N.M. Admin. Code § 19.8.36.15 - PROCEEDINGS BEFORE THE DIRECTOR

In the hearings provided for in Subsection 3 J and Section 4 of this Rule 79-1 [now Subsection J of 19.8.36.10 NMAC and 19.8.36.11 NMAC] and in Laws, 1979, Chapter 291, as being adjudicatory in nature:

A. the director may designate a hearing officer to take evidence at the hearing; the hearing officer so designated will preside and will have authority to direct the hearing, to administer oaths and to make such rulings on evidence and procedures as may be necessary.

B. the director shall maintain a verbatim record of the hearing and the record in the proceeding shall include:

(1) all notices, pleadings, motions and intermediate rulings;

(2) evidence received or considered;

(3) a statement of matters officially noticed;

(4) questions and offers of proof, objections, and rulings thereon;

(5) proposed findings and conclusions; and

(6) the director's decision.

(7) the costs of a transcript, if required by the director, shall be paid by the applicant.

C. irrelevant, immaterial or unduly repetitious evidence shall be excluded; the rules of evidence applicable in an administrative adjudicatory proceeding shall be followed; the director shall give effect to the rules of privilege recognized by law; objections to evidentiary offers may be made and shall be noted in the record; subject to these requirements, when a hearing of the parties will not be prejudiced substantially, any part of the evidence may be received in written form.

D. the parties to the proceeding and the director may call and examine witnesses, introduce exhibits, cross-examine witnesses and submit rebuttal evidence.

E. official notice may be taken of all facts of which judicial notice may be taken and of other facts within the specialized knowledge of the director, but whenever the director takes official notice of a fact, the noticed fact shall be stated before or during the hearing, and a party shall, on timely request, be afforded an opportunity to show to the contrary.

F. prior to the entry of the director's decision, the parties shall be afforded a reasonable opportunity to submit proposed findings of fact and conclusions of law.

G. the director must hear the evidence or read the record; the decision shall include a statement of findings and conclusions upon all material issues of fact and of law, together with the appropriate order, sanction, relief or denial thereof; findings of fact shall be based exclusively on the evidence presented and on matters officially noticed.

H. within five days after the decision is rendered, the director shall give a copy thereof to the operator.

I. the effective date of any notice or order issued pursuant to Section 25 of the Surface Mining Act by the director may be stayed by the commission during the statutory period within which an appeal might be filed, and in the event of an appeal therefrom during the pendency of such an appeal, the commission may, in the exercise of its discretion, require a supersedeas bond in an amount sufficient to alleviate any environmental injury to the affected land.

Notes

N.M. Admin. Code § 19.8.36.15

Recompiled 6/4/02