NM Stat § 70-3A-5 (2021)
2021 New Mexico Statutes|Chapter 70 - Oil and Gas|Article 3A - Gathering Line Land Acquisition|Section 70-3A-5 - Scope of review by the hearing officer.

The report of the hearing officer shall include findings concerning the following: A. when the route of easement is in issue, a full consideration of all other access available to the mineral developer, including the cost of construction for alternative routes, safety, obstructions and any other economic and noneconomic factors; B. the cost of acquisition or any contract to acquire comparable easements if the transaction or contract was freely made in good faith within a reasonable time before or after the date the petition was filed or other credible evidence of the market value of the easement to be acquired; and C. amount of damages sustained by the property owner for: (1) loss of agricultural production and income; (2) lost value of improvements; (3) cost for surface reclamation including revegetation, soil treatment, reshaping of topography, drainage systemizing, waste disposal, removal of any equipment, structures and obstacles and the return of the property to its approximate original contour; (4) inconvenience to the property owner in use of his property; and (5) burden on the property owner of continued inspection and repair of the gathering line by the mineral developer. In no case shall the total amount of compensation or damages awarded pursuant to Subsections B and C of this section be greater than one-half of the sum of the reasonable cost of surface reclamation plus twice the market value of the easement to be acquired as determined in Subsection B of this section. History: Laws 1988, ch. 26, § 5. ANNOTATIONSStandard of review. — Where a party maintained that the hearing officer made findings incorrectly under Subsections B and C of this section, the determination of whether the hearing officer's decision was in accordance with the Gathering Line Land Acquisition Act was a question of law to be decided by the appellate court de novo. El Paso Field Servs. Co. v. Montoya Sheep & Cattle Co., 2003-NMCA-113, 134 N.M. 375, 77 P.3d 279. Compensation and damages are distinct. — To include elements of damages from Subsection C of this section in the determination of the compensation due under Subsection B of this section is contrary to the statute. El Paso Field Servs. Co. v. Montoya Sheep & Cattle Co., 2003-NMCA-113, 134 N.M. 375, 77 P.3d 279. Findings regarding both compensation and damages are required. — This section requires the hearing officer to make findings concerning both the amount of compensation due under Subsection B and the amount of damages due under Subsection C. El Paso Field Servs. Co. v. Montoya Sheep & Cattle Co., 2003-NMCA-113, 134 N.M. 375, 77 P.3d 279. Annual payments. — Nothing in the Gathering Line Land Acquisition Act precludes the award of damages in the form of annual payments, but if a hearing officer awards damages to be paid annually, the hearing officer must calculate the present value of the amount awarded. El Paso Field Servs. Co. v. Montoya Sheep & Cattle Co., 2003-NMCA-113, 134 N.M. 375, 77 P.3d 279. Statutory cap as written is meaningless. — Applying the statutory cap in Subsection C of this section as written is meaningless because, where surface reclamation costs are zero, applying the cap exactly as written eliminates any further recovery for damages under Subsection C. A more reasonable interpretation is that damages under Subsection C cannot exceed the sum of half the surface reclamation costs plus twice the market value. El Paso Field Servs. Co. v. Montoya Sheep & Cattle Co., 2003-NMCA-113, 134 N.M. 375, 77 P.3d 279.