Fourth Amended Case Fourth Amended Case Management Order - - PowerPoint PPT Presentation

Fourth Amended Case Fourth Amended Case Management Order Management Order Lower Rio Grande Basin Lower Rio Grande Basin Adjudication Adjudication

Jerald A. Valentine Jerald A. Valentine Presiding Judge, Presiding Judge, Lower Rio Grande Adjudication Lower Rio Grande Adjudication

Need to Expedite Adjudications Need to Expedite Adjudications

Pecos Adjudication Pecos Adjudication filed 1956 filed 1956 San Juan Adjudication San Juan Adjudication filed 1972 filed 1972 Lower Rio Grande Basin Lower Rio Grande Basin filed 1986 filed 1986

Due Process Due Process

• Rules mainly to ensure due process.

Rules mainly to ensure due process.

• Changes to rules naturally raise due

Changes to rules naturally raise due process concerns. process concerns.

• But unique circumstances of Stream

But unique circumstances of Stream Adjudication justify changes in procedure. Adjudication justify changes in procedure.

Duties of State Engineer Duties of State Engineer

Per Water Code: Per Water Code: Has general supervision of waters of the Has general supervision of waters of the state and of the measurement, state and of the measurement, appropriation, and distribution. appropriation, and distribution. Shall make hydrographic surveys and Shall make hydrographic surveys and investigations of each stream system investigations of each stream system

Courts Courts must Adjudicate must Adjudicate

• 1907 Water Code Requires State

1907 Water Code Requires State Engineer to file adjudication complaint in Engineer to file adjudication complaint in District Court for surface water. District Court for surface water.

• 1931 Groundwater Code adds

1931 Groundwater Code adds groundwater to the duties of the State groundwater to the duties of the State Engineer to manage the water resources Engineer to manage the water resources

• f the State
• f the State

Adjudications Adjudications -

• Who Controls

Who Controls

• The State Engineer has generally

The State Engineer has generally determined the pace of litigation. determined the pace of litigation.

• The Court must manage and control

The Court must manage and control the pace to expedite adjudications. the pace to expedite adjudications.

• But, no specialized rules for Stream

But, no specialized rules for Stream Adjudications. Adjudications.

Terminology in the Case Terminology in the Case Management Order (CMO) Management Order (CMO)

• Hydrographic Survey

Hydrographic Survey

• General Adjudication Complaint

General Adjudication Complaint

• Claimant’s Notice of Water Right Claim

Claimant’s Notice of Water Right Claim

• Offer of Judgment

Offer of Judgment

• Objection To State’s Offer of Judgment

Objection To State’s Offer of Judgment

• Monthly Stream System Issue and

Monthly Stream System Issue and Expedited Inter Se Report Expedited Inter Se Report

Hydrographic Survey Hydrographic Survey

• A field survey to identify who is using

A field survey to identify who is using water in the stream system. Required water in the stream system. Required by Water Code. by Water Code.

• The survey reports on each water

The survey reports on each water right and identifies water users and right and identifies water users and their addresses. their addresses.

General Adjudication Complaint General Adjudication Complaint

• The pleading that initiates the stream

The pleading that initiates the stream adjudication. adjudication.

• It does not identify individual defendants

It does not identify individual defendants

• Defendants are: “All those who claim a

Defendants are: “All those who claim a right to use the waters of the Lower Rio right to use the waters of the Lower Rio Grande Basin Stream System” Grande Basin Stream System”

Claimant’s Notice of Claimant’s Notice of Water Right Claim Water Right Claim

A form response that Claimants make A form response that Claimants make after receiving the summons and after receiving the summons and General Adjudication Complaint General Adjudication Complaint

Offer of Judgment Offer of Judgment

After completion of the hydrographic After completion of the hydrographic survey and an errors correction survey and an errors correction process, the State Engineer submits process, the State Engineer submits an Offer of Judgment to Claimant on an Offer of Judgment to Claimant on each element of the water right. each element of the water right.

Objection To State’s Offer of Objection To State’s Offer of Judgment Judgment

Claimant’s response to Offer of Claimant’s response to Offer of Judgment. Judgment. Puts the water right in issue and Puts the water right in issue and initiates judicial action to determine initiates judicial action to determine the Water Right the Water Right

Monthly . . . Report Monthly . . . Report

• Stream System Issues

Stream System Issues

• Expedited Inter Se Proceedings

Expedited Inter Se Proceedings Lists notices and other filed Lists notices and other filed documents in lieu of actual service documents in lieu of actual service required by Rule 1 required by Rule 1-

• 005 NMRA for:

005 NMRA for:

Inter Se Proceedings Inter Se Proceedings

• Disputes between Claimants after the

Disputes between Claimants after the water right owner and the State have water right owner and the State have resolved any disputes. resolved any disputes.

• Typically, individual Inter Se Proceedings

Typically, individual Inter Se Proceedings do not commence until do not commence until ALL ALL Claimants Claimants have resolved their differences with the have resolved their differences with the State and the Court enters a Sub State and the Court enters a Sub-

• file order

file order

Expedited Inter Se Proceedings Expedited Inter Se Proceedings

• An Inter Se proceeding that the court

An Inter Se proceeding that the court conducts BEFORE all sub conducts BEFORE all sub-

• file matters

file matters between the State and all Claimants between the State and all Claimants have been resolved. have been resolved.

• These involve significant matters that

These involve significant matters that affect most Claimants. affect most Claimants.

Stream System Issue Stream System Issue

Any issue, the resolution of which Any issue, the resolution of which could affect all or a significant could affect all or a significant number of claimants. number of claimants.

Rule 4 NMRA, Process Rule 4 NMRA, Process -

• 1

1

• E. (1) Process shall be served in a
• E. (1) Process shall be served in a

manner reasonably calculated to manner reasonably calculated to apprise the defendant of the existence apprise the defendant of the existence and and pendency pendency of the action and to

• f the action and to

afford a reasonable opportunity to afford a reasonable opportunity to appear and defend. appear and defend.

Rule 4 NMRA, Process Rule 4 NMRA, Process -

• 2

2

• “

“K (1) Service by Publication shall be K (1) Service by Publication shall be published in a manner most likely published in a manner most likely to give the defendant notice of the to give the defendant notice of the pendency pendency of the action,

• f the action,

(2) and shall contain. . . (b) the (2) and shall contain. . . (b) the name of the defendant.” name of the defendant.”

Rule 4 NMRA, Process Rule 4 NMRA, Process -

• 3

3

“J. Court may order service by any “J. Court may order service by any

• ther method or combination of
• ther method or combination of

methods that is reasonably calculated methods that is reasonably calculated to apprise the defendant of the to apprise the defendant of the existence and pendency of the action existence and pendency of the action and afford a reasonable opportunity and afford a reasonable opportunity to appear and defend.” to appear and defend.”

Service of Process Service of Process

Rule 1 Rule 1-

• 004 NMRA

004 NMRA

• 1. Mail with Return Receipt
• 1. Mail with Return Receipt
• 2. Publication (Name of each party
• 2. Publication (Name of each party

defendant identified). defendant identified).

CMO Changes to Rule 1 CMO Changes to Rule 1-

• 004

004

1.

• 1. First Class Mail

First Class Mail

• 2. Publication (individual names
• 2. Publication (individual names

not listed) not listed)

• 3. Public Announcements
• 3. Public Announcements

Service of Filed Documents Service of Filed Documents Rule 1 Rule 1-

• 005 NMRA

005 NMRA

Mail or deliver to other parties. Mail or deliver to other parties. Where “Unusually large number of Where “Unusually large number of defendants” Rule 1 defendants” Rule 1-

• 005 permits some

005 permits some modifications. modifications.

CMO Changes to Rule 1 CMO Changes to Rule 1-

• 005

005

For: Stream System Issues Proceedings For: Stream System Issues Proceedings Expedited Inter se Proceedings: Expedited Inter se Proceedings:

• No mailing or delivery of filed

No mailing or delivery of filed documents documents

• Service limited to listing on the Monthly

Service limited to listing on the Monthly Report. Report.

Complaint Complaint Rules 1 Rules 1-

• 007, 1

007, 1-

• 008 NMRA

008 NMRA

1 1-

• 007: Complaint.

007: Complaint. 1 1-

• 008: A short and plain statement

008: A short and plain statement

• f the claim showing that pleader
• f the claim showing that pleader

is entitled to relief. is entitled to relief.

CMO Changes to Rules 1 CMO Changes to Rules 1-

• 007

007 and 1 and 1-

• 008

008

The “Complaint” is bifurcated and The “Complaint” is bifurcated and served at different times. served at different times.

• 1. General Adjudication Complaint
• 1. General Adjudication Complaint
• 2. Offer of Judgment
• 2. Offer of Judgment

Answer Answer Rules 1 Rules 1-

• 007, 1

007, 1-

• 008 NMRA

008 NMRA

Answer: Answer:

• 1. Short and plain statement of defense:
• 1. Short and plain statement of defense:

2.

• 2. Admit or deny the averments

Admit or deny the averments (admitted when not specifically (admitted when not specifically denied) denied) No answer No answer-

• Default Judgment

Default Judgment

CMO Changes to 1 CMO Changes to 1-

• 007, 1

007, 1-

• 008

008

Answer bifurcated, served at different times Answer bifurcated, served at different times 1.

• 1. Claimant’s Notice of Water Right Claim

Claimant’s Notice of Water Right Claim (Form) (Form) 2.

• 2. Objection to Offer of Judgment

Objection to Offer of Judgment Default is to Water Right Determined by Default is to Water Right Determined by the Hydrographic Survey the Hydrographic Survey

Getting to Finished? Getting to Finished?