SANTA FE, N.M. (Legal Newsline) - A federal judge has decided she does not have jurisdiction over a challenge to a New Mexico law that requires pet food companies to fund spay-and-neuter programs.
The Tax Injunction Act requires her to send the case back to a New Mexico state court, Judge Judith Herrera wrote Nov. 10. Plaintiffs like the Pet Food Institute initially filed the case in Santa Fe before state officials like Gov. Lujan Grisham removed it to federal court.
The fees imposed under SB57 are taxes under state law and the challenge must be heard in state court, Herrera wrote.
"The question... is whether Plaintiffs have access to 'a plain, speedy and efficient remedy' in New Mexico state courts," Herrera wrote. "The State meets these minimal criteria as long as it provides the taxpayer with adequate procedural due process that permits a taxpayer to raise constitutional objections to the tax."
That happens when the state files a complaint for seizure in state court when it feels a person has not complied with the New Mexico Commercial Feed Act, she determined. Those targeted have the option to appeal decisions by agencies to state courts.
"Neither party has argued that these state law remedies are inadequate," Herrera wrote.
The section of the Commercial Feed Act in question – the Spay and Neuter Program Fee – imposes an annual fee on each pet food company registered with the state Department of Agriculture. Most of those fees go toward spay and neuter services in the state.
The fee started at $50 for 2021, then moved 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.”