New Mexico Administrative Code › Title 19 - NATURAL RESOURCES AND WILDLIFE › Chapter 25 - ADMINISTRATION AND USE OF WATER - GENERAL PROVISIONS › Part 2 - HEARINGS UNIT PROCEDURES › Section 19.25.2.24 - EVIDENCE

Current through Register Vol. 35, No. 13, July 16, 2024
A. General. Each
				party is responsible for presenting evidence on the record. The New Mexico
				Rules of Evidence as applied in the district courts of the state shall
				generally apply. At the discretion of the hearing examiner, evidence not
				otherwise admissible under those rules of evidence may be admitted when
				necessary to ascertain relevant facts. Irrelevant, immaterial, or unduly
				repetitious evidence shall be excluded upon the determination of the hearing
				examiner.
B. Oral and written
				testimony under oath. All testimony received by the hearing examiner in formal
				hearings shall be made under oath, except matters officially noticed or entered
				into by stipulation. All witnesses must be present at the hearing unless a
				witness' presence at hearing is waived by the hearing examiner upon notice to
				and without objection from the parties. Written testimony shall be introduced
				as an exhibit and shall be on pages containing line and page numbers, and shall
				identify the witness and party for whom the witness is testifying, and the
				hearing caption and docket number. Written testimony shall be accompanied by a
				statement by the witness attesting to or verifying the contents and substance
				of the written testimony. Where written testimony has been filed in advance of
				the hearing, such testimony shall be adopted by the witness at hearing, subject
				to any necessary or appropriate corrections or amendments, and shall have the
				same force and effect as though it were stated orally by the witness and need
				not be repeated. The witness shall be subject to cross-examination on both oral
				and written testimony. Expert witnesses providing oral testimony shall also
				provide a detailed summary of their testimony in exhibit form, in the form of a
				written report or pre-filed testimony, in accordance with the scheduling
				order.
C. Stipulation as to facts
				and issues. The parties may, by stipulation in writing filed with the hearings
				unit or entered in the record at hearing, agree upon facts or issues involved
				in the controversy, which stipulation shall be binding upon the parties
				entering into the stipulation and may be regarded and used by the hearing
				examiner as evidence at the hearing. The hearing examiner may require proof or
				evidence of the facts stipulated to, notwithstanding the stipulation of the
				parties.
D. Exhibits. Documentary
				factual or legal information may be received in evidence in the form of
				accurate copies or duplicates of the original. The original plus two copies of
				any document or exhibit shall be filed with the hearings unit pursuant to the
				requirements of the scheduling order. A copy of the document or exhibit,
				including any expert report that forms the basis of a witness' testimony or is
				anticipated to be sponsored by a witness, must be served by the submitting
				party upon the other parties to the proceeding prior to hearing, in accordance
				with the scheduling order. To the extent practicable all exhibits, including
				those to be introduced on cross-examination, shall be marked before the start
				of hearing. All exhibits shall be marked numerically in the order of
				introduction by the moving party. Documentary and other physical evidence may
				be authenticated or identified by any reasonable means that shows that the
				evidence is what the proponent claims it to be. Upon admission by the hearing
				examiner of an exhibit, it shall be entered into the record. A party shall make
				reasonable efforts to limit the amount of voluminous evidence when preparing
				and offering exhibits. Where an exhibit is an excerpt, summary or abstract of a
				larger document or set of materials, other parties shall be given reasonable
				opportunity in advance of the hearing to examine the underlying source of the
				exhibit and the excerpt, abstract, or summary.
E. Administrative notice. Requests to take
				administrative notice of OSE files are discouraged. In lieu of requesting that
				administrative notice be taken of documents, parties are encouraged to submit
				those documents or portions of documents in the form of exhibits in accordance
				with the scheduling order. The hearing examiner may take administrative notice
				of matters of which the district courts of this state may take judicial notice.
				In addition, administrative notice may be taken of generally recognized
				technical or scientific facts, published reports of governmental and state
				agencies, site visits conducted by the hearing examiner with notice to parties,
				and studies and conclusions within the state engineer's specialized knowledge.
				In addition, the hearing examiner may take administrative notice on the record
				of the results of the hearings unit previous experience in similar situations
				and general information concerning a subject within the OSE's or hearings
				unit's expert knowledge. When a party requests that the hearing examiner take
				administrative notice of a fact, the noticed fact and its source shall be
				stated at the earliest possible time before or during the hearing and other
				parties, upon timely request, shall be provided an opportunity to show why
				notice should not be taken.
F.
				Additional evidence. At any stage of the proceeding the hearing examiner may
				require the production of further evidence upon any issue. Such evidence may,
				at the discretion of the hearing examiner, be in writing or presented orally.
				All parties will be given an opportunity to rebut or otherwise respond to such
				evidence submitted and cross-examine the witness under oath.
G. Objections. Any evidence offered in
				whatever form shall be subject to appropriate and timely objection. The
				evidence to be admitted at hearing shall be material and relevant to the issue.
				When objection is made to the admissibility of evidence, such evidence may be
				received subject to later ruling by the hearing examiner. The hearing examiner
				has discretion, with or without objection, to exclude inadmissible,
				incompetent, cumulative, or irrelevant evidence or order the presentation of
				such evidence discontinued. Parties objecting to the introduction of evidence
				shall briefly state the grounds of objection at the time such evidence is
				offered. Formal exceptions to rulings are not necessary and need not be
				taken.
H. Offers of proof. An offer
				of proof for the record may be made and shall consist of a statement of the
				substance of the evidence to which objection has been sustained. The hearing
				examiner may require offers of proof to be submitted in writing in question and
				answer form.
I. Rebuttal evidence.
				Rebuttal evidence is evidence that tends to explain, counteract, repel, or
				disprove evidence submitted by another party or by staff. Evidence that is
				merely cumulative or could have been more properly offered in the case in chief
				is not proper rebuttal evidence. The hearing examiner may permit or require
				rebuttal evidence to be submitted in prepared form in accordance with this rule
				prior to its introduction.