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BEFORE THE NEW MEXICO STATE ENGINEER • ' r ' • ~a ; ·~ "''I

IN THE MATTER OF THE APPLICATION BY MOHSEN AND HENGAMEH RAISSY FOR EXTENSION OF TIME IN WHICH TO PERFECT AN APPROPRIATION OF UNDERGROUND WATER WITHIN THE UNDERGROUND WATERS OF THE ESTANCIA BASIN OF THE STATE OF NEW MEXICO

) Hearing No. 12-037 ) ) OSE File No. E-194-B and ) E-194-C ) ) )

REPORT AND RECOMMENDATION OF THE HEARING EXAMINER

This matter came before the State Engineer's designated Hearing Examiner at a

Hearing on Water Rights Division's Motion for Summary Judgment and Applicant

Mohsen and Hengameh Raissy's Response to Water Rights Division's Motion for

Summary Judgment and Cross-Motion for Summary Judgment, held on April 30, 2013,

at the District I Office of the State Engineer. The parties appeared as follows: Ms.

Catherine Robinson, ~sq., represented Applicants, Mr. Mohsen and Hengameh Raissy

(Raissy); and, Mr. Peter Robertson, Esq., represented the Office of the State Engineer's

(OSE) Water Rights Division (WRD).

BACKGROUND

The water rights related to the above-captioned matter derive from Certificate and

License No. E-194, dated August 10, 1962, which were issued to Nellie Roach to

appropriate 137.5 acre-feet of water per annum from Well E-194 in the SW ~ SW ~

SW ~ of Section 1, Township 10 North, Range 8 East, NMPM for the irrigation of 55

acres of land in the SW ~ of Section 1. Ownership of the licensed water rights changed

on June 6, 1995 upon a Change of Ownership conveying water rights appurtenant to

fifty-five acres of land from Nellie Roach to Mohsen and Hengameh Raissy (Raissy) and

Javid Jalili. The licensed water rights were subsequently modified upon the approval of

Applications for Permit to Change Location of Well and Place of Use of Underground

Waters to OSE Permit Nos. E-194, E-194-A, E-194-B, and E-194-C on January 16,

1998 (1 998 Permits) under the names of Mohsen and Hengameh Raissy (Raissy) and

Javid Jalili (Jalili). Upon approval, four (4) Permits (1998 Permits) were issued to Raissy

and Jalili. The 1 998 Permits allowed for the division of irrigation water rights

appurtenant to fifty-five (55) acres of land stemming from OSE License No. E-194,

equally among four (4) quarters of the SW ~of Section 1, Township 10 North, Range 8

East, NMPM for continued irrigation and domestic purposes. An existing well served

OSE Permit E-1 94 and, therefore, a PCW was not required under that Permit, but OSE

Permit Nos. E-194-A, E-194-B and E-194-C required that Proof of Completion of Well

(PCW) and Proof of Application of Water to Beneficial Use (PBU) be submitted to the

Office of the State Engineer on or before January 15, 2002.

Permitees, Raissy and Jalili, filed an Application for Extension of Time in which to

Perfect an Appropriation of Underground Water for OSE Permit Nos. E-194, E-194-A,

E-1 94-B and E-1 94-C on January 14, 2002, one day before the PCW and PBU were

due. The WRD approved the Application for Extension of Time on October 24, 2002,

and stated, "[t]his Application ... will be administered per Estancia Underground Water

Basin Guidelines adopted June 20, 2002. The first extension of time shall include proof

that at least 25% of the permitted amount has been beneficially used. After a 3-year

period, if rights have not been fully placed to benefial [sic] use, a final 3-year extension

may be approved if at least 50% of amount permitted has been beneficially used ."

Pursuant to the 2002 Approval of the Application for Extension of Time and under the

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Estancia Underground Water Basin Guidelines (Guidelines), PCW and PBU were due

on January 15, 2005. Through a series of Changes of Ownership filed with the State

Engineer after 2003, OSE Permit Nos. E-1 94 and E-1 94-A are now owned by Jalili1 and

OSE Permit Nos. E-194-B and E-194-C are now owned by Raissy.

In this matter, on July 12, 2011 and July 18, 2011, the WRD requested Raissy to file

Applications for Extension of Time for the time period between January 15, 2006 thru

January 15, 2013. Raissy filed an Application for Extension of Time in Which to Perfect

an Appropriation of Underground Water in the Estancia Basin in the State of New

Mexico for OSE Permit Nos. E-1 94-B and E-1 94-C on August 16, 2011. The WRD

denied the Application for Extension of Time on August 19, 2011. By correspondence,

dated September 2, 2011, the Applicants requested reconsideration of the denial of the

Application for Extension of Time or, in the alternative, schedule the matter for a

hearing.

During the Pre-Hearing Scheduling Conference on December 11, 2012, the Parties

agreed to not set a schedule for discovery, the exchange of witness lists, exhibits,

motion and objections and the close of discovery; rather the Parties agreed that the

WRD would file a dispositive motion (Motion for Summary Judgment) by February 15,

2013 and the Applicants would Respond and the WRD would reply. In conformance

with the Scheduling Order, dated December 19, 2012, the WRD filed its Motion for

Summary Judgment on February 15, 2013. Raissy filed a Response in Opposition to

Water Rights Division's Motion for Summary Judgment and Cross-Motion for Summary

1 Counsel for Raissy represented that the WRD had approved Jalili's most recent Application for Extension of Time for OSE Permit No. E-194-A. Counsel, however, did not elaborate and it is not possible to clearly determine from the record whether Jalili took additional steps to comply with the Conditions of Approval for OSE Permit E-194-A such as filing a PCW and if such approval is relevant to this proceeding.

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Judgment on March 7, 2013. The WRD did not file a Response to the Applicant's

Cross-Motion for Summary Judgment.

Having considered the briefing and oral argument and being fully advised in the

premises, the Hearing Examiner finds the following:

1. The State Engineer has jurisdiction of the parties and subject matter.

2. In 1998, OSE License E-194 was converted into four (4) Permits, OSE Permit

Nos. E-1 94, E-1 94-A and OSE Permit Nos. E-1 94-8 and E-1 94-C through the

approval of the 1 998 Application.

3. Both a PCW and a PBU were required under the Conditions of Approval for OSE

Permit Nos. E-1 94-8 and E-1 94-C on or before January 15, 2002.

4. Neither a PCW nor a PBU were filed for OSE Permit Nos. E-194-8 and E-194-C

on or before January 15, 2002.

5. Neither a PCW nor a PBU were filed for OSE Permit Nos. E-1 94-8 and E-1 94-C

in accordance with the Extension of Time Conditions of Approval, dated October

24, 2002, which required that 25% of the water right be placed to beneficial use

by January, 2005.

6. Through a series of Change of Ownership filed with the WRD, ownership of OSE

Permit No. E-1 94 and E-1 94-A (April, 2003) transferred to Jalili and OSE Permit

No. E-1 94-8 and E-1 94-C was transferred to Raissy in May, 2003 and May, 2005

respectively.

7. Raissy failed to comply with the Conditions of Approval for OSE Permit Nos. E-

1 94-8 and E-1 94-C by failing to file both a PCW and a PBU and the Water Rights

Division also properly denied Raissy's 2012 Application for Extension of Time in

accordance with the Guidelines.

THEREFORE, Raissy's Application for Extension of Time was properly denied

for failing to comply with the conditions of OSE Permit Nos. E-1 94-8 and E-1 94-C and

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the Permit shall be cancelled. Further, the WRD is ordered to map and identify the

proper tracts of land associated with OSE Permit Nos. E-194-B and E-194-C and

indicate such land as having No Right.

lh DONE this /(;; day of July, 2013

I ACCEPT AND ADOPT THE ORDER OF THE HEARING EXAMINER THIS f{s:, I-tt

DAY OF July, 2013.

~cu::t::__ SCOTT A. VERHINES, P .E. NEW MEXICO STATE ENGINEER

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PARTIES ENTITLED TO NOTICE

WATER RIGHTS DIVISION Peter Robertson OSE, Administrative Litigation Unit P.O. Box 25102 Santa Fe, NM 87504-5102 Phone (505) 827-6123 Fax (505) 827-3520 Attorney for Water Rights Division

APPLICANTS Catherine Robinson Law & Resource Planning Associates, P .C. Albuquerque Plaza 201 Third Street NW Suite 1750 Albuquerque, NM 87102 (505) 346-0998 Attorney for Mohsen and Hengameh Raissy

HU No. 12-037

I certify that a copy of the foregoing Report and \r~mmendation of the Hearing Examiner was mailed to all the above-mentioned parties on the "tlay of July 2013.

<,.-- ·-~) (\ =- ' D .1 0 \U j \.0~\) '\

Reyna Aragon, Admt 1strator