IN THE MATTER OF THE APPLICATION BY CHARLES R. BEEMAN FOR EXTENSION OF TIME AND THE APPLICATION BY CHARLES R. BEEMAN AND JULIA NELLIST OR BRIAN NELLIST FOR PERMIT TO CHANGE LOCATION OF WELL AND PLACE OR PURPOSE OF USE OF UNDERGROUND WATERS WITHIN THE ESTANCIA BASIN OF THE STATE OF NEW MEXICO

) :! I_·.::~ ) HU No. 12-039 - ~ '/ :: } ) OSE File No. E-1 058 AB into } E-6384 } } } }

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 to Dismiss on the Pleadings on

April 30, 2013 in the District I Office of the State Engineer. The parties appeared

as follows: Ms. Julia Nellist, Pro Se, appeared on behalf of Charles R. Beeman

and Brian Nellist (Beeman); and Ms. Jane Yee, 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-1 058, dated August 1, 1964. The water rights

under license E-1058 AB were subsequently severed from the move-from land

by approving OSE Permit to Change Point of Diversion and Place of Use of OSE

No. E-1 058 AB into E-6384 (1996 Permit), on September 30, 1996. The

approval of the 1996 Permit contained certain conditions which, among other

things, state that "Proof of Completion of Well(s) (PCW) shall be filed on or

before September 15, 2000." It is uncontested that Beeman neither filed a PCW

on or before September 15, 2000, nor did he place water to beneficial use under

the 1996 Permit. Beeman only filed with the WRD on March 28, 2012, 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 the

1996 Permit and an Application for Permit to Change Location of Well and Place

or Purpose of Use.

The WRD denied both the Application for Extension of Time and the

Application for Permit to Change Location of Well and Place or Purpose of Use

on May 15, 2012. By correspondence, dated June 14, 2012, the Applicants

requested reconsideration of the denial of the Application for Extension of Time

and the Application for Permit to Change Location of Well and Place or Purpose

of Use of Underground Water and the matter was set for Hearing.

During the Pre-Hearing Scheduling Conference on December 12, 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 each party would file a written brief on the issue central to this

matter. The WRD filed its Memorandum Brief on Central Issue and Motion to

Dismiss on the Pleadings on February 1, 2013, and Beeman filed a document

entitled Scheduling Order on January 29, 2013.

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. The 1996 Permit required that Beeman file a PCW on or before

September 15, 2000.

3. Beeman failed to file a PCW on or before September 15, 2000.

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4. Beeman did not place any water to beneficial use or submit a PBU under

the 1996 Permit.

5. Beeman did not file any Applications for Extension of Time from 1996 thru

March 28, 2012.

6. Beeman suffered a number of unfortunate and personal hardships, but

they did not excuse Beeman's failure to comply with the Conditions of

Approval of the 1996 Permit.

7. During that period of hardship, Beeman had ample opportunity over a

period of more than fifteen (15) years to apply for Extensions of Time,

complete the well as required under his permit, place water to beneficial

use under his Permit prior to filing the current Applications or, otherwise,

comply with his 1996 Permit Conditions of Approval.

8. The WRD properly denied Beeman's Application for Extension of Time in

that he failed to place 25% of the amount of water under his permit to

beneficial use as provided by the Estancia Underground Water Basin

Guidelines or provide a reasonable cause for delay.

9. The WRD properly denied Beeman's Application for Permit to Change

Location of Well and Place or Purpose of Use of Underground Water as

no water right had been established under the 1996 Permit.

10. Beeman's 1996 Permit should be cancelled for failure to comply with the

1996 Permit Conditions of Approval that he file a PCW by September 15,

2000, file a PBU or, otherwise, apply for extensions of time and place

water to beneficial use during the15 year period of time.

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THEREFORE, Beeman's Applications for Extension of Time and Permit to

Change Location of Well and Place or Purpose of Use are denied and Beeman's

Permit is cancelled. Further, WRD is ordered to map and identify the proper tract

of land associated with E-1 058 AB and indicate such land as having No Right.

"6-#, DONE this /1!__day of July, 2013

I ACCEPT AND ADOPT THE ORDER OF THE HEARING EXAMINER THIS

/&. -ri'l DAY OF July, 2013.

~e-~ SC T A. VERHINES, P.E. NEW MEXICO STATE ENGINEER

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PARTIES ENTITLED TO NOTICE

WATER RIGHTS DIVISION Jane Yee OSE, Administrative Litigation Unit P.O. Box 25102 Santa Fe, NM 87504-5102 Phone (505) 827-6181Fax (505) 827-3520 Attorney for Water Rights Division

APPLICANTS Julia Nellist Brian Nellist 102 S. Bluegrass Estancia, NM 87016 (505) 239-4588 Applicant and Power of Attorney for Charles Beeman

Charles Beeman P.O. Box 1413 Congress, AZ 85332-1413 (602) 540-8893

HU No. 12-039

I certify that a copy of the foregoing Report and RecoJnmendation of the Hearing Examiner was mailed to all the above-mentioned parties on the U rctay of July 2013.