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ZDi3 JUL i 6 Pfi 3: 3g
I : .; .:::.R
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.
3
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
4
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
5
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