N.M. Admin. Code § 19.8.35.12 - HOW A DECISION ON A VER REQUEST WILL BE MADE
A. The director must review the materials
submitted under
19.8.35.8 NMAC, comments received
under 19.8.35.11 NMAC, and any other
relevant, reasonably available information to determine whether the record is
sufficiently complete and adequate to support a decision on the merits of the
request. If not, the director must notify the requester in writing, explaining
the inadequacy of the record and requesting submittal, within a specified
reasonable time, of any additional information that the director deems
necessary to remedy the inadequacy.
B. Once the record is complete and adequate,
the director must determine whether the requester has demonstrated valid
existing rights. The decision document must explain how the requester has
satisfied or has not satisfied all applicable elements of the definition of
valid existing rights in
19.8.35.7 NMAC. It must contain
findings of fact and conclusions, and it must specify the reasons for the
conclusions.
C. Impact of property
rights disagreements. This subsection applies only when a request relies upon
one or more of the standards in Paragraph (2) of Subsection A of
19.8.35.7 NMAC, or Paragraphs (1)
and (2) of Subsection D of
19.8.35.7 NMAC.
(1) The director must issue a determination
that the requester has not demonstrated valid existing rights if the
requester's property rights claims are the subject of pending litigation in a
court or administrative body with jurisdiction over the property rights in
question. The director will make this determination without prejudice, meaning
that the requester may resubmit the request once the property rights dispute is
finally adjudicated. This paragraph applies only to situations in which legal
action has been initiated as of the closing date of the comment period under
Subsection A of
19.8.35.11 NMAC or Subsection B of
19.8.35.11 NMAC.
(2) If the record indicates disagreement as
to the accuracy of the requester's property rights claims, but this
disagreement is not the subject of pending litigation in a court or
administrative agency of competent jurisdiction, the agency must evaluate the
merits of the information in the record and determine whether the requester has
demonstrated that the requisite property rights exist under Paragraph (1) of
Subsection A of
19.8.35.7 NMAC, or Paragraphs (1)
or (2) of Subsection D of
19.8.35.7 NMAC of the definition
of valid existing rights as appropriate. The director must then proceed with
the decision process under
19.8.35.12 NMAC.
D. The director must issue a
determination that the requester has not demonstrated valid existing rights if
the requester does not submit information that the director requests under
Subsection B of
19.8.35.10 NMAC or Subsection A of
19.8.35.12 NMAC within the time
specified or as subsequently extended. The director will make this
determination without prejudice, meaning that the requester may file a revised
request at any time.
E. After making
a determination, the director must:
(1)
provide a copy of the determination, together with an explanation of appeal
rights and procedures, to the requester, to the owner or owners of the land to
which the determination applies, to the owner of the feature causing the land
to come under the protection of
19.8.2.201 NMAC, and, when
applicable, to the director with primary jurisdiction over the feature with
respect to the values that caused the land to come under the protection of
19.8.2.201 NMAC;
(2) the director will publish a notice of the
determination in a newspaper of general circulation in the county in which the
land is located; OSM will publish the determination, together with an
explanation of appeal rights and procedures, in the federal register if the
determination includes federal lands within an area listed in
19.8.2.201 NMAC.
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