Current through Register Vol. 35, No. 6, March 26, 2024
A. Powers of hearing examiner. In the absence
of any limiting order, a hearing 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
following powers:
(1) to explain the events
and requirements of the hearing process, including the use of electronic
service, notice and posting on the OSE website;
(2) to establish a procedural schedule for
the administrative proceedings and to modify procedural orders on his own
motion or on motion of a party when necessary or appropriate;
(3) to schedule and conduct conferences and
preliminary hearings when necessary or appropriate to: identify substantive
issues for hearing, set a discovery schedule and hearing date, establish an
official service list, address other preliminary matters, encourage settlement,
and rule on preliminary motions;
(4) to order parties to hold appropriate
settlement conferences before or during any hearing, provided that the hearing
examiner shall not take part in any settlement conference unless all parties
agree to his participation;
(5) to
dismiss parties or actions;
(6) to
apply the procedures of this rule and to grant such waivers to those procedures
as he deems necessary or appropriate;
(7) to issue subpoenas to produce materials
and to require persons to appear;
(8) to provide for appropriate methods of
discovery;
(9) to administer oaths
and affirmations;
(10) to ensure
that all relevant issues relating to impairment, conservation of water within
the state and the public welfare of the state are considered during the
evidentiary hearing and to request, receive and make part of the record all
evidence (testimony and exhibits) determined necessary to decide the issues and
rule upon all objections and motions;
(11) to regulate the conduct and course of
the hearing consistent with due process, including the scheduling, recessing,
reconvening, and adjournment thereof;
(12) to cause a complete record of the
proceedings to be made in accordance with the requirement of NMSA 1978, Section
72-2-17(C);
(13) to make a report
and recommendation to the state engineer based upon the record of the
proceedings; and
(14) to take such
other action as may be necessary and appropriate to the discharge of these
duties, consistent with the statutory authority or other authorities under
which the state engineer functions and with the rules and policies of the
OSE.
B. Limitation of
authority. The state engineer may limit the authority of the hearing examiner
to the specific consideration of enumerated issues or the performance of
certain acts, such as presiding as directed at hearing, pursuant to a limiting
order.
C. Subpoenas. In accordance
with NMSA 1978, Section
72-2-14, the
hearing examiner 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. If a subpoena is issued,
the return of service shall be filed with the hearings unit promptly after
service, and shall include a certificate or affidavit attesting to
service.
D. Substitution of
parties. Substitution of parties may be permitted upon motion and for good
cause, at the hearing examiner's discretion.
