Current through Register Vol. 35, No. 18, September 24, 2024
A. Who may file. A person may file a petition
for award of costs and expenses including attorneys' fees that person has
reasonably incurred as a result of his participation in an administrative
review under the act that results in the director issuing a final order
pursuant to 19.8.12.1200 or 19.8.12.1203 NMAC.
B. Where to file; time for filing. The person
seeking an award for costs and expenses shall file a petition for an award of
costs and expenses including attorneys' fees with the director within 45 days
after such order's receipt. A person who fails to timely file the petition may
waive the right to such an award.
C. Contents of petition. A petition filed
under this section shall include the person's name from whom costs and expenses
are sought with the following submitted in support of the petition:
(1) an affidavit setting forth in detail all
costs and expenses including attorneys' fees the person reasonably incurred
for, or in connection with, the person's participation in the
proceeding;
(2) receipts or other
evidence of such costs and expenses; and
(3) where attorneys' fees are claimed,
evidence concerning the hours expended on the case, the customary commercial
rate of payment for such services in the area and the individual's performing
the services experience, reputation and ability.
D. Answer. Any person served with a copy of
the petition shall have 30 days from the petition's service within which to
file an answer to the petition.
E.
Who may receive an award. The director may award appropriate costs and expenses
including attorneys' fees as follows:
(1)
from the permittee to any person if the person initiates or participates in any
administrative proceeding reviewing enforcement actions upon a finding that a
violation of the act, rules or permit has occurred, or that an imminent hazard
existed, and the district court or director determines that the person made a
substantial contribution to the issues' full and fair determination, except
that a person's contribution who did not initiate a proceeding must be separate
and distinct from the contribution a person initiating the proceeding
made;
(2) from the mining and
minerals division to a person, other than the permittee or his representative,
who initiates or participates in a proceeding under the act, prevails in whole
or in significant part and achieves at least some degree of success on the
merits, upon a finding that such person substantially contributed to the
issues' full and fair determination, except that a person's contribution who
did not initiate a proceeding must be separate and distinct from the
contribution a person initiating the proceeding made;
(3) from the mining and minerals division to
a permittee where the permittee demonstrates that the director issued an order
of cessation, a notice of violation or an order to show cause why the director
should not suspend or revoke the permit in bad faith and for the purpose of
harassing or embarrassing the permittee;
(4) from a person to a permittee where the
permittee demonstrates that the person initiated a proceeding or participated
in such a proceeding in bad faith for the purpose of harassing or embarrassing
the permittee; or
(5) from a person
to the mining and minerals division where it demonstrates that a person applied
for review or any party participated in such a proceeding in bad faith and for
the purpose of harassing or embarrassing the mining and minerals
division.
F. Awards. An
award under these sections may include all costs and expenses, including
attorneys' fees and expert witness fees, a party reasonably incurred as a
result of initiation or participation in a proceeding under the act; and all
costs and expenses, including attorneys' fees and expert witness fees, a party
reasonably incurred in seeking the award.
G. Appeals. Any person aggrieved by a
director's decision concerning the award of costs and expenses in an
administrative proceeding under this act may appeal such award to the district
court as set forth in 19.8.12.1202 NMAC.
