NATURAL RESOURCES AND WILDLIFE ADMINISTRATION AND USE OF WATER - GENERAL PROVISIONS HEARING PROCEDURES

This rule was filed as 19 NMAC 25.2. TITLE 19 CHAPTER 25 PART 2 NATURAL RESOURCES AND WILDLIFE ADMINISTRATION AND USE OF WATER - GENERAL PROVISIONS HEARING PROCEDURES 19.25.2.1 ISSUING AGENCY: Office of the State Engineer. 19.25.2.2 SCOPE: These rules govern the conduct and determination of the administrative hearings required or allowed by law, other than the public rule making hearings held pursuant to Section 72-2-8 NMSA 1978 (1997 Repl.), whether instituted by order of the office of the state engineer (OSE) or by the filing of an application, protest, aggrieval or other pleading. The rules contained in this Part are intended to supplement Section II(G) of the Rules and Regulations Governing the Appropriation and Use of the Surface Waters of the State of New Mexico and Article 3 of the Rules and Regulations Governing the Drilling of Wells and Appropriation and Use of Ground Water. The rules in this Part shall apply and govern in those hearing cases in which a hearing examiner has not been appointed, or hearing deposits have not been requested or received, prior to the effective date of the rules. References to costs and transcription of hearings in the surface water and ground water rules and regulations shall apply to those cases in which a hearing examiner has been appointed, or hearing deposits have been requested or received, prior to the effective date of these rules. Sections 17 and 18 of the rules in this Part shall govern in other proceedings. These rules shall not be construed so as to enlarge, diminish, modify or otherwise alter the jurisdiction, powers or authority of the state engineer or the substantive rights of any person. 19.25.2.3 STATUTORY AUTHORITY: Sections 72-2-8, 72-2-12 through 17, 72-5-6, 72-5-23, 72-5-24, 72-5-25, 72-6-6, 72-12-3, 72-12-7, 72-12-14, 72-12-22, 72-12-23, 72-12-24 and 72-12A-7 NMSA 1978 (1997 Repl.). 19.25.2.4 DURATION: Permanent. 19.25.2.5 EFFECTIVE DATE: March 31, 1998 [unless a later date is cited at the end of a section]. 19.25.2.6 OBJECTIVE: The objective of this Part is to establish additional rules and procedures that govern proceedings before the OSE to ensure the expeditious and orderly handling of all administrative matters consistent with the requirements of due process. 19.25.2.7 DEFINITIONS: [RESERVED] [Recompiled 12/31/01] 19.25.2.8 LIBERAL CONSTRUCTION: This Part shall be liberally construed to carry out its purpose. 19.25.2.9 PROCEDURES: The hearing process shall conform to the requirements of due process and Sections 72-2-13, 72-2-14, 72-2-15, and 72-2-17(B) NMSA 1978 (1997 Repl.). Discovery and prehearing conferences shall proceed and be conducted in accordance with the rules of civil procedure and the rules of evidence shall generally be followed. Evidence not admissible under those rules may be admitted, when necessary to ascertain relevant facts, if it is of a type commonly relied upon by reasonably prudent men in the conduct of their affairs. When a hearing will be expedited and the interests of the parties will not be substantially prejudiced, the hearing examiner may request or allow any part of the evidence to be received in writing. 19.25.2 NMAC 1

19.25.2.10 AUTHORITY AND DUTIES OF THE HEARING EXAMINER: Pursuant to Section 72-2-12 NMSA 1978 (1997 Repl.),and in the absence of any limiting order, an examiner appointed to hear any particular case shall have the power to regulate the proceedings before him and to perform all acts and take all measures necessary to conduct such hearing, including the authority to administer oaths and affirmations; to explain the events and requirements of the hearing process; to explain telephone procedures to participants at the start of the hearing when applicable; to ensure that all relevant issues are considered during the hearing; to request, receive and make part of the record all evidence (testimony and exhibits) determined necessary to decide the issues subject to such objections as may be imposed; to regulate the conduct and course of the hearing consistent with due process; to ensure an orderly hearing; to cause a complete record of the proceedings to be made in accordance with the requirements of 72-2-17(C) NMSA 1978 (1997 Repl.); and based upon the record, to make a report and recommendations to the state engineer. In any given case, the state engineer may limit the authority of the hearing examiner to the consideration of certain issues or the performance of certain acts pursuant to a limiting order issued by the state engineer in the order of appointment of hearing examiner. 19.25.2.11 HEARINGS UNIT COMMUNICATIONS: Hearing examiners will report directly to the state engineer and will be assigned to an independent hearings unit. There shall be no ex-parte communications with the hearing examiner or the state engineer. All motions, requests for clarification and other pleadings shall be filed with the administrator of the hearings unit and served by the moving party upon all other parties to a given matter. The hearing examiner shall issue orders in response to such pleadings in accordance with established procedures, and copies of each order shall be provided to all parties. Procedural questions may be addressed by an individual party to the hearing unit's administrator. 19.25.2.12 DISQUALIFICATION: A hearing examiner is disqualified and shall excuse himself or herself in a proceeding in which the hearing examiner's impartiality might reasonably be questioned. Any party, by motion to the state engineer, may request the disqualification of the hearing examiner for lack of impartiality. A motion to disqualify a hearing examiner must be filed on or before the tenth day after the prehearing conference. 19.25.2.13 PREHEARING FUNCTION: The hearings unit shall establish internal procedures for its scheduling and for determining the priority of the application, and for the timing of hearings. 19.25.2.14 HEARING SCHEDULE: Pursuant to Section 72-2-17 NMSA 1978 (1997 Repl.), the hearing examiner shall provide a planning hearing/prehearing conference within sixty (60) days from the date of filing of the request for hearing, at which the hearing examiner and parties shall address and schedule issues of settlement, discovery, motions and all other matters precedent to the final hearing. In the absence of a specific finding and order from the hearing examiner, all discovery and motions shall be completed within one hundred and fifty (150) days from the date of the prehearing conference, and the final hearing shall be held within one hundred and eighty (180) days from the date of the prehearing conference. All timelines are subject to the exception for "good cause" set forth at Section 72-2-17(A) NMSA 1978 (1997 Repl.). 19.25.2.15 PREHEARING CONFERENCE: A prehearing conference shall be held prior to the final hearing either upon request of a party or upon notice by the hearing examiner. This conference will be to narrow issues, agree on a discovery schedule, eliminate or resolve other preliminary matters and to encourage settlement. The hearing examiner shall issue a prehearing order establishing the discovery and motions schedule along with a statement of the issues requiring determination. 19.25.2.16 LOCATION OF HEARINGS: All hearings and conferences shall be held as determined by the hearing examiner. At the request of any of the parties, and upon the stipulation of the parties and with the approval of the hearing examiner, any conferences or hearings apart from the final hearing may be held telephonically. 19.25.2 NMAC 2

19.25.2.17 COSTS/FEES: Pursuant to Section 72-2-6(J) NMSA 1978 (1997 Repl.), the OSE shall require a nonrefundable payment of twenty five dollars ($25.00) from each party to a hearing (including the applicant and each protestant). The payment shall be submitted at least five working days before the first scheduled prehearing conference. If an applicant fails to make the payment as required, the state engineer shall deny the application. If there is one protestant and he fails to make the payment as required, the state engineer will vacate the hearing and act on the application as though no protest had been filed. If at least one protestant has timely submitted the required payment, the hearing examiner will proceed to bring the matter to hearing and at the prehearing conference the hearing examiner shall identify those protestants failing to submit the payment as required and dismiss their protests. The payments shall be applied toward the general costs related to the hearing process. 19.25.2.18 RECORDING/TRANSCRIPTION: The oral proceedings may be tape recorded or transcribed by the OSE. In accordance with Section 72-2-17(B)(5)NMSA 1978 (1997 Repl.), the oral proceedings shall be transcribed upon the request of any party. The party or parties requesting that the proceedings be transcribed shall arrange for the appearance by a stenographer and pay the cost of the transcription directly to the preparer of the transcript. In the event that the proceedings are transcribed upon the hearing examiner's own request, the parties may obtain copies of the transcript upon payment of a fee of twenty-five cents ($.25) per page. Copies of taped proceedings may be obtained by the parties upon payment of $5.00 per tape. 19.25.2.19 REPRESENTATION: Parties may be represented by an attorney or may appear pro se, at an administrative hearing concerning surface water and ground water rights before the state engineer. A party that is a corporate entity, acequia or organization may appear pro se at an administrative hearing through an authorized official, employee or member of the entity. Said entities that wish to appear pro se must file with the OSE at the inception of its participation in the proceeding a written authorization from the organization naming the official, employee or member who will appear on behalf of the entity, along with certification that: (1) after full consideration, the contemplated pro se appearance will not involve a conflict of interest with other interests held within the organization, including interests of individual members; (2) the organization (including all of its members) subsequently shall not assert the pro se appearance as a defense to the state engineer's final hearing decision; and (3) the organization shall carefully monitor and supervise the actions of the pro se spokesperson to ensure the orderly conduct of the hearing proceedings and compliance with applicable rulings during the course of the proceedings. Except as otherwise noted above, a party may not be represented by anyone who is not an attorney licensed in New Mexico. 19.25.2.20 SUBPOENAS: In accordance with Section 72-2-14 NMSA 1978 (1997 Repl.), the hearing examiner(s) has the authority to issue subpoenas and to require the production of evidence in any proceeding before the state engineer, including all hearings, conferences and discovery proceedings. 19.25.2.21 NOTICE: In accordance with Section 72-2-17(B)(4) NMSA 1978 (1997 Repl.), administrative notice may be taken of all judicially cognizable facts (i.e., all facts that may be noticed by a judge). In addition, notice may be taken of generally recognized technical or scientific facts, published reports of governmental and state agencies and studies and conclusions within the state engineer's specialized knowledge. 19.25.2.22 EVIDENCE: Three (3) copies of any document or exhibit must be filed with the hearing unit pursuant to the schedule and requirements of the prehearing order. A copy of the document or exhibit must be served by the submitting party upon the other parties to the proceeding. 19.25.2.23 DOCKET MANAGEMENT: The hearing examiner may establish conferences at regular times and places and at intervals sufficiently frequent for the efficient management of the proceedings which include prehearing conferences, motions requiring notice and hearing, status reviews, and all other matters relevant to the 19.25.2 NMAC 3

achievement of a productive and speedy decision making process. The hearing examiner, on such notice as the hearing examiner considers reasonable, may issue orders for the advancement, conduct and hearing of actions. In addition, to expedite the proceedings, the hearing examiner may issue orders for submission and determination of motions without oral hearing upon brief written statements in support or opposition. 19.25.2.24 TRAILING DOCKET: To assure the efficient and speedy conduct of pending hearings, the hearing examiner may call up several matters for action on an established hearing date, for the purpose of addressing the pending issues in as many of the separate hearings as time may allow. In general, the state engineer will address matters in the order of the priority of the relevant application, although exceptions may be made in order to avoid harm that could occur as a result of delay in any given matter. 19.25.2.25 CONTINUANCE/POSTPONEMENT: A scheduled hearing may be continued with notice, prior to the hearing, or may be recessed during the hearing and reconvened at a later date. A statement of any continuance will be made a part of the record. Grounds for continuance may include, but are not limited to, the requirement of deference to the settlement of prior applications, and/or limitations with regard to OSE resources for the purposes of investigating or evaluating the application and the claims of the parties. A party may request postponement(s) of the scheduled final hearing subject to determination by the hearing examiner. Grounds for postponement may include, but are not limited to, the unavailability of expert witnesses, or the inability of a party to complete technical reports and exhibits in a timely manner. 19.25.2.26 EXPEDITED HEARING: The parties or the OSE may request an expedited hearing. The request must be in writing and state in detail the reasons why an expedited hearing is necessary. Granting an expedited hearing is at the discretion of the hearing examiner. In cases where it is deemed appropriate, the state engineer may require an expedited hearing in the order appointing the hearing examiner. 19.25.2.27 GROUPHEARING ON MULTIPLE APPLICATIONS: A hearing examiner may respond to a series of individual requests for hearings by conducting a single group hearing. Group hearing procedures apply only to multiple applications where related issues of impairment, conservation or public welfare are among the issues being raised. In all group hearings, the regulations governing individual hearings are followed. Each party is permitted to present his/her own case or to be represented by his/her own attorney. If a group hearing is arranged, any party has the right to withdraw from the group hearing and proceed with an individual hearing. 19.25.2.28 ADMINISTRATIVE RECORD: In accordance with Section 72-2-17(C) NMSA 1978 (1997 Repl.), the administrative record shall include, at a minimum, all pleadings, motions, intermediate rulings; evidence received or considered a statement of matters officially noticed, questions and offers of proof, objections and rulings thereon; any proposed findings submitted, the transcript or tape of the oral proceedings; as well as any decision, opinion, or report by the state engineer or hearing examiner conducting the hearing. 19.25.2.29 PROPOSED FINDINGS OF FACT AND RECOMMENDATIONS: The hearing examiner may request that the parties, after the hearing, submit proposed findings of fact and recommendations which will become part of the administrative record. 19.25.2.30 EXAMINER'S RECOMMENDATIONS: Following each hearing, the examiner will submit findings and recommendations to the state engineer as part of the administrative record submitted to the state engineer for final decision. Subject to exception for good cause, the examiner's findings and recommendations shall be submitted to the state engineer within thirty (30) days from the last date set for the receipt of proposed findings or other post-hearing pleadings, or within thirty (30) days from the close of the hearing, whichever is later. 19.25.2 NMAC 4

19.25.2.31 FINAL DECISION: Within ninety (90) days after submission and consideration of the hearing examiner's report and recommendations, except for good cause shown, the state engineer will enter his decision or request the hearing examiner to reconvene the matter in order to take further evidence or testimony. The state engineer may reconvene the hearing if the state engineer determines that further hearings are necessary. The state engineer's decision will be mailed to all parties or if legally represented, to their counsel of record, by certified mail, return receipt, within ten (10) days after entry of the decision. 19.25.2.32 FAILURE TO SUPPORT ADMINISTRATIVE ACTION: Should the hearing examiner determine that the applicant has failed to meet his/her obligation to defend the application by timely participation in the administrative hearings process, the hearing examiner shall deny the application. Should the hearing examiner determine that a protestant has failed to meet its burden of timely participation in the administrative hearings process, the hearing examiner shall dismiss the protest. In the event that all protests are dismissed, the hearing examiner may remand the application to the OSE water rights division for action. HISTORY OF 19.25.2 NMAC: [RESERVED] 19.25.2 NMAC 5