SANTA FE, N.M. (Legal Newsline) – The challenge of new fees on pet food companies that will fund spays and neuters must be thrown out of court, New Mexico Gov. Michelle Lujan Grisham is arguing.
Lujan Grisham on Feb. 19 filed a motion to dismiss, arguing plaintiffs like the Pet Food Institute and the New Mexico Chamber of Commerce failed to make any accusations that would subject her to liability.
She says she is entitled to immunity because she merely signed the challenged legislation in her legislative capacity.
“While the complaint appears to identify the New Mexico Department of Agriculture, the non-defendant agency charged with collecting the fee under the statute, as a wrongdoer, it is difficult to identify the wrongful conduct asserted,” the motion says.
In fact, other than asserting that Governor Lujan Grisham is the Governor, ‘responsible for executing the laws of the State’ and that the Governor signed Senate Bill 57 into law on March 6, 2020, Plaintiffs do not allege any conduct by Governor Lujan Grisham, much less conduct that might state a claim for violations of federal or state law.”
Jaclyn McLean of Hinkle Shanor is representing Lujan Grisham.
On Dec. 30, the Pet Food Institute, the New Mexico Chamber of Commerce, the New Mexico Farm & Livestock Bureau, Pet Industry Joint Advisory Council and Rio Grande Kennel Club filed suit over the Commercial Feed Act’s new section.
That section – the Spay and Neuter Program Fee – imposes an annual fee on each pet food registered with the state Department of Agriculture. Most of those fees go toward spay and neuter services in the state.
The fee starts at $50 for 2021, then moves up to $75 in 2022 and $100 for 2023 and every year after that.
“While the fee is labeled a ‘fee’ by statute, there is no rational relationship between the fee and any governmental service provided,” the lawsuit says.
“At best, only 4% is for administration of related services; however, because the 4% is distributed to the department to administer all feeds under the Commercial Feed Act it is unclear the amount, if any, of the fee that will be used, by statute, to cover the cost of performing any associated service relating to pet food registration.”