A. Any person having an interest which is or may be adversely affected may commence a civil action on his own behalf to compel compliance with the Surface Mining Act. Such action may be brought against:

(1) the director or the commission alleging a violation of the Surface Mining Act or of any rule, regulation, order or permit issued pursuant thereto;

(2) any person who is alleged to be in violation of any rule, regulation, order or permit issued pursuant to the Surface Mining Act; or

(3) the director or commission alleging a failure to perform any nondiscretionary act or duty under the Surface Mining Act. Provided, however, that no action may be commenced if the director or the commission has commenced and is diligently prosecuting a civil action in a court of this state to require compliance with that act, but in any such action any person whose interest may be adversely affected may intervene as a matter of right.

B. No action may be commenced under this section prior to sixty days after the plaintiff has given written notice to the director, the commission, the attorney general and to any alleged violator of the Surface Mining Act. However, where the violation or order complained of constitutes an immediate threat to the health or safety of the plaintiff or would immediately and irreversibly impair a legal interest of the plaintiff, an action under this section may be brought immediately after notification of the proper parties.

C. Any action brought under this section alleging a violation of the Surface Mining Act or the regulations thereunder other than suits against the director or the commission shall be brought in the judicial district in which the surface mining operation complained of is located. Suits against the director or the commission shall be brought in the district court of Santa Fe.

D. In any action under this section, the director or commission, if not a party, may intervene as a matter of right.

E. The court in issuing any final order in any action brought pursuant to this section, may award costs of litigation, including attorney and expert witness fees, to any party, whenever the court determines such award is appropriate. The court may, if a temporary injunction or preliminary injunction is sought, require the filing of a bond or equivalent security in accordance with the rules of civil procedure.

F. Any person who is injured in his person or property through a violation, by any operator, of any rule, regulation, order or permit under the Surface Mining Act may bring an action for damages, including reasonable attorney and expert witness fees, only in the judicial district in which the surface mining operation complained of is located. Nothing in this subsection shall affect the rights established by or limits imposed under the New Mexico Occupational Disease Disablement Law and the Workmen's Compensation Act [Chapter 52, Article 1 NMSA 1978].

G. Nothing in this section shall restrict any right which any person or class of persons may have under any statute or common law to seek enforcement of the Surface Mining Act and the regulations thereunder, or to seek any other relief.

History: Laws 1979, ch. 291, § 24.

Cross references. — For the Occupational Disease Disablement Law, see 52-3-1 NMSA 1978 et seq.