Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

DEBORAH L. TOOMEY, et al. Plaintiffs, vs. CITY OF TRUTH OR CONSEQUENCES, a municipal corporation, Defendant. DEFENDANTS RESPONSE TO PLAINTIFF DEBORAH L. TOOMEYS MOTION TO REMAND AND TO 64 PLAINTIFFS JOINDER IN MOTION TO REMAND [Doc.8] COMES NOW Defendant, the City of Truth or Consequences, by and through its counsel Coppler Law Firm, P.C. (Gerald A. Coppler and John L. Appel) and for its Response to the Motion to Remand and Memorandum of Law in Support [Doc. 8] (hereinafter, the Motion to Remand) filed herein by Plaintiff Deborah L. Toomey on November 7, 2012 and to the 64 Plaintiffs Joinder in Motion for Remand [Doc. 10] (hereinafter, the Joinder) filed on November 9, 2012, states as follows. No. 2:12-cv-01100-SMV-LAM

I. INTRODUCTION This case was originally filed in the Seventh Judicial District Court for Sierra County, New Mexico. Defendant, the City of Truth or Consequences (the City), removed it to the United States District Court for the District of New Mexico because Plaintiffs First Claim for

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 2 of 18

Relief alleges a violation of United States Land Office Patent No. 1191929. Complaint for Declaratory Relief and Injunction [Doc. 1-1 (Ex. A)] (hereinafter, the Complaint), filed herein on October 15, 2012, 77 79, page 30 of 49 and A, page 34 of 49. In addition, Plaintiffs allege that the City has violated their constitutional rights to due process, without specifying any limitation as to whether their claim rests on constitutional rights guaranteed by the United States Constitution, or only those provided by the Constitution of the State of New Mexico (the State). Complaint [Doc. 1-1 (Ex. A)] at 28. Plaintiffs First and Third Claims for Relief therefore present questions requiring determination under the Constitution and laws of the United States. Plaintiffs other claims for relief appear to rely primarily, if not entirely, on State law. Plaintiffs now seek to remand this matter to the State court. As to the Plaintiffs First Cause of Action, Plaintiff Toomey now asserts that the Plaintiffs do not really want a judicial determination on the alleged violation of U.S. Patent No. 1191929 after all (despite their prayer for precisely that, set forth in Paragraph 78 of the Complaint), and she presents an argument to the effect that the Court should not even consider that matter because it is res judicata, having allegedly been decided by an officer of the New Mexico Economic Development Department (NMEDD) in the context of a procurement decision by that Department. Ms. Toomey and the other sixty-four Plaintiffs, in the Motion to Remand and the Joinder, now assert that, notwithstanding language to the contrary in the Complaint, they intended only to assert claims relying only upon City of Truth or Consequences local ordinances, State of New Mexico

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 3 of 18

statutes, State of New Mexico administrative rules and decisions, and rely upon the New Mexico Constitution. Joinder [Doc. 10] at 1 (emphasis in original). Plaintiffs have not moved to amend their Complaint to conform to the newly modified scope of their claimed causes of action, as now set forth in the Motion to Remand and the Joinder.

II. APPLICABLE LAW The federal district courts have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. 1331. Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. 28 U.S.C. 1441(a). Whenever a separate and independent claim or cause of action within the jurisdiction conferred by [28 U.S.C. 1331] is joined with one or more otherwise non-removable claims or causes of action, the entire case may be removed and the district court may determine all issues therein, or, in its discretion, may remand all matters in which State law predominates. 28 U.S.C. 1441(c). Where a plaintiff seeks to prove that the grantee under a federal land patent used the land unlawfully, the plaintiff must establish that the [grant of] right-of-way prohibited the use to which it was put. Nicodemus v. Union Pacific Corp., 440 F.3d 1227, 1235 (10th Cir. 2006). Thus, where such a claim is made, [t]he federal issue . . . arises in Plaintiffs case-in-chief, not

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 4 of 18

by way of defense. Id. Notwithstanding the presence of the federal issue, a case may be dismissed for want of a substantial federal question if the federal issue is (1) wholly insubstantial or obviously frivolous, (2) foreclosed by prior cases which have settled the issue one way or another, or (3) so patently without merit as to require no meaningful consideration. Nicodemus, 440 F.3d at 1236, quoting Wiley v. Natl Collegiate Athletic Assn, 612 F.2d 473, 477 (10th Cir. 1979).

III. ARGUMENT Plaintiff Toomey (subsequently joined by the other sixty-four Plaintiffs) now asserts that this Court should not even consider Plaintiffs First Claim for Relief, because there has already been an administrative determination of that issue. In their First Claim for Relief, Plaintiffs state: Plaintiffs seek a judicial determination Defendant violates the reservations and

restrictions of United States Patent No. 1191929 by utilizing the patented land for purposes other than recreational and by zoning the patented land as M-1 and T-1. Complaint [Doc. 1, Ex. A], 78. Now, Plaintiffs allege that their own claim for relief as set forth in the Complaint is frivolous or, at the least, entirely unnecessary: There is no need to request a judicial

determination as to whether the subject land remains encumbered for recreational use only, as the State of New Mexico made that final determination on September 7, 2012, through the administrative appeal process. Motion to Remand [Doc. 8], at 9. Similarly, Plaintiffs now seek to modify their original Third Claim for Relief, alleging violations of constitutional due process,

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 5 of 18

by adding a restriction not found in the original Complaint; they now claim that they meant only a violation of due process under the State constitution. Notwithstanding Plaintiffs chameleon-like effort to change their allegations to suit the backdrop, the simple fact remains that the Complaint, as filed, invokes federal question jurisdiction and was properly removed to this Court. The Complaint has not been amended.

A.

The Complaint asserts a claim alleging improper use of land granted to the City of Truth or Consequences under a federal patent, which invokes federal jurisdiction. At the very heart of this litigation is Plaintiffs claim that the City, by erecting a recycling

center and a solid waste collection center on land original granted to the City by federal patent, has violated the terms of the patent. The patent at issue (U.S. Patent No. 1191929) is specifically cited or mentioned in Paragraphs 2, 12, 16, 17, 19, 20, 21, 23, 27, 28, 29, 78, and 79 of the Complaint [Doc. 1-1 (Ex. A)]. Plaintiffs First Claim for Relief bears the heading Violation of U.S. Patent No. 1191929. Complaint [Doc. 1-1 (Ex. A)] at 27. Plaintiffs seek a judicial determination Defendant violates the reservations and restrictions of United States Patent No. 1191929 by utilizing the patented land for purposes other than recreational and by zoning the patented land as M-1 and T-1. Complaint [Doc. 1-1 (Ex. A)], 78. On its face, the Complaint therefore presents a question that can only be resolved as a matter of federal law, and more specifically interpretation of the patent in light of the legislation under which it was authorized to be issued, the Recreation and Public Purposes Act, codified at 43 U.S.C. 869 et seq. This is not merely a dispute regarding the ownership or use of land, the title to which happens to be traceable to a patent from the federal government. See, e.g.,

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 6 of 18

Standage Ventures, Inc. v. Arizona, 499 F.2d 248 (9th Cir. 1974) (no federal jurisdiction where the complaint did not allege, directly or indirectly, a violation of any law of the United States). On the contrary, the Complaint directly alleges a violation by the City of the terms under which Patent No. 1191929 was granted. Binding precedent in the Tenth Circuit establishes that such a claim presents a substantial federal issue that is justiciable in the United States district court. Nicodemus, 440 F.3d at 1236. While Defendant believes and states that Plaintiffs allegations relating to the patent are incorrect as a matter of law and policy, Plaintiffs present a question that is, at least, not wholly frivolous. Plaintiffs claims, if they are correct (which the City denies) would impose severe restrictions on the use of its lands originally acquired by patent from the United States over 75 years ago. This is a matter of some importance to the City and its residents, since the limitations the Plaintiffs seek to enforce would substantially limit the economic and use value of the lands in question. At least as to these specific lands, no prior cases have settled the question presented, although the resolution of at least one prior case suggests that Plaintiffs lack standing or even a cause of action to pursue their claims alleging violation of the patent. Raypath, Inc. v. City of Anchorage, 544 F.2d 1019 (9th Cir. 1976). Consequently, under Nicodemus and the applicable statutes governing federal jurisdiction, this case presents a question arising under the laws of the United States that should be addressed by this Court under 28 U.S.C. 1331, and which was properly removed to this Court pursuant to 28 U.S.C. 1441(a). The Court should deny the Motion to Remand and proceed to hear at least the questions raised by Plaintiffs in their First Claim for Relief.

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 7 of 18

B.

Nothing in the prior proceedings before the New Mexico Economic Development Department binds this Court by way of collateral estoppel or issue preclusion. Having discovered that presenting a federal claim in the Complaint results in jurisdiction

of the federal courts, and not being pleased with that result, Ms. Toomey (subsequently joined by the other 64 plaintiffs) has now decided that she didnt really mean it after all. Instead, she says that all the Plaintiffs ever really wanted (never mind the plain language of the Complaint) was for the court to declare that solid waste collection and recycling are not recreational . . . and . . . Defendant is in violation of a recent and existing State of New Mexico administrative decision that the land remains encumbered for recreational use only. Motion to Remand [Doc. 8], at 10. Apparently, Plaintiffs now argue that the Court should not even rule on the question presented by their First Claim for Relief. As Ms. Toomey states it: There is no need to request a judicial determination as to whether the subject land remains encumbered for recreational use only, as the State of New Mexico made that final determination on September 7, 2012, through the administrative appeal process. Motion to Remand [Doc. 8], at 9. It is unclear whether Plaintiffs are simply abandoning the cause of action set forth in their First Claim for Relief, but at the least Plaintiffs position appears to have somehow become transformed into an assertion that their own claim for relief is non-justiciable on grounds of collateral estoppel. Since Plaintiffs in their Complaint make much of the proceedings on a public procurement matter before the New Mexico Economic Development Department (NMEDD), and now apparently assert it as grounds for collateral estoppel, the City will here briefly address the collateral estoppel argument.

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 8 of 18

Principles of collateral estoppel (issue preclusion) may apply to the fact-finding of administrative bodies acting in a judicial capacity. University of Tennessee v. Elliott, 478 U.S. 788, 797 (1986), citing U.S. v. Utah Constr. & Mining Co., 384 U.S. 394 (1966). In

determining whether a state court decision or a state agency administrative decision should be given preclusive effect, the federal Court will look to the law of the state. Sierra Club v. Two Elk Generation Partners, L.P., 646 F.3d 1258, 1264 (10th Cir. 2011). [W]hen a state agency acting in a judicial capacity resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to litigate, federal courts must give the agencys fact-finding the same preclusive effect to which it would be entitled in the States courts. Elliott, 478 U.S. at 799, citing Utah Constr. & Mining, 384 U.S. at 422 (internal punctuation, ellipses and citation omitted). In New Mexico, [c]ollateral estoppel, also called issue preclusion, prevents a party from re-litigating ultimate facts or issues actually and necessarily decided in a prior suit. Hartnett v. Papa Johns Pizza USA, Inc., 828 F. Supp. 2d 1278, 1286 (D.N.M. 2011), quoting Ullrich v. Blanchard, 2007-NMCA-145, 19, 142 N.M. 835, 839, 171 P.3d 774, 778 and Deflon v. Sawyers, 2006-NMSC-025, 13, 139 N.M. 637, 642, 137 P.3d 577, 582. Before collateral estoppel is applied to preclude litigation of an issue, . . . the moving party must demonstrate that (1) the party to be estopped was a party to the prior proceeding, (2) the cause of action in the case presently before the court is different from the cause of action in the prior adjudication, (3) the issue was actually litigated in the prior adjudication, and (4) the issue was necessarily determined in the prior litigation. Shovelin v. Central N.M. Elec. Coop., Inc. 115 N.M. 293,

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 9 of 18

297, 850 P.2d 996, 1000 (1993), citing Silva v. State, 106 N.M. 472, 474-76, 745 P.2d 380, 38284 (1987); Hartnett, 828 F. Supp. 2d at 1286. Whether the doctrine of collateral estoppel should be applied is within the trial courts discretion. Hartnett, 828 F. Supp. 2d at 1286; Shovelin, 115 N.M. at 299, 850 P.2d at 1002. Shovelin involved an appeal from an

administrative decision of the New Mexico Economic Security Department (ESD), adverse to the plaintiff. The ESD proceeding was an informal two and one-half hour telephonic hearing with minimal opportunity for discovery and no indication that its results would be deemed preclusive in subsequent court proceedings. Under the circumstances, the Supreme Court held that the plaintiff did not have a full and fair opportunity to litigate the issue before the ESD, and affirmed the trial courts refusal to apply the doctrine of collateral estoppel to preclude relitigation of the issue in subsequent court proceedings. Shovelin, 115 N.M. at 301-02, 850 P.2d at 1004-05. Here, the Plaintiffs apparently seek to apply collateral estoppel where the connection between administrative proceedings and the present case is even more tenuous, and where the issue now raised by Plaintiffs was not, and could not be, determined in the administrative proceedings. The NMEDD was not acting in a judicial capacity, the question relating to

interpretation of the United States land patent was not properly before it, and the City did not have a full and fair opportunity to litigate the question in those proceedings. Thus, none of the Elliott criteria that would permit this Court to give preclusive effect to its administrative decision apply. See Elliott, 478 U.S. at 799.

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 10 of 18

First, NMEDD is simply not an administrative adjudicatory body with authority to render rulings on land use matters. NMEDD was created, and its powers and duties are defined, by the Economic Development Department Act, Sections 9-15-1 through 9-15-15, NMSA 1978. Additional powers and duties were authorized by subsequent legislation, codified at Sections 9-15-16 through 9-15-56, NMSA 1978. Nowhere in any of that legislation is there any grant of authority for NMEDD to adjudicate land-use disputes or make binding determinations as to the status of lands granted to any person or entity by federal patent. Nor did Mr. Jackson,

NMEDDs general counsel who was appointed to conduct the proceedings cited by Plaintiffs, make any claim that he could adjudicate land use disputes. As he clearly stated in his letter decisions, he was designated by the central purchasing office responsible for the referenced procurement as the person with authority to resolve and issue determinations regarding bid protests on its behalf. Letter decisions dated August 21, 2012 and September 7, 2012, attached as Exhibits B and A, respectively, to Plaintiff Toomeys Motion for Preliminary Injunction [Doc. 1-3 (Ex. C)] (emphasis added). That is all Mr. Jackson was authorized to determinethe resolution of bid protests related to a proposed purchase of land under a request for proposals issued by NMEDD. The determination of bid protests is governed by Sections 13-1-172 through 13-1-176, NMSA 1978 (part of the New Mexico Procurement Code), and by Sections 1.4.1.80 through 1.4.1.93 of the New Mexico Administrative Code. Again, nothing in the Procurement Code or the regulations adopted under it authorizes NMEDD to make a determination regarding ownership and use of real property. In the course of making his determination that the procurement protest should be

10

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 11 of 18

granted and that NMEDD should reject the Citys offer to sell land to NMEDD, Mr. Jackson stated by way of explanation his opinions and concerns regarding the status of the Citys lands acquired under Patent No. 1191929, but the fact is that his statements are no more than thathis opinions and concerns. His only determination was that the Citys proposal was non-

responsive to RFP No. 12-495-00-00340. Motion for Preliminary Injunction [Doc. 1-3 (Ex. C)], page 10 of 24, under heading Conclusion. The City did not appeal that determination because the City had no significant economic or other interest in doing so. The facility in question would be built and the economic benefit of its presence would accrue to the City in any event, regardless of who provided the land on which it would be built. And the hearing officers analysis, even if flawed and based on an inadequate record, has no bearing on anything other than the determination of the procurement protest. Consequently, there was no incentive, occasion or opportunity for the City to litigate the land use dispute in the context of the NMEDD administrative proceeding. In short, the issue of whether the City can use its land for the present recycling center and the proposed collection center was never even addressed in the NMEDD administrative proceedings, could not have been determined in those proceedings, and was not determined in those proceedings. The City, while a participant in those proceedings, did not have a full opportunity to address the land use issues because they were not even presented for decision, they were not actually litigated in the NMEDD proceedings, and they were not determined in the NMEDD proceedings. Plaintiffs collateral estoppel argument must be rejected in its entirety.

11

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 12 of 18

C.

The Complaint, by its terms, alleges violations of constitutional due process under either the federal or State constitution, or both, thus invoking federal jurisdiction. The Complaint, on its face, alleges repeatedly that the City has violated the Plaintiffs

constitutionally protected rights of due process, and seeks a judicial determination Defendant violates the constitutionally and statutorily protected right of due process... . Complaint [Doc. 1-1 (Ex. A)], 84. However, nowhere does the Complaint state whether the Plaintiffs claims are alleged under the federal or State constitution, or both. Now, in the Motion to Remand [Doc. 8] at 11-13 and in the Joinder [Doc. 10] (at bottom of first page), the Plaintiffs apparently seek to amend their Complaint to state their constitutional claims only under the New Mexico constitution. Ms. Toomey devotes some three pages to an argument that the City should have understood that Plaintiffs intended only the State constitution, because their due process claims relate to actions taken under State law. Motion to Remand [Doc. 8], at 11-13. Ms. Toomey apparently neglects the long-standing doctrine that a great many substantive provisions of the United States constitution are applicable to the states and their political subdivisions by action of Section 1 of the Fourteenth Amendment, so if the City were actually to violate a right guaranteed by the United States constitution it could be subject to an adverse decision on that basis. In any event, as Ms. Toomey herself notes, federal court jurisdiction is based on the allegations of the Complaint at the time of removal, not on subsequent efforts to restrict or alter the Complaint to change the designation of the law on which the Plaintiffs chose to rely. As Ms. Toomey observes, the plaintiffs are the master of their claim, and they may avoid federal jurisdiction by exclusive reliance on state law. Motion to Remand [Doc. 8], at 9. But Plaintiffs

12

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 13 of 18

here did not choose to rely only on state law. The simple fact is that the Complaint, by its own terms, invokes both federal and state constitutional claims. Consequently, even if federal jurisdiction was not invoked by Plaintiffs First Claim for Relief, it is necessarily invoked by the constitutional due process claims under their Third Claim for Relief. Here, too, Plaintiffs are bound by the terms of their Complaint and, having presented federal claims for adjudication, should not be permitted to now evade federal Court jurisdiction by attempting to selectively modify their Complaint (without actually moving to amend the Complaint as required by Fed. R. Civ. P. 15) in subsequent filings.

D.

Even if the Court determines that this cause should be remanded to the State court, in whole or in part, Plaintiffs are not entitled to recover costs, attorney fees, or sanctions for alleged fraud upon the court. Finally, the City notes that, even if the Court should eventually choose to remand this

case, in whole or in part, to the Seventh Judicial District Court for Sierra County, New Mexico, it does not follow that Plaintiffs should recover costs or attorney fees. As shown above, the Complaint, while not particularly well drafted, cannot reasonably be construed as not presenting federal claims in Plaintiffs First and Third Claims for Relief. It was therefore properly removed to the United States District Court. As Ms. Toomey notes, Plaintiffs are not represented by counsel, and therefore have no right to recover attorney fees in any event. As for Ms. Toomeys allegations of fraud on the court and demand for sanctions, we note that the greater part of pages 14 and 15 of the Motion to Remand [Doc. 8] consists merely of a series of wild and unsupported allegations phrased as rhetorical questions. The City states, for

13

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 14 of 18

the record, that the Notice of Removal [Doc. 1] and all other pleadings and documents filed by the City herein speak for themselves, and are absolutely devoid of any indication that the City or its counsel has committed fraud as alleged by Ms. Toomey. The City categorically denies that its Notice of Removal was predicated on the nefarious intentions hypothesized by Ms. Toomey. The simple fact is that the Plaintiffs chose to file a Complaint seeking judicial determination of matters clearly arising under the Constitution and laws of the United States. They should not be heard to complain that they now find it inconvenient to litigate in the appropriate forum for their claims to be heard.

IV. CONCLUSION Plaintiffs Complaint [Doc. 1-1 (Ex. A)] clearly sets forth a federal cause of action over which this Court has jurisdiction under 28 U.S.C. 1331, and this cause is therefore removable to this Court pursuant to 28 U.S.C. 1441(a). Plaintiffs have not filed a motion for approval to amend their Complaint. Rather, in the Motion to Remand [Doc. 8] and the Joinder [Doc. 10], they now seek to evade the jurisdictional consequences of their original Complaint by denying that they ever meant what is clearly set forth in the Complaint. Plaintiffs should not be permitted to evade Federal Court jurisdiction by denying the allegations of their own Complaint through subsequent motions and other filings with this Court. For the foregoing reasons, the Motion to Remand should be denied, and the Court should proceed to consider Plaintiffs allegations, as set forth in their Complaint, on the merits thereof.

14

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 15 of 18

Coppler Law Firm, P.C. 645 Don Gaspar Avenue Santa Fe, New Mexico 87505 (505) 988-5656 (505) 988-5704 fax /s/ Gerald A. Coppler Gerald A. Coppler John L. Appel Attorneys for Defendant Certificate of Service I HEREBY CERTIFY that on the 20th day of November, 2012, I filed the foregoing electronically through the CM/ECF system, which caused all counsel of record and Plaintiff Deborah L. Toomey to be served by electronic mail, fax, or USPS, as more fully reflected in the Notice of Electronic Filing. In addition, I caused a true copy of the foregoing to be delivered to the below-listed plaintiffs by First Class Mail, postage prepaid: Ron Fenn 316 N. Foch Street Truth or Consequences, NM 87901 Bethann Fenn 316 N. Foch Street Truth or Consequences, NM 87901 Gerald Trumbull 905 Pine Street Truth or Consequences, NM 87901 Rebecca Otero 558 Mims Truth or Consequences, NM 87901 Barbara Salasin 211 W. Riverside Drive Truth or Consequences, NM 87901 Patricia Sistrunk 506 S. Pershing Street, Apt. 1 Truth or Consequences, NM 87901 Joan Conway 316 E. 3rd Avenue Truth or Consequences, NM 87901 John Pape 212 Austin Avenue Truth or Consequences, NM 87901 Kathe Bachtel 590 Mims #5 Truth or Consequences, NM 87901 Glenn M. Allen P.O. Box 413 Williamsburg, NM 87942

John E. Rayburn P.O. Box 715 Williamsburg, New Mexico 87942 Lynn Lara P.O. Box 715 Williamsburg, New Mexico 87942

15

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 16 of 18

Yarrow Dankert 819 Ivy Street Truth or Consequences, NM 87901 Felicitas Rodriguez 6 Mud Canyon Road Truth or Consequences, NM 87901 Debra George 822 N. Pershing Street Truth or Consequences, NM 87901 James C. Mallen 600 N. Foch Street Truth or Consequences, NM 87901 Patrick Finley 417 Charles Street Truth or Consequences, NM 87901 Linda Scott 508 S. Pershing Street Truth or Consequences, NM 87901 Robert R. Munnerlyn P.O. Box 3028 Truth or Consequences, NM 87901 Dianne Fox P.O. Box 92 Williamsburg, New Mexico 87942

Alison Rashedi 214 Oak Street Truth or Consequences, NM 87901 Robert Hanseck 316 Broadway Avenue Truth or Consequences, NM 87901 William Charles Bennett Jr. P.O. Box 3 Truth or Consequences, NM 87901 Gordon Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Monica Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Augusta Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Joseph Mishler P.O. Box 684 Williamsburg, New Mexico 87942 Mildred I Reed P.O. Box 201 Williamsburg, New Mexico 87942

Benjamin A. Sanchez P.O. Box 432 Williamsburg, New Mexico 87942 Bonnie Sue Sanchez P.O. Box 432 Williamsburg, New Mexico 87942 Maryann Walter P.O. Box 403 Williamsburg, New Mexico 87942 Thomas P. Barto P.O. Box 83 Williamsburg, New Mexico 87942 Gretchen M. Barto P.O. Box 83 Williamsburg, New Mexico 87942 Arthur Levine P.O. Box 37 Williamsburg, New Mexico 87942 Ramona Levine P.O. Box 37 Williamsburg, New Mexico 87942 Edna Coble P.O. Box 906 Williamsburg, New Mexico 87942

16

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 17 of 18

Earl Fox P.O. Box 92 Williamsburg, New Mexico 87942 Louie Palacios P.O. Box 37 Williamsburg, New Mexico 87942 James Palacios P.O. Box 37 Williamsburg, New Mexico 87942 Michelle Cambroto P.O. Box 901 Williamsburg, New Mexico 87942 Phyllis Madison P.O. Box 901 Williamsburg, New Mexico 87942 David Madison P.O. Box 901 Williamsburg, New Mexico 87942 William Mata P.O. Box 85 Williamsburg, New Mexico 87942 Amanda Bailey P.O. Box 964 Williamsburg, New Mexico 87942

Michael W. Reed P.O. Box 201 Williamsburg, New Mexico 87942 Cheryl Hollingsworth P.O. Box 73 Williamsburg, New Mexico 87942 Don Childers P.O. Box 104 Williamsburg, New Mexico 87942 Shirley M. Childers P.O. Box 104 Williamsburg, New Mexico 87942 Betty Durham P.O. Box 855 Williamsburg, New Mexico 87942 Mary Rose P.O. Box 6 Williamsburg, New Mexico 87942 Carol Naranjo P.O. Box 752 Williamsburg, New Mexico 87942 Lucy Farrester P.O. Box 909 Williamsburg, New Mexico 87942

Bruce Thompson P.O. Box 906 Williamsburg, New Mexico 87942 Kenneth Hughes Smiley 408 N. Magnolia Truth or Consequences, NM 87901 Ann B. Smiley 408 N. Magnolia Truth or Consequences, NM 87901 Michal Schartz 605 S. Pershing Truth or Consequences, NM 87901 Maria Baca 201 W. Riverside Truth or Consequences, NM 87901 Alfredo Baca 201 W. Riverside Truth or Consequences, NM 87901 Joseph Jaramillo 1208 Aluminum Truth or Consequences, NM 87901 Marcus Jaramillo 1208 Aluminum Truth or Consequences, NM 87901

17

Case 2:12-cv-01100-SMV-LAM Document 40

Filed 11/20/12 Page 18 of 18

Dana Villines P.O. Box 92 Williamsburg, New Mexico 87942

John B. Gillem P.O. Box 909 Williamsburg, New Mexico 87942 Daronda Fox P.O. Box 1763 Elephant Butte, New Mexico 87942

Michelle Ellinger 427 Van Patten Truth or Consequences, NM 87901

on this 20th day of November, 2012. /s/ Gerald A. Coppler

T:\GAC\PLEADING\4130.2012-11-20 40 Response to Mtn to Remand

18