BEFORE THE NEW MEXICO STATE ENGINEER IN THE MATIER OF THE APPLICATION OF AQUIFER SCIENCE, LLC FOR A PERMIT TO APPROPRIATE GROUNDWATER WITHIN THE SANDIA UNDERGROUND WATER BASIN IN THE STATE OF NEW MEXICO Hearing No. 10-020 OSE File No. 8-2618 APPLICANT AQUIFER SCIENCE, LLC'S OBJECTIONS TO PROTESTANT NEW MEXICO ENVIRONMENTAL LAW CENTER EXHIBITS In accordance with the Hearing Examiner's October 22,2012 Order Granting Motion 10 Extend Deadlines/or Close of Discovery and Motions and Objections, Applicant Aquifer Science, LLC ("Aquifer Science") submits the following objections to Protestant New Mexico Environmental Law Center's ("NMELC") specified exhibits for the reasons set forth below. I. OBJECTIONS TO EXHIBITS OFFERED BY NMELC'S EXPERT WITNESS REID BANDEEN. Aquifer Science objects to numerous exhibits offered by NMELC's expert witness. Reid Bandeen. In summary, these objections are as follows: NMELC Description Reason for Objection Exhibit No. NMELC·I Technical Memorandum from Reid F. Sandeen, • Expert qual ifications re: P.G., Truchas Hydrologic Associates, Inc. to R. legal maners, OSE Bruce Frederick. New Mexico Environments I Law water right Center regarding Application No. $-2618- administration, and Diversion of 1,500 acre-feet per year from the Sandia climatology. See Rules Basin (June 14,201 I) 11.702 and 11·703 NMRA. • Foundation required. See Rules 11·702 and 11·703 NMRA. NMELC·9 [AJ Cover Letter to Judge Traub enclosing OSE's • Foundation required Brief-in-ehief as well as OSE's Proposed Findings • Not relevant. Rule 11- and Conclusions in Consolidated Case Nos. CV 86- 401 NMRA. 08189 and CV 87·07756 • Cumulative. Rule 11- 403 NMRA • Hearsay. Rules 11-801 and 11·802 NMRA
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Extend Deadlines/or Close ofDiscovery and Motions and ... · • Hearsay. Rules 11-801 and 11·802 NMRA ... See Rule 11·702 NMRA; see also Rule 11-703NMRA; see also Andrews v. U.S.
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BEFORE THE NEW MEXICO STATE ENGINEER
IN THE MATIER OF THE APPLICATIONOF AQUIFER SCIENCE, LLC FOR A PERMITTO APPROPRIATE GROUNDWATER WITHINTHE SANDIA UNDERGROUND WATER BASININ THE STATE OF NEW MEXICO
Hearing No. 10-020
OSE File No. 8-2618
APPLICANT AQUIFER SCIENCE, LLC'S OBJECTIONS TO PROTESTANTNEW MEXICO ENVIRONMENTAL LAW CENTER EXHIBITS
In accordance with the Hearing Examiner's October 22,2012 Order Granting Motion 10
Extend Deadlines/or Close ofDiscovery and Motions and Objections, Applicant Aquifer
Science, LLC ("Aquifer Science") submits the following objections to Protestant New Mexico
Environmental Law Center's ("NMELC") specified exhibits for the reasons set forth below.
I. OBJECTIONS TO EXHIBITS OFFERED BY NMELC'S EXPERT WITNESSREID BANDEEN.
Aquifer Science objects to numerous exhibits offered by NMELC's expert witness. Reid
Bandeen. In summary, these objections are as follows:
NMELC Description Reason for ObjectionExhibit No.NMELC·I Technical Memorandum from Reid F. Sandeen, • Expert qual ifications re:
P.G., Truchas Hydrologic Associates, Inc. to R. legal maners, OSEBruce Frederick. New Mexico Environments ILaw water rightCenter regarding Application No. $-2618- administration, andDiversion of 1,500 acre-feet per year from the Sandia climatology. See RulesBasin (June 14,201 I) 11.702 and 11·703
NMRA.
• Foundation required.See Rules 11·702 and11·703 NMRA.
NMELC·9 [AJ Cover Letter to Judge Traub enclosing OSE's • Foundation requiredBrief-in-ehief as well as OSE's Proposed Findings • Not relevant. Rule 11-and Conclusions in Consolidated Case Nos. CV 86- 401 NMRA.08189 and CV 87·07756 • Cumulative. Rule 11-
403 NMRA
• Hearsay. Rules 11-801and 11·802 NMRA
• Violates due processand Rule 11403NMRA
[Bl Proposed Order on Motion for Reconsideration • Foundation requiredRe: OSE Case No. S-1065 Ihrough 5-1065-5-15 • Not relevant
• Cumulative• Hearsay• Violates due process
and Rule 11-403NMRA
[C) aSE's Proposed Findings and Conclusions in • Foundation requiredConsolidated Case Nos. CV 86-08189 and CV 87- • Not relevant07756 • Cumulative
• Hearsay• V iolales due process
and Rule 11403NMRA
[OJ Judgment in Case No. CV 86-08189 • Foundation required• Not relevant• Cumulative• Hearsay• Violates due process
and Rule 11403NMRA
NMELC-IO Stale Engineer's Brief·in-Chief. Second Judicial • Foundation requiredDistrict State ofNew Mexico, County of Bemalillo, • Not relevantConsolidated Case Nos. CV 86-08189 and CV 87- • Cumulative07756 • Hearsay
• Violates due processand Rule 11403NMRA
NMELC-II Memorandum from Core to Saavedra Re: 5-1 • Foundation requiredthrou8h S-6 Enlgd. (May 5, 1997) • Not relevant
• Cumulative• Hearsay• Violates due process
and Rule 11403NMRA
NMELC-12 Memorandum from J.P. Frost to Kristofer Knutson • Foundotion requiredRe: Bemalillo County Application 5-2361 (Apr. 25. • Not relevant2005) • Cumulative
• Hearsay
2
• Violates due processand Rule 11-403NMRA
NMELC-13 Overpeck and Udall, 2010, Dry Times Ahead, 328 • Foundation requiredScience 1642 (June 25, 2010)
NMELC-14 John R. D'Antonio, P.E., State Engineer, The Impact • Foundation requiredofClimate Chonge on New Mexico's WaleI' Supplyand Ability (0 Manage WaleI' Resources, NewMexico Office ortlle Slate Engineer, Santa Fe. NewMexico (July 2006)
NMELC·15 U.S. Bureau of Reclamation, Reclamation Climate • Foundation requiredChange aod Water 2011 (Apr. 201 I)
A. Mr. Bandeen is Not Qualified as an Expert Regarding Legal Matters, OSEWater Rights Administration, or Climatology.
NMELC-l, Mr. Bandeen's initial expert report, contains opinions Mr. Bandeen is not
qualified to render. Mr. Bandeen's educational training and work experience are in the areas of
hydrology and geology. See Bandeen Depo. Tr. at 4-6. To be qualified 10 provide experl
testimony in this case, Mr. Bandeen's opinions must be based on his specific areas of expertise.
See Rule 11·702 NMRA; see also Rule 11-703 NMRA; see also Andrews v. U.S. Sleel,2011-
NMCA-032. II. 149 N.M. 461, 250 PJd 887; see also Sewell v. Wi/son, 97 N.M. 523, 528, 641
P.2d 1070, 1075 (CI. App. 1982) (explaining Ihal "10 give scientific or specialized opinion
testimony, an expert witness must be qualified to do so by knowledge, skill, training, or
education).
Mr. Sandeen is not qualified to render any opinions regarding legal matters or OSE water
rights administration. Mr. Sandeen not an attorney and he has no legal training whatsoever. See
Sandeen Depo. Tr. at 4-6. As such, he is not qualified to provide opinions regarding any legal
precedent or delenninalions eslablished in exhibits NMELC-9 througb 12. Furtber, he is not
qualified to render opinions regarding the aSE's water rights administration process. procedures,
3
or detenninations. Aquifer Science objects to Mr. Bandeen's opinions on legal maMers or OSE
water rights administration in NMELC-I, Mr. Bandeen's initial report. See Rule 11-703 NMRA.
In his expert report (NMELC-I), Mr. Bandeen provides opinions regarding climatology
through his use of exhibits NMELC-13 through NMELC-15. However, Mr. Bandeen is not an
expert in climatology and has no training or education in ahe field of climatology. In fact, Mr.
Bandeen has no training in climatology or the major areas of scientific study that contribute to
the field of climatology such as physical geography or oceanography. Bandeen Depo. Tr. at 72
74. Aquifer Science objects to Mr. Bandeen's opinions on climatology in addition to his
opinions about legal maners and OSE water rights administration. See Rule 11-703 NMRA.
B. Exhibits Orrered by Mr. Bandeen Lack Foundation.
Mr. Bandeen is required to establish foundation, i.e. evidentiary or testimonial support,
for the exhibits he seeks to introduce. In order to establish foundation for the exhibits Mr.
Bandeen cites in his expert report he must provide infonnation about the exhibit that includes his
qualifications to testify about the exhibit, infonnation establishing the exhibit is relevant to the
case and establishing the trustworthiness of the exhibit See Rule 11-703 NMRA (explaining
that in rendering an expert opinion, however, experts may use facts or data not otherwise
admissible in evidence so long as thai infonnation is '~of a type reasonably relied upon by experts
in the particular field in fanning opinions or inferences upon the subject); see Smith v. Smith, 114
"[i]t is fundamental to say that due process requires notice and hearing so that those who are to
be bound or affeeted by ajudgment may have their day in court." In TWTelecom o/N.M.
L.L.C. v. QlI'esI Corp., 150 N.M. 12,256 P.3d 24, 2011-NMSC-029," 10,20, the Supreme
Court found Ihatlhe New Mexico Public Regulation Commission ("PRC") violated lhe
plaintitrs due process rights when it issued an order that relied. in part, on the PRC's findings in
a prior proceeding to which the plaintiff was not a party because the plaintiff was "denied the
opportunity to present evidence and to examine and cross-examine witnesses regarding PRC's
decision" in the earlier case. NMELC improperly attempts to use prior OSE decisions and
documents as evidence because Aquifer Science was not a party to those earlier actions and it
had no opportunity to respond to and cross·examine the evidence presented in those cases. It
would violate Aquifer Science's due process rights to admit NMELC-9through 12 in this case.
Further, use ofNMELC-9lhrough 12 are contrary to Rule 11-403 NMRA. Rule 11-403
NMRA provides that even relevant evidence "may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice [or] confusion of the issues." Mr.
8
Bandeen uses NMELC-9 through 12 to support his conclusion that because Ihe applications
discussed in those exhibits were denied, Aquifer Science's application should be denied. See
NMELC-I at 7. NMELC's use of Ihese exhibits would unfairly prejudice Aquifer Science and
confuse the issues in this proceeding because the prior applications discussed in NMELC-9
through 12 are factually distinct from the Aquifer Science application and the other applications
have no bearing on the OSE's action on the Aquifer Science application. See City ofRoswell v.
Berry, 80 N.M. 110, 116,452 P.2d 179, 185 (N.M. 1969) (explaining that [wJhether Ihere is an
impainnenl depends upon the facts of each case').
F. Mr. Handeen Offers Cumulative Evidence.
Pursuant to Rule 11-403 NMRA, even relevant evidence is properly excluded if it is
cumulative. Specifically, Rule 11-403 NMRA provides that even relevant evidence "may be
excluded if its probative value is substantially outweighed by .. . considerations of undue delay,
waste of time or needless presentation ofcumulative evidence."
NMELC-9 through 12 present cumulative evidence. All of these exhibits pertain 10
applications other than the Aquifer Science application and have been offered for the sale
purpose of asking the aSE to pre-judge the Application based on aSE's action in other
proceedings. See NMELC-I a17. All of these exhibits seek to establish a single principle and,
therefore, Aquifer Science objects to their use by NMELC in this case because they present
improper duplicative and cumulative evidence.
II. OBJECTIONS TO EXHIBITS OFFERED BY NMELC'S EXPERT WITNESSREGGIE FLETCHER.
Aquifer Science also objects to numerous exhibits offered by NMELC's expert witness,
Reggie Fletcher. A summary of these objections is provided below:
9
NMELC Exhibit Da<:ription Reason (or ObjectionNo.NMELC·\SB Memo to Bruce Frederick from Reggie Fletcher • Expert qualifications
(1uo.\0.2011) re: history ofsettlements in the RioGrande Basin
• Foundation required• Not relevant
NMELC-16 Reggie Fletcher, Draft Forest Land Enhancement • Foundation requiredPlan for the San Pedro Creek Conservation • Not relevantEasemenllNatural Area (July 2007)
NMELC·17 San Pedro Creek Riparian Changes (200t·2006) • Foundation required• Not relevant• Hearsay• Not properly
authenticated. Rule11-90I(A)NMRA
NMELC-18 Dan Scurlock, An E"v;ronme1llal His/Dry ojthe • Expert qualifictllionsMiddle Rio Grande Basi" (excerpts) (May 1998) re: historical
settlements in SandinBasin
• Foundation required• Not relevant
NMELC·19A Assorted aerial photos, San Pedro Creek • Foundation requiredthrough NMELC- Conservation Area (dated 1991, 1996,2003, and • Not relevant\9N 2009) • Not properly
authenticated
NMELC-20 Brief description of Hagan, New Mexico (Oct. 26, • Expert qualificalions2007) re: historical
settlements in SandiaBasin
• Foundation required• Not relevant• Hearsay• Incomplete. See Rule
11·\06 NMRA.
A. Mr. Fletcher is not Qualified to Render Opinions in his Expert Report.
Mr. Fletcher's training and experience is in the fields of botany and ecology (see Fletcher
Depo. Tr. at 6~10). but he is not qualified to render the opinions. contained within his expert
10
report (NMELC·15B) about historical settlements by the San Felipe Pueblo (NMELC·18) and
miners (NMELC-20) in the East Mountain Region. To be qualified to provide expert testimony
in this case, Mr. Fletcher's opinions must he premised on his specific areas of expertise. See
Rule 11·702 NMRA; see also Rule 11-703 NMRA; see also Andrews v. u.s. Steel,2011
NMCA-032, II, 149 N.M. 461, 250 P.3d 887; see also Sewell v. Wilson, 97 N.M. 523, 528, 641
P.2d 1070, 1075 (Cl. App. 1982) (explaining that "to give scientific or specialized opinion
testimony, an expert witness must he qualified to do so by knowledge, skill, training, or
education).
B. Exhibits Offered by Mr. Fletcher Lack Foundation.
"Foundation" is evidentiary or testimonial support to establish the admissibility of
evidence. BLACK'S LAW DICTIONARY 682 (8th ed. 2004) (defining foundation as "[t]he basis on
which something is supported; esp., evidence or testimony that establishes the admissibility of
other evidence"). In order to establish foundation for the exhibits Mr. Fletcher cites in his expert
report he must provide information about the exhibit that includes his qualificallons to testify
about the exhibit, information establishing the exhibit is relevant to the case and establishing the
trustworthiness of the exhibit. Mr. Fletcher must explain that the evidence provided by this
document is ofa type typically relied upon by experts in his field. See Rule 11-703 NMRA
(explaining that in rendering an expert opinion, however, experts may use facts or dala not
otherwise admissible in evidence so long as that infonnation is "ofa type reasonably relied upon
by experts in the particular field in fonning opinions or inferences upon the subject"); see also
Smith v. Smith, 114 N.M. 276, 281, 837 P.2d 869, 875 (N.M. App. 1992) (explaining that,
"[olpinion testimony offered by an expert must be predicated upon ... facts personally perceived
by the expert and facts of a type reasonably relied upon by experts in that particular field).
11
Further, in order to provide foundation. Mr. Fletcher is required to offer a reasoned explanation
for why and how he used the exhibits to arrive at his expert opinion. See Shom%n Bird Farm,
LId. v. U.S. Fidelity & Gllaranty Co., 111 N.M. 713, 715, 809 P.2d 627, 629 (N.M. 1991);
F. Aquifer Science Objects 10 NMELC·20 Beeause it Is Incomplete.
Exhibit NMELC·20 is a portion of an on~line document describing early twentieth·
century Hagan, New Mexico. Rule 11~106 NMRA provides that "[w]hen a writing ... is
introduced by a party, an adverse party may require the introduction at that time ofany other part
or any other writing or recorded statement which ought in fairness to be considered
contemporaneously with it." The primary purpose of this rule is "to eliminate misleading or
deceptive impressions created by crealive excerpting." Siole v. Barr, 2009·NMSC-024, ~34, 146
N.M. 301,210 P.3d 198. NMELC-20 appears to be a selection ofa more comprehensive
resource, but Aquifer Science cannot determine. based on the information provided in the
exhibil, whether the excluded material renders NMELC-20 misleading. Therefore, Aquifer
Science objects to NMELC-20 as incomplete.
III. OBJECTIONS TO EXHIBITS PERTAINING TO PRIOR APPLICATIONSUNRELATED TO THE AQUIFER SCIENCE APPLICATION.
Aquifer Science objects 10 NMELC-21 through 31, documenls which NMELC has
provided to the parties but that are not associated with any NMELC witness in this case. A
summary of Aquifer Science's objections to these exhibits is provided:
NMELC Description Reason for ObjectionExhibit No.NMELC·21 Findings of Fact and Conclusions of Law, Case No. • Foundation required
87-07756 • Not relevant
16
0 Cumulative• Hearsay0 Violates due process
NMELC·22 Memorandum from DuebeJ to Saavedra Re: File No. 0 Foundation required5-1 through 5-1·5-6 Enlgd. (May 9, 1997) • Not relevant
0 Cumulative0 Hearsay0 Violates due process
NMELC-23 Judgment, Case No. 87-07756 0 Foundation required0 Not relevant0 Cumulative• Hearsay0 Violates due process
NMELC·24 a5E's Proposed Findings, Case No. 87-ll7756 • Foundation required
• Not relevant0 Cumulative• Hearsay0 Violates due process
NMELC-2S Report and Recommendation of the Hearing Officer. 0 Foundation requiredNo. 5·1216 'hrou8h 5-1216-5-3 • Not relevant
0 Cumulative0 Hearsay• Violates due process
NMELC-26 Memorandum from Core to Saavedra Re: Application 0 Foundation requiredfor Penn it 5-767 through 5-767·5-3 (Aug. 7,1998) 0 Not relevant
• Cumulative0 Hearsay• Violates due process
NMELC-27 Memorandum from Lewis to Remero Re: review of 0 Foundation requiredhydrologic report prepared for the Horton Application 0 Not relevant(Aug. 8, 1998) 0 Cumulative
• Hearsay• Violates due process
NMELC-28 Memorandum from Reed to Smith Re: Application for • Foundation requiredPennit to Appropriate Waters in the Sandia • Not relevantUnderground Water Basin, He #107146, File S-816 0 Cumulativeand 5-816-5 (Mar. 8, 1983) 0 Hearsay
• Violates due process
NMELC-29 Letter from Smith to Tijeras Land Company Re: File 0 Foundation required5-816 and 5-816-5 (Feb. 13, 1994) 0 Not relevant
17
• Cumulative• Hearsay• Violates due process
NMELC-30 Memorandum from Bemero to Chavez Re File 5-816 • Foundation required(Mar. II, 1993) • Not relevant
• Cumulative• Hearsay• Violates due process
NMELC·31 Memorandum from Core to Stone Re File 5-816 and • Foundation requiredS-Enlarged (Jan. 10, 1992) • Not relevant
• Cumulative• Hearsay• Violates due process
A. Exhibits NMELC-2ltbrougb 31 Lack Foundation.
NMELC has no witness who purports to use NMELC·21 through 31 in connection with
his or her presentation in this case. NMELC has failed to explain why or how these documents
can or should contribute to the OSE's analysis of the Aquifer Science application. For example,
NMELC-23 is a Judgment rendered in the Second Judicial District Court (Case No. CV 87-
07156) in the late I 980s tbat has no relationship to the Aquifer Science application whatsoever.
These documents have no foundation, and Aquifer Science therefore objects to NMELC-21
through 31.
B. Exhibits NMELC·21 lhrougb 31 are Irrelevant.
Exhibits NMELC-21 through 31 pertain to water rights applications other than the
Aquifer Science application 8-2618. None of these exhibits address the specific facts and
circumstances in this case: whether there is unappropriated water available for Aquifer Science's
application, whether the application would impair existing water rights, and whether the
application is detrimental to public welfare or contrary to conservation principles. See NMSA
1978, §§ 72-12·3(E),(F). See City ofRo.well v. Berty, 80N.M. 110, 116,452 P.2d 179, 185
18
(N.M. 1969) (explaining Ihat [w]helher there is an impairmenl depends upon Ihe facls of each
case"). Because these exhibits have no bearing on the Aquifer Science application they are not
relevant to this case. See Rule 11-402 NMRA; see also McNeill v. Burlington Res. 0;1 & Gas
NMELC·RI and R3 and surrebutlal exhibits NMELC·SRlthrough SRIS because they lack
foundalion. See Rule 11-703 NMRA.
D. NMELC Rebuttala.d Surrebuttal Reports are Hearsay.
Rule 11·801(C) NMRA defines hearsay as "a statement, other than one made by the
declarant while testifying at the . .. hearing, offered in evidence to prove the truth of the matter
asserted." Under Rule 11-802 NMRA, hearsay is not admissible unless a specific hearsay applies
under the rules ofevidence.
Mr. Bandeen's rebutlal expert report, NMELC·RJ, relies upon hearsay. Mr. Bandeen
relies on a document tilled: "Sonoran Inslitute, 1009. A Living River- Charting the Health of
lhe Upper Santa Cruz River - Water Vear 2008. Tucson, Arizona, October 2009." NMELC-RJ
at 10. This document is hearsay because it was authored by a person or persons who are not
testifying as NMELC in this proceeding and it is offered for the validity of the assertions
contained in that report. Aquifer Science objects to the report to the extent that it relies upon this
hearsay document. See Rules 11-801 and 11-802 NMRA.
In addition, Mr. Bandeen's surrebuttal expert report, NMELC·SRI, uses hearsay because
24
Mr. Bandeen relies upon expert reports prepared by WRD witnesses Eric Keyes and Jeffrey
Peterson in 2011. NMELC-SR I al 5. Mr. Bandeen presents the propositions provided in the
2011 WRD reports as truth. Aquifer Science objects 10 Mr. Bandeen's surrebuttal report because
it contains hearsay. See Rules 11-801 and 11-802 NMRA.
Respectfully submitted,
HINKLE, HENSLEY, SHANOR & MARTIN, LLP
Allorneysfor Aquifer Science, LLC
CERTIFICATE OF SERVICE
I hereby certify that a copy of Ihe foregoing Applicom Aquifer Science. LLC's Objectionsto Protestanl New Mexico Environmental Low Center Exhibits was mailed to all parties of recordvia first-class mail on this t h day ofJanuary 2013, except those parties that have consented toelectronic service. A complete copy of the service list may be obtained at the Office of the StateEngineer website. www.ose.state.nm.us.Onthe .. HelpMeFind..."menu.click Ihe arrow andscroll down to "Hearing Infonnation" then click on IIAquifer Science, LLC Service List· HUNo. 10-020." The service list will be updated as necessary. ___