Fourth Amended Case Fourth Amended Case Management OrderManagement Order

Lower Rio Grande Basin Lower Rio Grande Basin AdjudicationAdjudication

Jerald A. ValentineJerald A. ValentinePresiding Judge, Presiding Judge,

Lower Rio Grande AdjudicationLower Rio Grande Adjudication

Need to Expedite AdjudicationsNeed to Expedite Adjudications

Pecos Adjudication Pecos Adjudication filed 1956filed 1956

San Juan Adjudication San Juan Adjudication filed 1972filed 1972

Lower Rio Grande Basin Lower Rio Grande Basin filed 1986filed 1986

Due ProcessDue 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 EngineerDuties 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 systeminvestigations of each stream system

CourtsCourts 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 of the Stateof the State

AdjudicationsAdjudications -- Who ControlsWho 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 ComplaintGeneral Adjudication ComplaintClaimant’s Notice of Water Right ClaimClaimant’s Notice of Water Right ClaimOffer of JudgmentOffer of JudgmentObjection To State’s Offer of JudgmentObjection To State’s Offer of JudgmentMonthly Stream System Issue and Monthly Stream System Issue and Expedited Inter Se ReportExpedited Inter Se Report

Hydrographic SurveyHydrographic 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 ComplaintGeneral Adjudication Complaint

The pleading that initiates the stream The pleading that initiates the stream adjudication.adjudication.

It does not identify individual defendantsIt 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 ClaimWater 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 ComplaintGeneral Adjudication Complaint

Offer of JudgmentOffer 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 JudgmentJudgment

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 Rightthe Water Right

Monthly . . . ReportMonthly . . . Report

Stream System IssuesStream System IssuesExpedited Inter Se ProceedingsExpedited 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 1required by Rule 1--005 NMRA for:005 NMRA for:

Inter Se ProceedingsInter 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 ALLALL Claimants Claimants have resolved their differences with the have resolved their differences with the State and the Court enters a SubState and the Court enters a Sub--file order file order

Expedited Inter Se ProceedingsExpedited Inter Se Proceedings

An Inter Se proceeding that the court An Inter Se proceeding that the court conducts BEFORE all subconducts 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 IssueStream 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 -- 11

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 pendencypendency of the action and to of 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 -- 22

““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 pendencypendency of the action,of 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 -- 33

“J. Court may order service by any “J. Court may order service by any other method or combination of other 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 ProcessService of ProcessRule 1Rule 1--004 NMRA004 NMRA

1. Mail with Return Receipt1. Mail with Return Receipt

2. Publication (Name of each party 2. Publication (Name of each party defendant identified).defendant identified).

CMO Changes to Rule 1CMO Changes to Rule 1--004004

1. 1. First Class MailFirst Class Mail

2. Publication (individual names 2. Publication (individual names not listed)not listed)

3. Public Announcements3. Public Announcements

Service of Filed DocumentsService of Filed DocumentsRule 1Rule 1--005 NMRA005 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 1defendants” Rule 1--005 permits some 005 permits some modifications.modifications.

CMO Changes to Rule 1CMO Changes to Rule 1--005005

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

No mailing or delivery of filed No mailing or delivery of filed documentsdocuments

Service limited to listing on the Monthly Service limited to listing on the Monthly Report.Report.

Complaint Complaint Rules 1Rules 1--007, 1007, 1--008 NMRA008 NMRA

11--007: Complaint.007: Complaint.

11--008: A short and plain statement 008: A short and plain statement of the claim showing that pleader of the claim showing that pleader is entitled to relief.is entitled to relief.

CMO Changes to Rules 1CMO Changes to Rules 1--007 007 and 1and 1--008008

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

1. General Adjudication Complaint1. General Adjudication Complaint

2. Offer of Judgment2. Offer of Judgment

Answer Answer Rules 1Rules 1--007, 1007, 1--008 NMRA008 NMRA

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

2.2. Admit or deny the avermentsAdmit or deny the averments(admitted when not specifically (admitted when not specifically denied)denied)

No answerNo answer-- Default JudgmentDefault Judgment

CMO Changes to 1CMO Changes to 1--007, 1007, 1--008008

Answer bifurcated, served at different timesAnswer bifurcated, served at different times

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

2.2. Objection to Offer of JudgmentObjection to Offer of Judgment

Default is to Water Right Determined by Default is to Water Right Determined by the Hydrographic Surveythe Hydrographic Survey

Getting to Finished?Getting to Finished?