Recently legal writing guru Bryan Garner had an interesting piece on when you can ignore a point raised by your opponent on appeal.
While that may be possible in some circumstances, it’s probably not a good idea to ignore an opponent’s argument that your appeal should be dismissed entirely. But apparently, that’s what the appellant did in New Mexico Cattle Growers’ Association v. New Mexico Water Quality Control Commission. In an opinion by Judge Roderick Kennedy, the Court of Appeals dismissed an appeal by the New Mexico Cattle Growers’ Association.
The Cattle Growers had opposed a rule regarding waters on Forest Service lands that several state administrative agencies proposed to the Water Quality Control Commission. The Commission adopted the rule, but exempted cattle ranchers with grazing permits from the new requirements. The Cattle Growers appealed.
The state agencies moved to dismiss the appeal on the ground that only a party “adversely affected” by a new rule is entitled to appeal, and argued that because the Cattle Growers’ members were exempt from the new rule, the Cattle Growers’ Association could not appeal.
For reasons not disclosed in the opinion, the Cattle Growers’ Association did not respond to this argument. Although not obligated to do so, the Court nevertheless reviewed the testimony presented by the Cattle Growers’ witnesses at the agency rulemaking hearing, and did not find any evidence that the new rule would negatively affect the Cattle Grower’s members.
It may well be that no evidence of adverse effect existed, such that the appeal would have been dismissed even if the Cattle Growers had responded to the argument. But in most cases it’s a bad idea to ignore an effort to dismiss your appeal. It creates the damaging impression that you have no good argument to make, and you can’t depend on the appellate court to search the record for you (appellate judges are busy and will probably not be inclined to do so). And even where the Court’s judges do examine the record on their own, as they did here, they may well overlook some piece of evidence or legal argument that might have saved the appeal.
In ranching terms, a motion to dismiss your appeal should be treated like a bull getting ready to charge in your general direction. You may have various options, but ignoring the bull is not one of them.