New Mexico Administrative Code
Title 19 - NATURAL RESOURCES AND WILDLIFE
Chapter 25 - ADMINISTRATION AND USE OF WATER - GENERAL PROVISIONS
Part 2 - HEARINGS UNIT PROCEDURES
Section 19.25.2.24 - EVIDENCE

A. General. Each party is responsible for presenting evidence on the record. The New Mexico Rules of Evidence as applied in the district courts of the state shall generally apply. At the discretion of the hearing examiner, evidence not otherwise admissible under those rules of evidence may be admitted when necessary to ascertain relevant facts. Irrelevant, immaterial, or unduly repetitious evidence shall be excluded upon the determination of the hearing examiner.

B. Oral and written testimony under oath. All testimony received by the hearing examiner in formal hearings shall be made under oath, except matters officially noticed or entered into by stipulation. All witnesses must be present at the hearing unless a witness' presence at hearing is waived by the hearing examiner upon notice to and without objection from the parties. Written testimony shall be introduced as an exhibit and shall be on pages containing line and page numbers, and shall identify the witness and party for whom the witness is testifying, and the hearing caption and docket number. Written testimony shall be accompanied by a statement by the witness attesting to or verifying the contents and substance of the written testimony. Where written testimony has been filed in advance of the hearing, such testimony shall be adopted by the witness at hearing, subject to any necessary or appropriate corrections or amendments, and shall have the same force and effect as though it were stated orally by the witness and need not be repeated. The witness shall be subject to cross-examination on both oral and written testimony. Expert witnesses providing oral testimony shall also provide a detailed summary of their testimony in exhibit form, in the form of a written report or pre-filed testimony, in accordance with the scheduling order.

C. Stipulation as to facts and issues. The parties may, by stipulation in writing filed with the hearings unit or entered in the record at hearing, agree upon facts or issues involved in the controversy, which stipulation shall be binding upon the parties entering into the stipulation and may be regarded and used by the hearing examiner as evidence at the hearing. The hearing examiner may require proof or evidence of the facts stipulated to, notwithstanding the stipulation of the parties.

D. Exhibits. Documentary factual or legal information may be received in evidence in the form of accurate copies or duplicates of the original. The original plus two copies of any document or exhibit shall be filed with the hearings unit pursuant to the requirements of the scheduling order. A copy of the document or exhibit, including any expert report that forms the basis of a witness' testimony or is anticipated to be sponsored by a witness, must be served by the submitting party upon the other parties to the proceeding prior to hearing, in accordance with the scheduling order. To the extent practicable all exhibits, including those to be introduced on cross-examination, shall be marked before the start of hearing. All exhibits shall be marked numerically in the order of introduction by the moving party. Documentary and other physical evidence may be authenticated or identified by any reasonable means that shows that the evidence is what the proponent claims it to be. Upon admission by the hearing examiner of an exhibit, it shall be entered into the record. A party shall make reasonable efforts to limit the amount of voluminous evidence when preparing and offering exhibits. Where an exhibit is an excerpt, summary or abstract of a larger document or set of materials, other parties shall be given reasonable opportunity in advance of the hearing to examine the underlying source of the exhibit and the excerpt, abstract, or summary.

E. Administrative notice. Requests to take administrative notice of OSE files are discouraged. In lieu of requesting that administrative notice be taken of documents, parties are encouraged to submit those documents or portions of documents in the form of exhibits in accordance with the scheduling order. The hearing examiner may take administrative notice of matters of which the district courts of this state may take judicial notice. In addition, administrative notice may be taken of generally recognized technical or scientific facts, published reports of governmental and state agencies, site visits conducted by the hearing examiner with notice to parties, and studies and conclusions within the state engineer's specialized knowledge. In addition, the hearing examiner may take administrative notice on the record of the results of the hearings unit previous experience in similar situations and general information concerning a subject within the OSE's or hearings unit's expert knowledge. When a party requests that the hearing examiner take administrative notice of a fact, the noticed fact and its source shall be stated at the earliest possible time before or during the hearing and other parties, upon timely request, shall be provided an opportunity to show why notice should not be taken.

F. Additional evidence. At any stage of the proceeding the hearing examiner may require the production of further evidence upon any issue. Such evidence may, at the discretion of the hearing examiner, be in writing or presented orally. All parties will be given an opportunity to rebut or otherwise respond to such evidence submitted and cross-examine the witness under oath.

G. Objections. Any evidence offered in whatever form shall be subject to appropriate and timely objection. The evidence to be admitted at hearing shall be material and relevant to the issue. When objection is made to the admissibility of evidence, such evidence may be received subject to later ruling by the hearing examiner. The hearing examiner has discretion, with or without objection, to exclude inadmissible, incompetent, cumulative, or irrelevant evidence or order the presentation of such evidence discontinued. Parties objecting to the introduction of evidence shall briefly state the grounds of objection at the time such evidence is offered. Formal exceptions to rulings are not necessary and need not be taken.

H. Offers of proof. An offer of proof for the record may be made and shall consist of a statement of the substance of the evidence to which objection has been sustained. The hearing examiner may require offers of proof to be submitted in writing in question and answer form.

I. Rebuttal evidence. Rebuttal evidence is evidence that tends to explain, counteract, repel, or disprove evidence submitted by another party or by staff. Evidence that is merely cumulative or could have been more properly offered in the case in chief is not proper rebuttal evidence. The hearing examiner may permit or require rebuttal evidence to be submitted in prepared form in accordance with this rule prior to its introduction.