STATE OF NEW MEXICO COUNTY OF DONA ANA THIRD JUDICIAL DISTRICT CV WILLIAM TURNER, Plaintiff, vs.

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1 0 0 STATE OF NEW MEXICO COUNTY OF DONA ANA THIRD JUDICIAL DISTRICT WILLIAM TURNER, vs. Plaintiff, CV-0- ROZELLA BRANSFORD, et al., Defendants. TRANSCRIPT OF PROCEEDINGS On the th day of November 0, at approximately :00 p.m., this matter came on for MOTION HEARING before the HONORABLE MANUEL I. ARRIETA, Judge of the Third Judicial District, State of New Mexico, Division I. The Plaintiff, William Turner, Attorney at Law, appeared telephonically Pro se, Granite Northwest, Albuquerque, New Mexico 0. The Defendants appeared telephonically by Counsel of Record, Michael D. LeBlanc and Sue A. Herrmann, Attorneys at Law, P.O. Box 0, Santa Fe, New Mexico 0-0. had: At which time, the following proceedings were THE COURT: This is Turner versus D'Antonio, et al., Number CV-00-. TR-

2 0 0 Appearances, please. MR. TURNER: Bill Turner, your Honor. MR. LEBLANC: Good afternoon, Michael LeBlanc and Sue Herrmann for the State Engineer's Office. THE COURT: All right. Thank you. And Mr. -- is it LeBlanc? MR. LEBLANC: Yes, sir. THE COURT: Speak up a little bit louder. We can barely you hear you here. MR. LEBLANC: My apologies. THE COURT: All right. Folks, we're here on the plaintiff's motion for order by issue. Mr. Turner, this is your motion. I'm not sure I understand the motion. Perhaps you can clarify. MR. TURNER: Yes, sir. It's fairly simple. I filed an information for public records act suit back on March nd in 00, in which I requested a copy of State Engineer Permit No., and in the complaint I provided the Court with a letter from the State Engineer, indicating that their refusal to accept the declaration -- which, by the way, is statutory -- was conditioned upon their statement that they do not issue -- do not issue permits in areas where there is a permit in place, and referencing Permit No.. This is in the Lower Rio Grande. Whereupon I filed requests for TR-

3 0 0 the inspection of their records to examine that permit. The State Engineer did not produce the permit either in their Albuquerque office or in their Las Cruces office. In any event, a number of hearings took place. There was an amendment to their response to the complaint -- or their motion to dismiss in which they stated that they had given me everything. There was a subsequent amendment where they stated that they did not give me the permit. I believe that was it. But, nevertheless, to get this case back on track and to follow the Rules of Civil Procedure, I filed a motion for a ruling by the Court on each of the issues that they raised in their conflagrated motion. Rule of the Rules of Civil Procedure states there shall be a complaint and an answer, and Rule states that a defendant shall serve his answer within 0 days after the service of the summons and complaint upon him. The State Engineer has not filed an answer. Instead, they filed a motion to dismiss, which is improper, a conflagrated motion which raises five points. The first point is that D'Antonio is not a proper defendant because he is not a custodian of the records. That may be, but that is not a Rule motion. It can only be argued after an answer is provided. Item two. They raise the point that Bransford TR-

4 0 0 and D'Antonio fulfilled their obligation under the Inspection of Public Records. Again, that's not a -- a Rule (B) motion. Third. Turner lacks standing because the request was not denied. Again, that lacks -- it's not a (B) motion. Four. They raise the issue that relief sought is not authorized by the act, Inspection of Public Records Act. Again, that's not a (B) motion. The only (B) item that they raise is that the complaint should be dismissed for improper venue. In our response to the motion -- actually, it's a corrected response, but it's mentioned in the -- in our response we pointed out that the courts have already dealt with that issue under Elephant Butte Irrigation District v. Regents of New Mexico, and that was dealt with in some detail, and I directed a response to the motion to dismiss the complaint. And so we have asked the Court to make a ruling on each of those. But, more importantly, they are not an answer to the complaint, and we feel it appropriate that the Court should order the State Engineer to answer the complaint as required by the Rules of Civil procedure. And if I might add, your Honor, the State TR-

5 0 0 Engineer has a long history of failing to file answers to complaints and thereby diverting the attention of the Court from the merits of the case to a process issue, and that's what they've done here. They haven't answered it, but they're trying to circumvent the rules by introducing this motion -- this conflagrated motion for dismissal. THE COURT: All right. Mr. Turner, why is the first argument raised in the motion to dismiss that Mr. D'Antonio is not a proper party because he's not the custodian of record? Why is that not a proper (B)() item of dismissal? MR. TURNER: (B)(), your Honor, is failure to state a claim. THE COURT: That's right. MR. TURNER: And simply naming D'Antonio as the head of the agency, I think, is entirely proper. Besides, it's not the proper time in the process of the case to discuss that issue. First, they must respond with an answer. THE COURT: What's your authority for that, Mr. Turner? Where in the rules does it say that an answer has to be filed when there is a motion to dismiss pending on the same issue? MR. TURNER: The motion is not a responsive TR-

6 0 0 pleading until an answer has been filed. THE COURT: I understand. MR. TURNER: You can't plead the issues in the case until an answer has been presented. THE COURT: I understand that. But what a (B)() motion does is it tests the viability of your legal claims as stated in your complaint. You make a complaint against the State Engineer that there has not been a proper disclosure of information under the information of -- I'm sorry -- the Inspection of Public Records Act. Why is that not a (B)() motion as to the State Engineer? MR. TURNER: I'm not quite sure I understand your question, your Honor. Failure to state a claim. We stated the claim. The claim was that the State Engineer has not presented the permit. Now, that issue can only be raised after an answer has been provided by the State Engineer. THE COURT: Well, Mr. Turner, the problem you've got is that you only have one count in your complaint that is under the Inspection of Public Records Act which clearly relates to the custodian of record as the proper party. Where do you bring in the State Engineer on? MR. TURNER: He's the head of the agency, the TR-

7 0 0 chief executive of the agency. THE COURT: I understand that. But where in the Inspection of Public Records does it make the State Engineer a proper party? MR. TURNER: Your Honor, certainly years ago we had another suit before the Court on an Inspection of Public Records Act, and the same question came up. And I'm trying to recall what the argument was at the time. Oh, I know what the argument was. The argument was at the time that the State Engineer had not designated a custodian of public records. They'd gone for years with no custodian of public records, and we, as a result, filed suit against the State Engineer at that time. And at that time the State Engineer kind of fumbled and named several people as the custodian of public records. So now we finally determined that Bransford is the custodian of public records, but, nevertheless, that argument is not a (B) motion in my view. We have a -- we have -- you know, (B)() is failure to state a claim, and they may raise that issue later on, and they may have D'Antonio dismissed. But, nevertheless, it's not the proper time to answer or to file that motion. First, the answer is required. We have never seen an answer from the State Engineer on this -- in this entire case. And, as I say, they have a proclivity for filing TR-

8 0 0 these kinds of motions to convert the case from a trial on the merits to a trial on due process. And I've been through that all the way up to the Supreme Court, where they've done that under a recent case. The Supreme Court never issued a memorandum of opinion or anything regarding that case, and they just simply denied everything rather than ever approaching the merits of the case. And this is, again, what's happening here, in my view. THE COURT: Well, sir, Section --, Subsection C, clearly states "A custodian who does not deliver or mail a written explanation of denial within days after receipt of a written request for inspection is subject to an action to enforce the provisions of the Inspection of Public Records Act," et cetera. It doesn't say "the State Engineer." It says "the records custodian." So what is the State Engineer doing in this lawsuit? MR. TURNER: As I said, the State Engineer is the chief executive of the agency. We're not here to argue that issue. We're here to argue whether the State Engineer ever filed an answer, and they never did. THE COURT: No, sir. You haven't given me the authority or citation yet as to why the State Engineer has to file an answer when the State Engineer is not TR-

9 0 0 liable under the Inspection of Public Records Act. MR. TURNER: Well, we can argue that, and we may decide that D'Antonio does not have to appear as a defendant in the suit. But that still leaves the custodian of records, who is also named in the suit. What we want is an answer from the State Engineer. We want the Court to decide each one of these five issues to determine that their motion should be dismissed. It ought to be dismissed anyway because -- particularly this complaint should be dismissed for improper venue because that issue has already been well decided and by the Supreme Court. THE COURT: All right. Mr. Turner, let's go to the second item on the motion to dismiss from the State Engineer's office, and that is that the defendants have already fulfilled their obligations under the Inspection of Public Records Act. MR. TURNER: Well, they haven't. They haven't provided the permit. THE COURT: Well, they've told you that they cannot find the permit. MR. TURNER: Well, your Honor, I guess we're discussing each one of the items that they raised in their motion. I believe that's improper until they file an answer. TR-

10 0 0 THE COURT: All right. Tell me where in the Rules of Civil Procedure I'm required to have the State Engineer file an answer. MR. TURNER: It's under the Rules of Civil Procedure here in Rule No.. THE COURT: All right. MR. TURNER: "There shall be a complaint and an answer." That's Rule (A). "There shall." "Shall" is mandatory. THE COURT: What about the rule under "Motion to Dismiss" that "If there is a motion to dismiss, an answer does not need to be filed until the motion to dismiss is taken care of"? MR. TURNER: There is no authority for that. THE COURT: All right. Give me just a second. And, Mr. LeBlanc, if you have a response, you can go ahead and -- MR. TURNER: By the way, your Honor, if I might just interject here, Rule (A)() says "If the Court denies the motion or postpones its disposition until the trial on the merits, responsive pleadings again shall be filed." There is no responsive pleading to the complaint. THE COURT: All right. Mr. Turner, let me direct your attention to Rule -0, Subsection B, and TR-0

11 0 0 it's the first full paragraph after the seven numbered bases for filing a motion to dismiss. MR. TURNER: "A motion making any of these defenses shall be made before pleading." THE COURT: "If a further pleading is permitted." MR. TURNER: That's a (B) motion, your Honor, and the only (B) motion in these five issues raised by the State Engineer in their conflagrated motion is that their complaint should be dismissed for improper venue. That matter has already been disposed of by the Supreme Court. The State Engineer can be found in any place in the state. THE COURT: Let's leave that issue for a moment. There's some other issues as to whether or not you've actually been provided the information you've requested. Why isn't that a (B) motion that doesn't require the State Engineer to file an answer? MR. TURNER: I beg your pardon, your Honor. I missed that. THE COURT: All right. The State Engineer has stated that their position is they responded, they provided some information to you. It might not have been the information you wanted, but they still did respond. So it's not a denial of a request to inspect TR-

12 0 0 records. So, therefore, it is a case that is subject to dismissal for a failure to state a claim upon which relief can be granted. MR. TURNER: Well, your Honor, we had two hearings on this very point before Judge Valentine, and Judge Valentine finally realized that it wasn't everything that I'd asked for. I only asked for one item, and the State Engineer failed to provide that one item. THE COURT: What item was that, sir? MR. TURNER: That was the permit. THE COURT: And that was the permit from the 0 application? MR. TURNER: There was an Application No. that is a forgery and that was -- is in the files of the State Engineer. It is incomplete, and it's not something that was ever considered according to State Engineer Yoe in. THE COURT: In 0, sir? MR. TURNER: And let me just say this about a permit. The permit is an application that's converted into a permit by the approval of the State Engineer inscribed on the back of the application. Permit No. was approved by the State Engineer on the same day that it was applied for on January, 0. Now, the TR-

13 0 0 inability to find a permit may arise out of two factors. It may arise out of the fact that it was lost or, in fact, the permit was never issued, which is the case with this particular application. It's the only thing that I asked for. The letter accompanying the -- from the State Engineer accompanying the complaint said that "We cannot accept the declaration of Mr. Richard Cauble because a permit has been issued in the area that is not our policy to accept a declaration." The State Engineer's duty to accept a declaration is statutory. There is no rule or policy anywhere in writing that conforms with the State Engineer's statement. I mean, we file declarations -- I file declarations every year up here in the middle of the Rio Grande frequently, maybe several times a month. So whatever policy they're claiming exists does not exist throughout the state. So they did not respond to my question by providing a copy of the permit. THE COURT: Did they not tell you, Mr. Turner, they couldn't provide you with a copy of the permit because they couldn't locate it? MR. TURNER: Well, but they don't tell me why they couldn't locate it. Is it because it was never signed or is it because it was lost? Our position is that I provided a certified copy of that permit, I TR-

14 0 0 believe, to the Court issued by the State Engineer so that their statement that they don't have it is a misstatement, because that particular permit was presented in court on another lawsuit, I think, in 00. So they have the application, but they don't have the permit because it was never signed. So what we want is that there is a statement to that effect, but we shouldn't be arguing that case right now. The issue right now we should be arguing is whether or not an answer was required. THE COURT: Mr. Turner, where in the Inspection of Public Records Act is there a requirement for the State Engineer's office to provide a response or an explanation as to why a record can't be located? MR. TURNER: Well, I think it's the duty of the State Engineer to be cognizant of his own -- his own records. If they don't -- they do have the record. They do have a large book up in Santa Fe which contains all of those early applications. So they can tell me they can't find it, which is untrue because I've given you certified copy, or they can tell me why it isn't a permit. I mean, but until it's signed and it's made into a permit, I should be able to find it. And on their own statement on their letter that's in their complaint, they're not doing that. They say they have TR-

15 0 0 no permit. Well, darn it, I'm going to hold their feet to the fire. I do this work for historical purposes, and if they don't have it, they need to say it was never -- never approved or it was lost. And we know it's not lost because they have a certified copy of it in the court record. So we need an answer to the complaint. Do they have it or don't they have it? THE COURT: You're saying you've got a certified copy of Permit No. in some court records? MR. TURNER: Hang on a second. Well, it is -- it is -- I'm not sure what court it's in, but I believe we just recently sent it to your court. If I'm mistaken, I apologize. But we do have a copy of that. It may have been from a hearing -- a State Engineer hearing, but it was certified by the State Engineer that they had it, and yet in a recent communication I had, the letter says they don't have it. THE COURT: All I've got is an application from 0 for a Permit No.. MR. TURNER: Does it bear the State Engineer's certification stamp? THE COURT: No, sir. MR. TURNER: All right. Well, I know it was sent to someone. If you don't have it in your record, I TR-

16 0 0 would be happy to supplement the record. THE COURT: All right. If you would do that. MR. TURNER: Yes, sir. THE COURT: All right. Anything else, Mr. Turner? MR. TURNER: No. Again, we're just back to the -- back to the rules, which require -- it says "shall serve his answer." That's -- the rest of these things are motions that would come after the answer is filed. I just don't want to get sidetracked into a procedural matter. There is no answer filed. The State Engineer never filed an answer in several other lawsuits. THE COURT: All right. Thank you, Mr. Turner. All right. Mr. LeBlanc, let mere hear from you, please. How do you respond to Mr. Turner's concerns? And, by the way, I'll let you folks know that today's notice also included the motion to dismiss that was filed by the State Engineer's office. So go ahead, Mr. LeBlanc. MS. HERRMANN: Your Honor, you've got Sue Herrmann here. I was the one who was responsible for writing the motion to dismiss initially, so I thought it might be maybe easier if I did it. TR-

17 0 0 Basically, your Honor, our position is that this case is over regardless of any motion to dismiss under the statute, under --, et al. The State Engineer has turned over every document in our possession to Mr. Turner, which is what the law requires. I don't know -- and we had a discussion with Judge Valentine about clarifying our response that we've turned over everything and we don't have any more records to turn over, and we did that, and there is just nothing left to do. And anything -- I guess at this point I'll go out on a limb here and say that anything in the motion to dismiss is probably moot, but we can argue about each and every basis in the motion to dismiss, and I guess my problem is I just don't see the point. The relief that Mr. Turner is asking for is not relief that he's entitled to under the statute. And I'm a little bit confused why -- quite frankly, why -- I don't know what more we can do that we're required to do under the statute. THE COURT: All right. Ms. Herrmann, you're simply saying that you've complied with the Inspection of Public Records Act, you've provided everything and there is nothing more to provide? MS. HERRMANN: Well, that would be position No., Judge. TR-

18 0 0 THE COURT: Okay. What about this discussion by Mr. Turner of there must be a certified copy, that it has to either be produced or an explanation as to why it can't be produced? MS. HERRMANN: I am not aware of anything in the statute that says we have to come up with an explanation of why we don't produce something. If there was a denial, I would agree with him. If we said we are refusing to produce this document, then we would have to come up with a reason for our denial. The simple fact of the matter is that we've turned everything over, which is a little bit different. So, I mean, I don't think that under those circumstances we're required to come up with an explanation for why we don't have a document. THE COURT: Okay. And how do you respond to Mr. Turner's claim that there should be an answer filed, that the motion to dismiss is a conflagration, I believe was the word? MS. HERRMANN: Conflagration, yeah. THE COURT: Okay. How do you respond? MS. HERRMANN: Well, for starters, I mean, you know, under Rule (B) there are certain bases for a motion to dismiss, and I think that all of the grounds stated in the motion to dismiss were proper under Rule TR-

19 0 0 (B). So -- and, you know, quite frankly, I've been doing this for a long time, and, you know, it used to be under the old rule that you were required to raise all the grounds for dismissal in one motion under Rule (B). Now, that may not be the practice anymore, but I guess to the extent that it was my fault, I did it that way, so if I conflagrated -- conflagrated it, I think it was allowable under the rule, and definitely, you know, under normal civil practice a rule to dismiss or a motion to dismiss would be decided before an answer was required in any circumstances. So the other problem with this particular statute is that it's unlike a normal civil lawsuit where you would have -- you know, say in an accident you would have someone say, you know, "You ran into me," and the defendant saying, you know, "No, I didn't." You know, and then going on from there. This is a particular statute where the State is required to produce documents, and once the State does that, I think that the -- any obligation that we have, unless there is -- you know, unless there was a denial, I kind of think that this action is over. And when we had the hearing with Judge Valentine, he agreed and directed us to clarify our response to be, you know, very clear to Mr. Turner that TR-

20 0 0 we had given him all that we had, we don't have anything more to give him. We did that, and I kind of thought that at that point Mr. Turner and I had arrived at a settlement, that indeed this action was done. And then lo' and behold, what the next -- I submitted a draft order to him, which stated that, and I didn't get a response from him. So I submitted it to the Court, which -- and then there was a confusion with Judge Valentine, and he actually signed the order granting the motion to dismiss the case, not realizing that basically what it was, was it was a copy of an order -- a proposed order that I had submitted to Mr. Turner. So the next pleading that I got from Mr. Turner was a motion for findings and conclusions, which I don't -- which I pointed out to the Court that I didn't think that he was entitled to, and I can't remember now if it's Rule or about that you're not entitled to findings and conclusions when the Court, you know, grants the motion to dismiss. So I don't know what more we can do, Judge. I don't know what additional relief you could grant Mr. Turner. I'm perplexed. THE COURT: All right. Ms. Herrmann, you indicated -- MR. TURNER: Sir -- TR-0

21 0 0 THE COURT: Hang on, Mr. Turner. I have a question for Ms. Herrmann. Ms. Herrmann, you indicated that Judge Valentine had signed a draft order of dismissal. Is that in my file? Is that an official document? MS. HERRMANN: It was -- what happened, your Honor, was that I attached an -- my copy of an from me to Mr. Turner along with the proposed order to -- no. I'm trying to remember now. It's been so long, Judge, I can't remember what it was. I think it was a request -- it may have been a request for ruling on the motion -- on the motion to dismiss. And it was only done as an example. And, instead, I think that it was -- it was -- somewhere along the line, maybe in a fax transmission, it got separated, and Judge Valentine just signed it. THE COURT: Do you remember when he signed it? MS. HERRMANN: He had to retract it. You know, basically, it was not -- you know, I -- at that point in time I thought it was going to be an agreed order between me and Mr. Turner. THE COURT: All right. I don't see anything in the file dismissing this matter previously. MS. HERRMANN: It was an error, Judge. So it may have been totally withdrawn. TR-

22 0 0 THE COURT: Okay. I just want to make sure that I'm not sitting here listening to a hearing where this matter has already been dismissed previously. MS. HERRMANN: It was back in June, I think, of 00. MR. TURNER: I think -- Ms. Herrmann, if I might, I think what the judge saw there was a conflict over the order. He withdrew that draft order that you sent down to him. MS. HERRMANN: It was a mistake, Judge. THE COURT: Okay. All right. Anything else, Ms. Herrmann? MR. TURNER: Yes, your Honor. I think you can see from the discussion here the problems that we get into when one ignores the Rules of Civil Procedure. Rule says there is one form of action known as the civil action. Rule, a civil action is commenced by filing a complaint with the Court, which is exactly what we did. Rule says a defendant shall serve his answer within 0 days. And what I'm trying to do here is to eliminate the defects in following the rules because I've been subject to decisions against me, not on the merits of the case, but on the rules. So I'm simply trying to enforce an adherence to the rules the Supreme Court itself has passed and I think that it's the duty TR-

23 0 0 of the Court to follow. Now, I'm happy -- I thought we had sent the Court a certified copy of the application, and I will send that off to the Court today. But there is a certified copy of the application which is the original application, even though it's a forgery, in the files of the State Engineer. We've had the handwriting expert examine it. It's not signed by an officer of the United States Government, but yet it is the certified copy that is in the files of the State Engineer in Santa Fe. So we do have a letter, I believe, in which the State Engineer has said that they don't have the application, they don't have the permit. And I thought we'd sent this to the -- here it is. It's a letter from the State Engineer dated June, 00. It says, "This letter is an additional response to your requests dated January th and February th, 00, to inspect the public records for Application and Permit. All records of the Office of the State Engineer related to your application request have been produced. The office possesses no further records including 'Application ' or 'Permit ' that are responsive to your requests for inspection of public records." And we -- you know, we strenuously object to that letter because we do have a certified copy of the TR-

24 0 0 application. So we have the custodian of the records, but those records came straight out of the State Engineer's office and are in the court record. But, again, it's the adherence to these rules. I am quite certain that if I had not filed a motion to the complaint, that the Court would not find in my favor. So with that, I rest my case, your Honor. MS. HERRMANN: Judge, I'd just like to add we don't know what Mr. Turner -- what document Mr. Turner is referring to because he didn't send us a copy of whatever it is he's referring to. So we have no idea whether it was a document that came out of our records or what, and I suspect that it was. MR. TURNER: Well, you're right, Ms. Herrmann. Your Honor, you'll have to forgive me for having been a little bit deceptive, because I suspected the course that the State Engineer would take, which is why at the time I withheld the certified copy from the State Engineer's records. MS. HERRMANN: Well, that could be a kind of lying, Judge. MR. TURNER: It does. THE COURT: Well, this is what I'm going to do, folks. I'm looking at both of your motions, the motion to dismiss and the motion for order by issue. TR-

25 0 0 And what I understand under motion to dismiss is what it does is it tests the sufficiency of the claim. It tests the law of the claim, not the facts that support it. And as I review the complaint by Mr. Turner, it is a one count complaint simply indicating that there is a record that's not been produced by the Office of the State Engineer. There's a prayer of relief that requests a writ of mandamus to require the State Engineer to provide that document. There is also a prayer of relief to make findings of fact that if it's not produced, then to indicate in the finding that the permit never existed. There is subsequently a motion to dismiss filed on five grounds. The first ground is that D'Antonio, the State Engineer, is not a proper party because he's not a custodian of the record. The second ground is that the defendants have fulfilled their obligations under the Inspection of Public Records Act. No., that Mr. Turner lacks standing because there has been never been a request that's been denied. No. is that the relief requested by Mr. Turner is not authorized by the act. And, fifth, that there may be an improper venue based on where witnesses are located. TR-

26 0 0 As I understand the argument in the complaint, Mr. Turner was directed to the Office of the State Engineer in Las Cruces to review records. Mr. Turner made application for the request based on his status as a historian of the Lower Rio Grande adjudication. I am the water judge in this district. So, therefore, I believe that venue is proper. I'm going to dismiss the complaint. I feel that the complaint does not state a legal cause of action. Nowhere in the Inspection of Public Records Act do I see that the State Engineer is the custodian of record. Further, if the response by the State Engineer is they have provided everything that they've had, then the request is not denied. The fact that Mr. Turner may not like the response is not a basis under the Inspection of Public Records Act to bring the claim. I don't believe that -- since Mr. Turner has received all the documents provided by the State Engineer within its records, that he has standing at this point. And the relief requested by Mr. Turner to make certain findings to declare that the State Engineer either fraudulently provided or created a record or that a permit never existed is not the type of relief that is allowed under the Inspection of Public Records Act. That might be a claim, but it's not a claim under the Inspection of TR-

27 0 0 Public Records Act. Therefore, I will dismiss the action. Ms. Herrmann, I will ask that you prepare the form of order of this dismissal, that the findings that I've just made are incorporated into that order. I am going to ask that you draft the order, circulate a copy to Mr. Turner in accordance with the local rules within five days for his approval. If for whatever reason you cannot obtain Mr. Turner's approval or he objects to the form of the order, then you submit that order directly to the Court, and Mr. Turner can then submit his objections by written letter to the Court. Any questions, Ms. Herrmann? MS. HERRMANN: Judge, since we wanted it in five days, I won't be able to, I don't think, get a copy of the written -- you know, the transcript or tape. Could I just -- I think I have most of it, but I just wanted to ask you to repeat what you said about State Engineer D'Antonio, the first ground. THE COURT: Yes. I indicated that nowhere in the Inspection of Public Records Act does it designate D'Antonio, the State Engineer, as the custodian of the record. MS. HERRMANN: Okay. Thank you. THE COURT: All right. TR-

28 0 0 MR. TURNER: Your Honor, I was going to make the same comment, that we've gotten transcripts of court hearings in the past, and it's generally not possible to get them within five days. We'll call this afternoon and fax down the request, as we've done before, but I doubt very much we'll have it back within five days. THE COURT: All right. You know, if you need more than five days -- I'm not sure, Mr. Turner, what the point would be. I've made my findings, but what I'll do is I'll extend those five days into five business days. MR. TURNER: Well, we'll try to get that, your Honor. THE COURT: Okay. All right, folks. Anything else? Ms. Herrmann. MS. HERRMANN: Nothing from the State, your Honor. THE COURT: All right. Mr. Turner. MR. TURNER: Thank you, your Honor. THE COURT: All right. If there is nothing further, then we'll be adjourned, and I'll look forward to the order. Thank you very much for joining me by phone, counsel. (The proceedings concluded at : p.m.) TR-

29 0 0 STATE OF NEW MEXICO ) ) COUNTY OF DONA ANA ) I, SALLY A. RUBINO, Official Court Reporter for the Third Judicial District of New Mexico, hereby certify that I reported, to the best of my ability, the proceedings, CV-0-; that the pages numbered through, inclusive, are a true and correct transcript of my stenographic notes, and were reduced to typewritten transcript through Computer-Aided Transcription; that on the date I reported these proceedings, I was a New Mexico Certified Court Reporter. Dated at Las Cruces, New Mexico, this 0th day of November 0. e-signed SAR SALLY A. RUBINO New Mexico CCR No. Expires -- TR-

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