a person to work as an unlicensed hunting guide or outfitter. Section 17-2A-3(A). A person who has previously "had a guide or outfitter license, registration, permit or certificate revoked in another state," or suspended in another state without reinstatement, will not "be allowed to work as a registered hunting guide or outfitter in New Mexico." Section 17-2A-3(C)(2), (3). The decision entered by the Arizona Commission "revokes" Respondent's license, precludes him from obtaining another for five years, and requires him to complete a course before he can apply for another license to hunt in Arizona. Respondent was subsequently issued a new license by the Arizona Commission. To determine whether Respondent is precluded from working as a registered hunting guide or outfitter in New Mexico, we are required to consider whether the Arizona Commission's decision constitutes a "revocation" as the term is used in Section 17-2A-3(C)(2).

{8} We initially consider the meaning of the term "revoke" and its counterpart, "suspend" as they are used in Section 17-2A-3(C), (D). Neither Section 17-2A-3, specifically, nor Chapter 17, generally, provide definitions for the terms "revocation" or "suspension." Instead, the parties direct us to the definitions of "revoke" and "suspend" in the ULA, and in the regulations promulgated by Game and Fish as part of its hunting and fishing regulations. The Uniform Licensing Act provides:

D. "revoke a license" means to prohibit the conduct authorized by the license;
E. "suspend a license" means to prohibit, for a stated period of time, the conduct authorized by the license. "Suspend a license" also means to allow , for a stated period of time, the conduct authorized by the license, subject to conditions that are reasonably related to the grounds for suspension[.]

Section 61-1-2(D), (E) (emphases added). The hunting and fishing regulations promulgated by Game and Fish define "[r]evocation" and "[s]uspension" of privileges slightly differently:

H. "Revocation" means when a person's hunting, fishing, trapping, guiding and outfitting privileges, or other privileges or authorities granted by an agreement, license or permit issued by the department, are taken away by the commission after notice and opportunity for a hearing.
I. "Suspension" means when a person's hunting, fishing, trapping, guiding and outfitting privileges, or other privileges or authorities granted by an agreement, license or permit issued by the department, are taken away by the commission, after notice and opportunity for a hearing, until the person comes back into compliance .

19.31.2.7(H), (I) NMAC (emphases added).

{9} The language of the decision by the Arizona Commission regarding the Respondent's Arizona license does not fit easily into the definitions promulgated by the Legislature contained in the ULA or the definitions promulgated by Game and Fish contained in its regulations. While using the term "revoked," the decision of the Arizona Commission clearly contemplates the possibility of future hunting, fishing, trapping and guide privileges for the Respondent, ordering that "he be denied another [license] for a period of five years ... [and] that he be required to complete the hunter education course ... before applying for any other licenses[.]".

{10} Under the ULA and Game and Fish regulations, however, the term "revoke" denotes a finality that cannot be overcome under any circumstances. In the instance of revocation, the conduct permitted by a license is "prohibited" under the ULA, see § 61-1-2(D), and "taken away" by the regulations. See 19.31.2.7(H) NMAC. Nowhere in the statute or regulation defining "revoke" is the reinstatement of those privileges contemplated. Instead, it is the ULA and Game and Fish regulations defining "suspended" that contemplate the reinstatement of privileges after a stated time or upon compliance with certain conditions. See § 61-1-2(E); 19.31.2.7(I) NMAC. Notwithstanding its use of the term "revoked," the Arizona Commission's indication that Respondent may be permitted to recover those privileges after a stated period of time or upon compliance with certain conditions fits more appropriately into the definition of a "suspension" under the ULA and the regulations.

{11} Game and Fish contends that the Arizona Commission's use of the term "revoked" is dispositive, arguing that had the Arizona Commission intended to "suspend" Respondent, it would have set conditions he must satisfy to lift the suspension. Game and Fish, however, ignores two critical points. First, at least one of the definitions of "suspension" on which it encourages us to rely provides that suspension "means to prohibit, for a stated period of time," which is precisely what happened in this case. The Arizona Commission prohibited Respondent from obtaining a license which would permit him to hunt, fish, trap and guide for five years and subsequently restored his privileges by granting him a new license. See § 61-1-2(E). Second, Game and Fish ignores that the Arizona Commission placed conditions on his ability to engage in these activities in the future, requiring that he complete a hunter education course and provide proof before a new license would be issued to him.

{12} Game and Fish further argues that Respondent's claim "that his revocation was really a suspension.... results in a skewed meaning of the statute in its entirety and does not give effect to the objective and purpose of the statute." We disagree. In addition to implementing statutes governing our statewide system for hunting activities, see Section 17-2A-1 to -3, our Legislature adopted legislation to address the manner in which New Mexico will recognize and address wildlife violations that occur in other states, including suspensions and revocations of hunting, fishing, trapping and guiding privileges. In 2001 New Mexico adopted the Compact. See §§ 11-16-1 to -12. The Compact is an agreement between participating states to, among other things, (1) promote compliance with the statutes, laws, ordinances, and administrative rules relating to the management of wildlife resources in participating states; (2) recognize suspensions of wildlife license privileges by and report convictions to participating states; (3) cooperate in the enforcement of compliance with the terms of citations issued by one participating state to residents of another participating state; and (4) assist court systems in the efficient disposition of wildlife violations. Section 11-16-2(B).

{13} The Compact requires that "[a] participating state shall recognize the suspension of license privileges of a person by another participating state as though the violation resulting in the suspension ... had occurred in the home state; and ... could have been the basis of the suspension of license privileges in the home state." Section 11-16-6(A). The Compact does not differentiate between a suspension and a revocation and instead equates them, providing, " 'suspension' means a revocation, denial or withdrawal of license privileges, including the privilege to apply for, purchase or exercise the benefits conferred by a license."

Section 11-16-3(M) (emphasis added). Rather than distinguish between a "suspension" and "revocation," the Compact adopts a policy intended to "recognize the suspension of wildlife license privileges of a person whose license privileges have been suspended by another participating state and treat the suspension as if it had occurred in the home state [.]" Section 11-16-2(B)(2) (emphasis added).

{14} In this case, notwithstanding that the decision of the Arizona Commission stated that it "revoked" Respondent's privileges, it subsequently allowed him to obtain a new license after the proscribed time had passed and he complied with the requirements set out in the decision. The Compact requires us to "recognize the suspension ... as though the violation ... had occurred in the home state[,]" Section 11-16-6(A), and the Arizona Commission's decision clearly did not intend to impose the finality that is implied by the definitions of "revoke" set out in the ULA and Game and Fish regulations. See § 61-1-2(D); 19.31.2.7(H) NMAC. We conclude that the decision of the Arizona Commission did not constitute a "revocation" of Respondent's Arizona permit so as to prevent him from obtaining a license to work as a registered guide or outfitter, pursuant to Section 17-2A-3(C). The district court properly applied Section 17-2A-3(C)(3) to its evaluation of Respondent's application. While Game and Fish argues that the district court's failure to conclude that Respondent's Arizona license was revoked, as the term is used in Section 17-2A-3(C)(2), renders that section surplusage and leads to an absurd result, we disagree. Both the ULA and Game and Fish's regulations differentiate between "revocation," which has a permanent quality, and "suspension," which is either time-limited or conditional upon compliance with requirements established by Game and Fish. Read together with the Compact, we are persuaded that an applicant who has been permanently prohibited and his right to obtain a license permanently taken away is subject to the provisions of Section 17-2A-3(C)(2), while an applicant whose license has been taken away for a specified period of time or until the applicant comes into compliance with the requirements established by Game and Fish is subject to the provisions of Section 17-2A-3(C)(3). See Djamila B. , 2014-NMCA-045, ¶ 10, 322 P.3d 444 (stating that "statutes, whose construction is in question [should] be read in connection with other statutes concerning the same subject matter" (internal quotation marks and citation omitted) ); see also Baker , 2013-NMSC-043, ¶ 24, 309 P.3d 1047 (stating statutes should be read "to avoid rendering the Legislature's language superfluous"). Indeed, our interpretation comports with the implicit intent of the Legislature in enacting Section 17-2A-3(C)(2), (3) and in adopting the Compact, which clearly contemplates denying licenses to individuals who have been prohibited from holding them in other states. See United Rentals Nw., Inc. , 2010-NMSC-030, ¶ 17, 148 N.M. 426, 237 P.3d 728 (stating that the primary goal of statutory interpretation is "to facilitate and promote the [L]egislature's purpose"(omission, internal quotation marks, and citation omitted) ). Our interpretation imputes meaning to both subsections of Section 17-2A-3(C), complies with the objective of the Compact to "recognize the suspension of wildlife license privileges of a person whose privileges have been suspended by another participating state and treat the suspension as if it had occurred in the home state," and avoids reaching an absurd result. Section 11-16-2(B)(2); see Helman , 1994-NMSC-023, ¶ 3, 117 N.M. 346, 871 P.2d 1352 (stating that courts should interpret statutes to conform to the obvious intent of the Legislature and avoid an interpretation that renders the statute absurd).

{15} As the hearing officer's decision was not in accordance with the law when it denied Respondent's application, relying on Section 17-2A-3(C)(3), we find no error on the part of the district court.

CONCLUSION

{16} The decision of the district court is affirmed.

{17} IT IS SO ORDERED.

WE CONCUR:

HENRY M. BOHNHOFF, Judge

EMIL J. KIEHNE, Judge


author: OPINION BY KEITH RAPP, JUDGE:

text:
    CITY OF BROKEN ARROW, Own Risk #14157 Petitioner, v. Gary R. SNYDER Jr., and the Workers' Compensation Court of Existing Claims, Respondents.
    Case No. 116,715
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED August 8, 2018 Mandate Issued: March 13, 2019
    Leah P. Keele, Brandy L. Inman, LATHAM, WAGNER, STEELE & LEHMAN, Tulsa, Oklahoma, for Petitioner
    Jeffrey M. Cooper, Oklahoma City, Oklahoma and Gary Homsey, Oklahoma City, Oklahoma, for Respondent
   OPINION BY KEITH RAPP, JUDGE:

¶1 The City of Broken Arrow, Oklahoma (City), appeals an Order of the Workers' Compensation Court of Existing Claims awarding compensation and medical treatment to its employee, Gary R. Snyder Jr. (Snyder).

BACKGROUND

¶2 Snyder is employed by City as a fireman. He contracted thyroid cancer and claims that the cancer was caused by his exposures to sundry cancer causing substances while fighting fires and by diesel from fire vehicles. His date of awareness is March 8, 2010.

¶3 The trial court found that Snyder sustained a work-related injury and awarded benefits. The question in this appeal is whether that ruling is supported by competent evidence.

¶4 Snyder testified about his work as a fireman and exposures to sundry substances. He did not relate any specific instances of exposure, but spoke of how he was exposed as a matter of course in the types of fires he engaged. He acknowledged that he was provided and wore protective clothing and apparatuses when engaging fires. He had a prior employment, but passed the physical to become a fireman. He also had a second job where he was exposed to hazardous materials.

¶5 The parties submitted medical reports. The trial court appointed an independent medical examiner (IME).

¶6 Snyder's physician's report recited the work history and the fact of thyroid cancer. The physician concluded that the major cause of the thyroid cancer was the exposures to sundry listed hazardous substances at work. Snyder also presented study documents relating to firemen and exposures to substances and cancer and outlining the types of substances to which they are exposed. These documents do not mention thyroid cancer and these exposures.

¶7 City's physician's report also recited the employment history. This physician noted the statutory presumption and continued:

However, the literature as it relates to thyroid cancers would overcome this presumption. There is an extensive report .... Under thyroid cancers are reviewed all the studies related to thyroid cancer and firefighting. According to this study, "There is clearly therefore no consistent evidence to suggest any occupational relationship between firefighting and thyroid cancer."

¶8 Drawing on the referenced studies, the physician concluded that the employment as a fireman was not the major cause of the thyroid cancer. He further stated that the major cause is unknown "which is the usual scenario."

¶9 The IME's report recited Snyder's medical and employment histories. The IME stated that there is no causal relationship between the development of the thyroid cancer and employment. The IME further stated that he had researched the literature "and found nothing that substantiates a causal link between firefighting and thyroid cancer." He continued:

Most occupationally-related thyroid cancers are linked to high levels or prolonged periods of exposure to ionizing radiation, which is not applicable to this case. There is an ongoing study of firefighters and cancer, supervised by National Institute of Occupational Safety and Health (NIOSH) which is ongoing for several more years which may provide more information on this issue in the future.

¶10 The three-judge panel had reversed the trial court's original use of a statutory presumption. On remand from the three-judge panel, the trial court entered an Order determining that Snyder sustained a work-related injury, thyroid cancer, and ordering medical treatment.

¶11 The trial court referred to the study mentioned by City's physician. The trial court cited the study's finding that firefighters had a slightly elevated risk of contracting thyroid cancer. Accordingly, the trial court ruled that the firefighter occupation put its personnel at a greater risk of thyroid cancer than the public in general. The trial court then determined that a causal relationship existed.

¶12 Next, the trial court referred to the IME's statement about "most thyroid cancers" being linked to ionizing radiation. The trial court reasoned that "most" does not exclude exceptions, so exposures from work might be a cause for a firefighter's thyroid cancer. The trial court departed from the IME for that reason.

¶13 City now appeals the order.

STANDARD OF REVIEW

¶14 Given the date of injury, this matter comes within the "any competent evidence" standard of review. 85 O.S. Supp. 1997, § 3.6(C) ; Parks v. Norman Mun. Hosp. , 1984 OK 53, 684 P.2d 548. The appellate court's responsibility is simply to canvass the facts, not to weigh conflicting proof in order to determine where the preponderance lies, but only for the purpose of ascertaining whether the decision is supported by competent evidence. Id .

ANALYSIS AND REVIEW

¶15 Here, all of the medical evidence was received without any objection as to competency, but overruled an objection to probative value. The issue in this appeal is whether the evidence is legally sufficient to support the result of the appealed Order.

¶16 Snyder testified to exposures of hazardous materials, although without identification of specific times or incidents. His physician unequivocally related these exposures to the thyroid cancer. City presented a list of reasons why this physician's testimony should not be considered. All of the City's reasons relate to the weight and credibility of the report. Pursuant to the standard of review, this Court does not weigh the evidence.

¶17 Although the primary focus of the City's physician's report is to refute the statutory presumption, both he and the IME conclude that Snyder's exposures are not the major cause of the thyroid cancer. Neither physician disputed the existence of the cancer or the facts of exposures to hazardous substances.

¶18 The City's physician referenced studies. He quoted a study finding that there is "no consistent evidence to suggest an occupational relationship between firefighting and thyroid cancer." He concluded that the employment was not the major cause of the thyroid cancer and that the major cause was unknown.

¶19 The trial court concluded that the study did not exclude Snyder's exposures as the cause. This Court notes a logical inconsistency. If, as the physician reports, the major cause is "unknown" then it follows that: (1) he could not exclude any specific causation where the evidence is inconsistent as to causation; and, (2) he would have to state that he does not know what caused the thyroid cancer.

¶20 The IME based his opinion on his research of medical and scientific literature, which did not disclose any relationship between thyroid cancer and the occupational exposures to hazardous materials as in this case. This research led him to the conclusion that "most" occupationally related thyroid cancers resulted from exposure to ionizing radiation. It is undisputed that Snyder was not exposed to ionizing radiation.

¶21 The trial court stated that "most" does not exclude all causal relationships based upon exposures to hazardous materials. In other words, the weight that the trial court chose to afford to the IME's report was influenced by the IME's qualified opinion.

¶22 All three reports are competent evidence in the sense that they are admissible and no objection was made by either party. Therefore, the reports are in evidence and, as a result, there is a conflict of evidence in the medical reports. The trial court decides what weight shall be given to these three reports.

¶23 Where the evidence is in conflict and there is any competent evidence reasonably tending to support the finding of the Workers' Compensation Court, an order or award based on the competent evidence will not be reversed. Mrs. Baird's Bakery v. Cox , 2005 OK 28, ¶ 2, 112 P.3d 1168, 1170. "Factual findings made in the WCC decision under review are conclusive and binding, unless they lack support in competent evidence. Only if a relevant factual finding lacks support by competent evidence may a WCC decision based thereon be deemed erroneous as a matter of law and, thus, subject to vacation by an appellate court." Id .

¶24 Clearly, the trial court relied on Snyder's evidence. The trial court had a rational basis to afford less or no weight to the other two medical reports. Therefore, the Order of the trial court is supported by competent evidence and is sustained.

SUMMARY AND CONCLUSION

¶25 Snyder's claim for workers' compensation benefits for thyroid cancer is based upon his exposure to hazardous materials while employed as a fireman for City. The facts of exposure and existence of thyroid cancer are not disputed. Snyder supported his claim with a medical report.

¶26 The City and the IME concluded that exposures were not the cause of the thyroid cancer. The trial court examined the premises for these reports and clearly decided not to afford them weight.

¶27 The date of injury causes this case to be reviewed under the "any competent evidence" standard. The weight to be given evidence is a function of the trial court, not the appellate court under this standard.

¶28 After review of the record, this Court finds that the Order of the trial court is supported by competent evidence. Therefore, the Order is sustained.

¶29 SUSTAINED .

BARNES, P.J., and GOODMAN, J., concur.

      The Workers' Compensation Court Three-Judge Panel ruled that the statutory presumption of 11 O.S.2011, § 49-110(A) was rebutted. That ruling is final for this case.

      Due to the ruling of the three-judge panel, the trial court's conclusion is unaided by the statutory presumption.

      "[I]n the area of workers' compensation an objection to the 'competency' of a medical report is directed to the exhibit's admissibility on hearsay or other legal grounds. Alternatively, an objection to an exhibit's 'probative value' is used to challenge the evidence for insufficiency as legal proof of (a) medical findings with respect to the presence or absence of compensable disability, or of (b) the compensable impairment's rating. In other words, when evidence is objected to as lacking in probative value, the issue is whether it is probative of the elements it seeks to establish once admitted." Lacy v. Schlumberger Well Service , 1992 OK 54, ¶ 6, 839 P.2d 157, 159-60. "[T]he term 'competent' as used in the Parks test refers to the legal sufficiency, on any ground of evidence which supports an order of the Workers' Compensation Court." Lacy, 1992 OK 54 ¶ 7, 839 P.2d at 160.


text:
    Lisa MCCLAIN, Individually and as Special Administrator of the Estate of B.L.M., a Minor, Plaintiff/Appellant, v. BRAINERD CHEMICAL COMPANY, INC., an Oklahoma Corporation, Defendant/Appellee, and Psycho Path, LLC, an Oklahoma Limited Liability Company; Victor R. Marquez and Suzette Marquez, Individually; and West Texas Drum Company, Ltd, II, a Texas Limited Partnership, Defendants, and Psycho Path, LLC, an Oklahoma Limited Liability Company; Victor R. Marquez and Suzette Marquez, Individually; and Brainerd Chemical Company, Inc., Third-Party Plaintiffs, v. Robert Thomas, an Individual, Third-Party Defendant.
    Case No. 117,356
    Court of Civil Appeals of Oklahoma, Division No. 4.
    FILED JANUARY 2, 2019 Rehearing Denied: February 13, 2019 Mandate Issued: March 13, 2019
    Frank W. Fraiser, FRAISER, FRAISER & HICKMAN, LLP, Tulsa, Oklahoma, for Plaintiff/Appellant
    James K. Secrest II, Jennifer L. Struble, SECREST, HILL, BUTLER & SECREST, Tulsa, Oklahoma, for Defendant/Appellee/Third-Party Plaintiff Brainerd Chemical Company, Inc.
   OPINION BY DEBORAH B. BARNES, PRESIDING JUDGE:

¶ 1 Plaintiff/Appellant Lisa McClain, individually and as Special Administrator of the Estate of B.L.M., a minor, appeals from the trial court's order granting the motion for summary judgment of Defendant/Appellee Brainerd Chemical Company, Inc. The order states that "all claims presented against [Brainerd] by [Plaintiff] are hereby dismissed, with prejudice," and the trial court certified its order as a final order "pursuant to 12 O.S. § 994(a), [as] there is no reason for delay[.]"

¶ 2 For purposes of summary judgment, the parties agree B.L.M. was employed by Defendant/Third-Party Plaintiff Psycho Path, LLC to work at its haunted house. They further agree that B.L.M. was fatally injured as a result of using a torch to open an empty barrel that had previously contained the chemical toluene. Plaintiff admits B.L.M. "was not killed by using a torch on a barrel full of toluene, but on an empty drum" - i.e., a drum containing "residual toluene [that] went up in flames and killed [B.L.M.]" Plaintiff asserts "[i]t was foreseeable to [Brainerd]" - which is in the business of selling drums full of toluene - that an "empty drum would be resold and [Brainerd] did not include proper warnings about the use of resold drums" containing residual amounts of toluene. Plaintiff asserts "[t]he drum put into commerce by [Brainerd] was defective and unreasonably dangerous and caused the injuries to [B.L.M.]," and Plaintiff has also asserted a theory of ordinary negligence against Brainerd based on this failure to warn as to the dangers of residual toluene.

¶ 3 From the trial court's order granting summary judgment in favor of Brainerd, Plaintiff appeals.

STANDARD OF REVIEW

¶ 4 "This appeal stems from a grant of summary judgment, which calls for de novo review." Wood v. Mercedes-Benz of Okla. City , 2014 OK 68, ¶ 4, 336 P.3d 457 (citation omitted). Under the de novo standard, this Court is afforded "plenary, independent, and non-deferential authority to examine the issues presented." Harmon v. Cradduck , 2012 OK 80, ¶ 10, 286 P.3d 643 (citation omitted). Summary judgment is appropriate "[i]f it appears to the court that there is no substantial controversy as to the material facts and that one of the parties is entitled to judgment as a matter of law[.]" Okla. Dist. Ct. R. 13(e), 12 O.S. Supp. 2013, ch. 2, app.

ANALYSIS

¶ 5 As indicated above, Plaintiff states it is suing Brainerd "in manufacturers' products liability." Plaintiff's contention in this regard is that "the drum was defective in that there was no warning that it was flammable even when empty, and that this made the drum unreasonably dangerous - dangerous beyond the extent contemplated by an ordinary user." Plaintiff does not dispute that the drum included a warning addressing the dangers of a drum full of toluene, but Plaintiff asserts that because this "limited warning on the drum [did] not contain the danger of an empty drum, ... it was defective at the time it left [Brainerd's] control." Plaintiff has also asserted a theory of ordinary negligence against Brainerd, and states in this regard that Brainerd was "in a position to need to warn" B.L.M. and/or his employer regarding the dangers of residual toluene, and breached its duty to B.L.M. and/or his employer "by failing to do so."

I. Products Liability

¶ 6 The Oklahoma Supreme Court has identified three elements to a products liability claim: the defect must have (1) caused the injury in question, (2) existed at the time it left the manufacturer's control, and (3) made the product unreasonably dangerous. Kirkland v. Gen. Motors Corp. , 1974 OK 52, ¶ 0, 521 P.2d 1353 (Syllabus by the Court) (adopting § 402A of the Restatement (Second) of Torts (1965) ). "The defect can stem from either a dangerous design or an inadequate warning about the product's dangers." Braswell v. Cincinnati Inc. , 731 F.3d 1081, 1085 (10th Cir. 2013) (applying Oklahoma law). See also Swift v. Serv. Chem., Inc. , 2013 OK CIV APP 88, ¶¶ 15-16, 310 P.3d 1127 (The plaintiffs in Swift argued the chemicals in question were defective "because they left [the manufacturer's] hands without a warning adequate to anticipate and prevent [the alleged] injury," and the court explained that "[l]iability is contemplated ... if a product does not have a warning sufficient to inform 'an ordinary consumer of the product' of its dangerous characteristics ...." (citation omitted) ).

¶ 7 As indicated above, Plaintiff in this case asserts a defect existed in the form of an inadequate warning. "The manufacturer of a product has a duty to warn the consumer of potential dangers which may occur from the use of the product when it is known or should be known that hazards exist." Swift , ¶ 16 (quoting McKee v. Moore , 1982 OK 71, ¶ 4, 648 P.2d 21 ).

In order to qualify as "unreasonably dangerous," however, "[t]he article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics ." Restatement § 402A, comment (i). Thus, a supplier's duty to warn extends only to the "ordinary consumer" who purchases the product. Liability is contemplated only if a product does not have a warning sufficient to inform "an ordinary consumer of the product" of its dangerous characteristics, and if the risk of harm is not one that an "ordinary consumer who purchases the product" reasonably would expect. ...

Swift , ¶ 16 (emphasis added).

¶ 8 Thus, "[t]he distinction to be made regarding who constitutes an ordinary consumer of a specific product is of important consequence." Woods v. Fruehauf Trailer Corp. , 1988 OK 105, ¶ 13, 765 P.2d 770. "Only when a defect in the product renders it less safe than expected by the ordinary consumer will the manufacturer be held responsible." Id. (citation omitted). However, in Woods , where the product in question was a gasoline tanker trailer, the ordinary consumer was articulated by the Court as "one who is familiar with the hazards associated with loading, transporting and unloading gasoline[.]" Id. ¶ 14. The Woods Court further explained that "an alleged 'defect' may not render the product less safe than expected where the same 'defect' may render the product unsafe as to the general public." Id. The Woods Court again emphasized that "evidence that the tank could have been made 'safer' does not establish that it was less safe than would be expected by the ordinary consumer." Id. ¶ 17.

¶ 9 In the present case, it is undisputed that Psycho Path, LLC acquired the used and empty (or seemingly empty) barrel in order to use it for its own unique purposes at its haunted house. It is undisputed Psycho Path, LLC was not attempting to purchase toluene; indeed, it purchased, or sought to purchase, an empty drum. Thus, the evidence unequivocally shows B.L.M. and his employer were not ordinary consumers of the product sold by Brainerd. Furthermore, it is undisputed that, as set forth above, the tanks of toluene sold by Brainerd did include a warning addressing the dangers of a drum full of toluene. Although an additional warning setting forth the dangers of residual toluene may have made the product safer to non-ordinary consumers, Oklahoma products liability law does not impose such an obligation on manufacturers or suppliers. Any alleged defect in a warning hinges on the expectations of the ordinary consumer, and, here, the ordinary consumer of the toluene sold by Brainerd would be one "familiar with the hazards associated with" the product.

¶ 10 Products liability "represent[s] a departure from, and an exception to, the general rule that a supplier of chattels [is] not liable to third persons in the absence of negligence or privity of contract." Restatement (Second) of Torts § 402A cmt. b (1965). Oklahoma's strict products liability is based on § 402A of the Restatement. See Allenberg v. Bentley Hedges Travel Serv., Inc. , 2001 OK 22, ¶ 11, 22 P.3d 223. Section 402A provides as follows:

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

¶ 11 Here, however, it is undisputed Brainerd was not in the business of selling empty drums. Moreover, the product which Brainerd was in the business of selling - drums of toluene - was opened and emptied prior to being resold on the secondhand barrel market. Thus, even assuming arguendo that B.L.M. or his employer can properly be viewed as ordinary consumers of Brainerd's product, Brainerd's product was substantially changed in condition prior to reaching them.

¶ 12 The fact remains, however, that neither B.L.M. nor his employer at the time of the accident can be viewed as ordinary consumers; indeed, it is undisputed they were not consumers at all of the toluene sold by Brainerd, but were, instead, consumers of a secondhand barrel. The circumstances of the present case are remarkably similar to those presented in Thompson v. TCI Products Co. , 81 F.Supp.3d 1257 (N.D. Okla. 2015). In Thompson , a worker "was using a plasma cutter to cut lids from secondhand barrels. ... [O]ne barrel exploded when [the worker] began cutting it open, and the explosion reportedly rocked the surrounding area. [The worker] died before emergency personnel arrived." 81 F.Supp.3d at 1260. The barrel, prior to entering the secondhand barrel market, had contained a chemical sold as an automobile paint thinner/automobile painting equipment cleaner. The representative of the estate of the deceased worker brought suit against the manufacturer of this product.

¶ 13 As in the present case, the manufacturer included a warning label on the barrel; however, the manufacturer made no effort to ensure that any businesses purchasing the product subsequently sold "the used barrels to a barrel refurbisher." Id. at 1261. Applying Oklahoma law, the Thompson Court stated as follows:

Plaintiff contends that the meaning of "ordinary consumer" extends beyond "users who a manufacturer specifically targets" and should include those, like [the deceased worker], who acquire barrels that at one point contained [the paint thinner]. The Oklahoma Supreme Court has defined the "ordinary consumer" as "one who would be foreseeably expected to purchase the product involved." Woods v. Fruehauf Trailer Corp. , 765 P.2d 770, 774 (Okla. 1988). In Woods , the Oklahoma Supreme Court determined that the ordinary consumer of a tanker trailer designed to haul gasoline was "one who is familiar with the hazards associated with loading, transporting and unloading gasoline." Id. The Tenth Circuit, applying Oklahoma law, determined that the wife of a man who worked with a product containing asbestos was not an ordinary consumer of the product because she was not a "foreseeable purchaser or user"; her only contact with the product came through laundering her husband's clothes. Rohrbaugh v. Owens-Corning Fiberglas Corp. , 965 F.2d 844, 846-47 (10th Cir. 1992) ( Rohrbaugh I ). Finally, the Oklahoma Court of Civil Appeals recently concluded that individuals who purchased a product made of repackaged raw chemicals were not ordinary consumers of the chemicals because the manufacturer sold "technical grade" chemicals not intended for use by the public and would sell only to industrial users. Swift , 310 P.3d at 1132.

81 F.Supp.3d at 1263.

¶ 14 The Thompson Court then convincingly reasoned as follows:

Even were the Court to broaden the meaning of "ordinary consumer" beyond [an automobile paint or body shop technician], it would not encompass [the deceased worker]. Fundamentally, [the deceased worker] was intent on acquiring the used barrel so that he could transform it for his own purposes; the contents of the barrel were irrelevant. As in Rohrbaugh I , there is no evidence that [the deceased worker] ever intended to or would purchase [the product in question]. He thus cannot be considered "one who would be foreseeably expected to purchase the product involved," Woods, 765 P.2d at 774 ; to so find would expand the meaning of "foreseeable" beyond the bounds of Oklahoma law. The Court finds that the ordinary consumer of [the product in question] is the automobile paint and body shop technician, as that is the person who would foreseeably purchase and use [the product].

81 F.Supp.3d at 1264.

¶ 15 We similarly conclude the ordinary consumer of the product sold by Brainerd is the industrial purchaser of toluene. Moreover, even were we to broaden the meaning of "ordinary consumer" beyond such a purchaser, it would still not encompass B.L.M. or his employer. We further conclude Brainerd's failure to warn regarding the dangers of empty drums containing residual amounts of toluene did not render its product unreasonably dangerous to an extent beyond that which would be contemplated by the ordinary consumer. Pursuant to Thompson , as well as to Woods and Swift , we conclude, as a matter of law, that Brainerd cannot be held liable under the strict products liability theory advanced by Plaintiff.

II. Negligence

¶ 16 In order to support an actionable claim under a negligence theory,

it is necessary for a plaintiff to establish the concurrent existence of: 1) a duty on the part of the defendant to protect the plaintiff from injury; 2) the failure of the defendant to perform that duty; and 3) injury to the plaintiff resulting from such failure.

Woods , ¶ 19 (footnote omitted). As in the present case, in Swift the plaintiffs asserted a theory of ordinary negligence against the manufacturer of the chemicals in question "for negligent failure to warn of use of the chemicals." Swift , 2013 OK CIV APP 88, ¶ 24, 310 P.3d 1127. As set forth above, and similar to Plaintiff's articulation of its products liability theory, Plaintiff asserts that Brainerd was "in a position to need to warn" B.L.M. and/or his employer regarding the dangers of residual toluene, and breached its duty to B.L.M. and/or his employer "by failing to do so."

¶ 17 In this regard, the Swift Court explained:

Under a negligence theory of recovery, a seller or supplier of a product has a duty to use reasonable care to provide adequate warnings or instructions to avoid injury to a foreseeable plaintiff. An essential element to recovery is that the defendant owed the plaintiff a duty of care under the circumstances presented. "Just because the defendant has created a risk which harmed the plaintiff ... does not mean that, in the absence of some duty to the plaintiff, the defendant will be held liable." Nicholson v. Tacker , 1973 OK 75, ¶ 11, 512 P.2d 156, 158. Whether a duty of care exists in a particular case is a question of law for the court to determine. Prince v. B.F. Ascher Co. , 2004 OK CIV APP 39, 90 P.3d 1020.

Swift , ¶ 24.

¶ 18 In reaching its conclusion that the manufacturer of the chemical did not owe a duty to the injured party, the Swift Court was guided by the Oklahoma Supreme Court's analysis in Duane v. Oklahoma Gas & Electric Co. , 1992 OK 97, 833 P.2d 284. The Duane Court explained "there is no duty to warn where the product is used in an unlikely, unexpected or unforeseeable manner." Id. ¶ 4. In Duane , the plaintiff "sued, among others, Shell and Chevron, for strict liability and negligence, arguing that Shell and Chevron were liable to him for their failure to warn of the dangerous propensities of their insulating oil." Id. ¶ 2 (footnote omitted). The plaintiff in Duane was employed by a company that designed "oil-filled switches," and one of these switches had been placed inside a tank which, after being shipped to a customer, "had exploded internally." Id. ¶ 1. It was surmised that the switch itself had failed, and the tank was therefore shipped back to the plaintiff's employer.

In order to discover the cause of the switch's failure, [the plaintiff's employer] instructed his employees to drain the switch of the oil remaining inside before cutting open the tank, as they had done many times in the past. This time, however, [the plaintiff's employer] additionally instructed [the plaintiff] to purge the switch with compressed air before grinding it open to inspect the inside. [The plaintiff] was injured when he began grinding and the tank exploded.

Id. ¶ 2.

¶ 19 As indicated, the plaintiff in Duane sued the suppliers of the insulating oil, alleging that this oil caused the explosion which resulted in the plaintiff's injuries. However, regarding the duty to warn of dangerous characteristics, the Court explained as follows:

The general rule as to a supplier's duty to warn of known dangers in the ordinary use of its product is set out in Restatement of Torts (Second), § 388 :
One who supplies directly or through a third person a chattel for another to use is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be endangered by its probable use, for physical harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.
We find that neither (a) nor (b) above is present in the case at bar. The use for which the chattel in this case was supplied was for insulating oil to be used in oil-filled vacuum switches designed and manufactured by [plaintiff's employer]. The oil was not inherently dangerous for the use for which it was supplied: as insulating oil. Plaintiffs' own allegations are that the oil became dangerous when a variety of conditions occurred, such as severe electrical arcing, purging the switch with air, and grinding.

Duane , ¶¶ 5-6.

¶ 20 It is undisputed that B.L.M. and his employer were not using Brainerd's product "for the use for which it was supplied." Indeed, at the time of the accident, Brainerd's product was neither being used "in the manner for which" it was supplied, nor "by a person for whose use it [was] supplied." Therefore, we conclude there was no duty to warn B.L.M. or his employer in the manner advanced by Plaintiff. Finding no duty, we conclude Brainerd cannot be held liable under the ordinary negligence theory advanced by Plaintiff.

CONCLUSION

¶ 21 We conclude Brainerd cannot be held liable under either the products liability theory or ordinary negligence theory advanced by Plaintiff. Therefore, we affirm the trial court's award of summary judgment in favor of Brainerd.

¶ 22 AFFIRMED .

RAPP, J., and GOODMAN, J., concur.

      In the deposition of a corporate representative of Brainerd, the representative testified that "[t]he majority of a paint thinner is toluene." He testified that is why it is sold to entities like "Anchor Paint."

      See n.4, infra .

      In Oklahoma, "the seller of a product in a defective condition, which is unreasonably dangerous to the user or consumer, is strictly liable for the physical harm to the person or property caused by the defect. This theory of recovery is based on the Restatement (Second) of Torts, § 402A (1965)." Allenberg , ¶ 11 (footnote omitted).

      In Plaintiff's supplemental response to Brainerd's motion for summary judgment, Plaintiff attached an affidavit of her attorney wherein he states that, based on the "recent testimony of Defendants Marquez" - i.e., the employers of B.L.M. and the owners of Psycho Path, LLC - "[i]t is unknown when and from whom the barrel in question was purchased. The chain of custody of the barrel could have been with Defendant Thomas, Defendant West Texas Drum Company, or Defendant Brainerd. From the deposition of Mr. Marquez, it appears that more likely than not, the barrel was in the possession of one [of] these three (3) Defendants," and "it is impossible to determine which Defendant had custody of the barrel" immediately before it came into the possession of the Marquezes. However, it appears that any lack of evidence in this regard - in particular, lack of evidence as to whether Brainerd sold the empty drum directly to Psycho Path, LLC - is the result of the fact that this issue was never in dispute. That is, as set forth above, it was Plaintiff's position (at least until the filing of its supplemental response) that the drum was "resold" - i.e., that it was foreseeable to Brainerd that its drums full of toluene might be subsequently resold - but at no point did Plaintiff allege that Brainerd was in the business of selling empty tanks or that it sold the tank to Psycho Path, LLC.
      More importantly, evidentiary materials have been presented in support of the conclusion that Brainerd was in the business of selling toluene, not emptied secondhand barrels, and that the owners of Psycho Path, LLC purchased a barrel on the secondhand market from Third-Party Defendant Robert Thomas, an individual not affiliated with Brainerd, who testified to selling one-hundred secondhand barrels to Psycho Path, LLC just prior to the accident. See, e.g. , R. Tab 4, Brainerd's Exhibit 2 (stating, inter alia, "Product identifier [-] Toluene," "Distributed by: brainerd," "intended for use as a refinery feedstock, fuel or for use in engineered processes"); R. Tab 4, Brainerd's Exhibit 3; R. Tab 4, Brainerd's Exhibit 6 ("Through discovery, the parties have learned that [Mr. Thomas] actually supplied the used barrel that is the subject matter of this litigation ...."); R. Tab 6, Plaintiff's Exhibit 2 (deposition of Mr. Thomas wherein the following statements are found: "Mr. Victor Marquez, this individual who purchased the barrels"; "your testimony is that you sold Psycho Path two different orders of 50 barrels each? A. Yes, sir."; the sale occurred "[a]bout a week or two before Halloween."). Therefore, even if Mr. Marquez stated in his deposition that he does not know "when and from whom the barrel in question was purchased," this does not support a reasonable, non-speculative, and countervailing inference that Brainerd sold the empty tank to Psycho Path, LLC.
      Thus, we agree with Brainerd's assertions in its response in opposition to Plaintiff's supplemental response, wherein it states that no testimony of Mr. Marquez "change[s] the facts as they had previously been identified." Brainerd asserts, "Nothing in the testimony of Mr. Marquez indicates that the barrel came from anywhere but Mr. Thomas." Brainerd asserts this is "a fact known since July 2016, when Mr. Thomas gave his deposition and admitted that he had sold a large number of barrels to Mr. Marquez" prior to the accident. Brainerd further asserts Plaintiff has "presented no evidence that the barrel in question came from anywhere other than Mr. Thomas."
      Once a defendant has introduced evidentiary materials showing no substantial controversy as to one fact material to plaintiff's cause of action and this fact is in defendant's favor, the burden shifts to the plaintiff to show that evidence is available which would justify a trial of the issue. If such evidence is not presented, summary judgment should, if appropriate, be entered against the non-moving party.
      Swift , 2013 OK CIV APP 88, ¶ 28, 310 P.3d 1127 (internal quotation marks omitted) (citation omitted). We conclude Mr. Marquez's asserted lack of knowledge as to the provenance of the particular barrel in question fails to create a substantial dispute of material fact in this regard.

      Notably, evidentiary materials were presented that "secondhand barrels 'have a thousand and one uses on the rural America farm.' " Id .