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,

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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

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); BLACK'S LAw

DICTIONARY 682 (8th ed. 2004) (defining foundation as "[tlhe basis on which something is

supported; esp., evidence or testimony that establishes the admissibility of other evidence").

4

Mr. Bandeen is required to offer a reasoned explanation for why and how he uses the

proffered exhibits to arrive at his expert opinion. See Shom%n Bird Farm, LId. v. U.S. Fidelity

& Guaranty Co., III N.M. 713, 715, 809 P.2d 627, 629 (N.M. 1991) (explaining that an expert

witness must satisfactorily explain steps followed in reaching a conclusion and give reasons for

his opinion" and "without such an explanation, the opinion is not justified"); accord Dahl v.

Turner, 80 N.M. 564, 568, 458 P.2d 816, 820 (N.M. App. 1969) (explaining that experts must

give a satisfactory explanation for how they reach their opinions).

Mr. Bandeen's expert report, NMELC-I, lacks foundation. Mr. Bandeen has not offered

substantive analysis ofthe malters discussed in his report or explained why NMELC-1 should be

considered by the Hearing Examiner in his evaluation of and action on the appJication. Thus,

Aquifer Science objects to NMELC-I because NMELC has provided no foundation for this

exhibit.

Also, Mr. Bandeen proposes to introduce exhibits NMELC-9through 12; however, in

addition to being irrelevant to this case (see Section I (C), infra) and the fact that Mr. Bandeen is

not qualified to testify regarding any legal matters or matters ofOSE water rights administration,

including any precedential value Mr. Bandeen perceives in these exhibits (see Section I(A),

supra), Mr. Bandeen has not established foundation for NMELC-9 through 12. Mr. Bandeen not

personally participate in preparing any of the materials represented by NMELC-9through 12.

Mr. Bandecn acknowledged in his deposition thaI he did not use NMELC-9through 12 for any

technical hydrogeological evaluation of the Aquifer Science application. Bandeen Depo. Tr. at

66·71. These exhibits lack foundation because Mr. Bandeen does not explain how he uses

exhibits NMELC-9through 12 in his technical expert evaluation of Aquifer Science's

application and Aquifer Science objects to their use in this proceeding.

5

In addition, Mr. Bandeen has not established foundation for exhibits NMELC-13 through

15, exhibits which consist of climate change analyses. As discussed in Section I (A), supra, he is

not qualified to render any expert opinions about climatology. Further, Mr. Bandeen has not

explained why or how he uses these documents in his hydrological evaluation of Aquifer

Science's application - to the contrary, Mr. Bandeen has testified that he did not use the

documents for any technical evaluation at all. Bandeen Depo. Tr. at 72-75. Because Mr.

Bandeen has established no foundation for these documents, Aquifer Science objects to their use

in this proceeding. See Rule 11-703 NMRA.

C. Mr. Bandeen Offers Irrelevant Exhibits.

Relevant evidence is "evidence having any tendency 10 make the existence of any fact

that is ofconsequence to the determination of the action more probable or less probable than it

would be without the evidence." Rule 11-401 NMRA; Kilgore v. Fuji Heavy Indus. Ltd., 2010­

NMSC-040, 125, 148 N.M. 561,240 P.3d 648 (same). In essence, relevant evidence is that

which naturally and logically tends to establish a fact in issue in the case. McNeill v. Burling/on

Res. Oil & Gas Co., 2008-NMSC·022, '14, 143 N.M. 740, 182 P.3d 121. Rule 11-402 NMRA

states that evidence which is not relevant is not admissible.

As stated in the Hearing Examiner's November 5, 2010 Scheduling Order. the matters at

issue in this case are: (I) whether unappropriated water exists to satisfy the application or

whether the proposed appropriation would impair existing water rights from the underground

water source; (2) whether the proposed appropriation is contrary to conservation of water within

Ihe state; and (3) whether the proposed application is detrimental to the public welfare of the

state." See NMSA 1978, §§ 72-12-3(E),(F).

NMELC, through Mr. Bandeen, proposes to offer exhibits NMELC-9 through 12, but

6

these exhibits are totally unrelated to the facts at issue in this proceeding. None of these exhibits

pertain to the Aquifer Science application. The applications referenced in NMELC·9 through 12

did not involve Aquifer Science - to the contrary, the applications involved different parties,

different facts and circumstances, and different presentations (Le., different well locations, in

different amounts, for use at different locations). None of the above·referenced exhibits

establish any matter that pertains to OSE action on Aquifer Science's application. Accordingly,

Aquifer Science objects to NMELC-9 through 12 because those exhibits are not relevant for Ihe

OSE's consideration of Aquifer Science's application.

D. Exhlbils OfTered by Mr. Bandeen are Hearsay.

Rule 11-801 (Cl NMRA defines hea=y as "a statement, other than one made by Ihe

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 of evidence.

Exhibits NMELC-9 through 12 .re he....y. Exhibits NMELC 9 through 12 all cont.in •

third party's account of whether there was water available to satisfy the applications at issue in

those documents. None ofthese documents were written by Mr. Bandeen or are the subject of

Mr. Bandeen's hydrological or geological analysis or opinion. Thus, the exhibits are statements

made by someone other than a person testifying in this case. Further, NMELC is offering these

exhibits as proof that there is insufficient water available in the Sandia Basin to satisfy new

.ppropriations ofwaler. Mr. B.ndeen offers NMELC-9 through 12 for the purpose of

establishing that there is no water available to satisfy the Aquifer Science application because the

other applications referenced in Exhibits NMELC-9 through NMELC-12 were denied. See

NMELC-I, Bandeen Expert Report .17,12. Bec.use exhibits NMELC-9 through 12 are

7

statements made by persons who are not appearing at hearing, olTered as proof of the matters

asserted therein, they are hearsay. Rules 11-801(C) and 11-802 NMRA; Gonzales v. SlIrgidev

Corp., 120 N.M. 133,143,899 P.2d 576, 586 (N.M. 1995) (explaining that a page from a

published court opinion is hearsay because the plaintiff was offering the court's account ofa

witness's statement as proof that the statement was made).

E. Use of Exhibils Would Violate Proeedural Due Proeess and Rule 11-403NMRA.

Using prior administrative decisions, such as those represented by NMELC-9 through t2,

as evidence in a present case would also violate due process. In City ofAlbuquerque v. S.E.

Reynolds, 71 N.M. 428, 434, 379 P.2d 73, 77 (N.M. 1963), the Supreme Court explained lhat

"[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);

accord Dahl v. Tllrner, 80 N.M. 564, 568, 458 P.2d 816, 820 (N.M. App. 1%9).

Mr. Fletcher's expert report, NMELC-15B, has no foundation. Mr. Fletcher has not

provided any analysis for why his expert report should be considered in this case. To the

contrary, Mr. Fletcher has provided no evaluation whatsoever ofthe Aquifer Science application.

See Fletcher Depa. Tr. at 18-20. Further, Mr. Fletcher has not provided any reasoned

explanation for the opinions expressed in NMELC~ 158.

With regard to NMELC-16, Mr. Fletcher has provided no reason why the Draft Forest

Land Enhancement Plan for the San Pedro Creek Conservation EasementlNatural Area has any

bearing on this case or how he used the exhibit to arrive at his expert opinions. Instead, Mr.

Fletcher explains simply that he llsed NMELC-16 for general background information. Fletcher

Depa. Tr. at 48-49. NMELC-16 has no foundation.

Mr. Fletcher has not provided foundation for NMELC-17. Mr. Fletcher offer.; no

explanation of what he is attempting to establish using NMELC-17. Mr. Fletcher has failed to

explain why or how NMELC~17 contributes to his expert analysis in this case and the exhibit

should be excluded for lack oHoundation. See Rule 11-703 NMRA; see also Dahl v. Tllrner, 80

N.M. 564, 568, 458 P.2d 816, 820 (N.M. App. 1969) (explaining that experts must give a

satisfactory explanation for how they reach their opinions).

In addition, Mr. Fletcher has not provided foundation for exhibits NMELC-18 and 20. In

his report. Mr. Fletcher simply issues the conclusory statement that "[w]ater along the reaches of

San Pedro Creek was certainly more abundant [in the historical past] than it is today." See

12

NMELC-15(B), Fletcher Expert Report. Mr. Fletcher does not explain how he uses NMELC-18

or 20 in his evaluation of any aspect of the Aquifer Science application (indeed, Mr. Fletcher has

compleled no such evaluation). See Fletcher Depo. Tr. at 18·20. Actually, Mr. Flelcher has

provided no explanation for why or how he is qualified to render any expert opinion using these

documents. Under these circumstances. Aquifer Science objects to these exhibits because they

are without foundation.

Finally, Mr. Fletcher has provided no foundation for NMELC·19A through 19N, which

3re Google Earth satellite images depicting the San Pedro Creek conservation area in the years

1991, 1996, 2003, and 2009. Mr. Fletcher does not explain why he chose to include images from

the years selected or how he uses the exhibits in his expert analysis in this case.

C. Mr. Fletcher Orrers Exhibits that are Irrelevant.

NMELC has proposed to otTer exhibilS which are not relevant 10 Ihis proceeding Ihrough

Mr. Fletcher. Mr. Fletcher never reviewed the Aquifer Science application and he did not intend

his expert report to address any aspect of Aquifer Science's Application whatsoever. See

Fletcher Depo. Tr. at 18-20. Instead, Mr. Fletcher opined about a single question that was posed

to him by counsel for NMELC: "[w]hat would happen if San Pedro Creek dried up and why

should we careT' See Fletcher Depo. Tr. at 19. Because this question does not bear upon the

facts at issue in this proceeding, Mr. Fletcher's expert report is not relevant and should be

excluded on that basis. See McNeill v. Burlington Res. Oil & Gas Co., 2008-NMSC.022, 14,

143 N.M. 740,182 P.3d 121 (explaining that relevant evidence is evidence that naturally and

logically tends to establish a fact in issue). In addition, Aquifer Science objects to the exhibits

underlying and supporting Mr. Fletcher's analysis (Le., NMELC-16 through 20) because they are

nol relevant. See Rule 11-402 NMRA.

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D. Exhibils Orrered by Mr. Fletcher Lack Proper Authentication,

Authentication is a prerequisite to admissibility, Without proper authentication. evidence

should be excluded as irrelevant. Rule 11-901(A) NMRA provides that authentication or

identification is a condition precedent to admissibility that is satisfied by evidence sufficient to

support a finding that the matter in question is what the proponent claims. For example,

photographs may be authenticated "by the photographer or by any witness whose familiarity

with the subject matter represented thereby qualifies him to testify as to the correctness of the

representation of the objects or scenes which they portray." N.M ex. Rei. State Highway

Department v. Kistler-Collister Co., Inc., 88 N.M. 221, 225, 539 P.2d 611, 615 (N.M. 1975).

Without proper authentication. evidence should be excluded as irrelevant. See State v.

Arrendondo, 2012-NMSC-013, 19, 278 P.3d 517 (explaining that absent authenticating evidence,

a trial court may reasonably conclude that the evidence in question is nol relevant)(intemal

citation omitted).

Mr. Fletcher has not authenticated the infonnation or many of the photographs that are

included in NMELC-17. Mr. Fletcher acknowledges Ihat he did not prepare or request the

preparation ofNMELC-17. Fletcher Depo. Tr. at 42-43. In addition, approximately one-half of

the photos included in NMELC-17 are photos oflhe San Pedro Creek conservation area taken in

2006, but Mr. Fletcher did not take any of those photos and did not know any of the conditions

under which those photos were taken. See Fletcher Depo. Tr. at 39-41. The only portions of

NMELC-17that Mr. Fletcher has authenticated are the 2001 photographs that he took himself.

See Fletcher Depo. Tr. at 39. Aquifer Science objects to Ihe materials included in NMELC-17

other Ihan the 200 I photographs because Mr. Fletcher has not authenticated them. See Rule 11­

901(A) NMRA; see also N.M. ex. ReI. Stale Highway Departmenl v. Kisller-Coltister Co.. Inc.,

14

88 N.M. 221, 225, 539 P.2d 611, 615 (N.M. 1975).

In addition, Exhibits NMELC-19A through 19N, which are satellite images oflhe San

Pedro Creek that were obtained on the Google Earth website. have not been authenticated. Mr.

Fletcher did not personally verify the condition of the San Pedro Creek during all of the years

depicted in NMELC-19A through N (i.e. 1991, 1996,2003, and 2009), and the condition he

seeks to highlight are invisible on the images. Fletcher Depa. Tr. at 32 (explaining that Fletcher

did not visit the creek in 1991 or 1996); see Fletcher Depa. Tr. at 33-34, 37-38.

Mr. Fletcher asserts that he may have visited the Creek in 2003 and 2009, but that, in the

event that he did so, he would not have been able to visit all of the stretches of stream that are

depicted. See Fletcher Depo. Tr. at 32-33. Mr. Fletcher did not attempt to verify any of the

images in ahe years the photos were taken. See Fletcher Depo. Tr. 34·35. Aquifer Science

objects to Exhibits NMELC·19A through 19N because they are not authenticated. Rule 11-

901 (A) NMRA.

E. Exhibits Offered through Mr. Fleteher Contain 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 of evidence.

Exhibits NMELC-17 and 20 were not prepared by Mr. Fletcher, although Mr. Fletcher

did provide one discrete component orthat exhibit - i.e., the 2001 photos included therein. See

Fletcher Depo. Tr. at 39-43. NMELC-17 and 20 have been olTered by Mr. Fletcher in order to

prove that the conditions in the vicinity of San Pedro Creek have changed over lime. See

Fletcher Depa. Tr. at 43-44.; see also NMELC-15B at 4-5. In other words, NMELC asserts that

IS

the matters described in these documents are true and accurate.

NMELC·20 and all portions ofNMELC-17, other than the 2001 photos included within

that exhibit, are statements made by persons who are not appearing at hearing, offered for the

truth of the matters asserted therein; therefore, these materials are hearsay and Aquifer Science

objecls to NMELC's use of the exhibits on that basis. Rules 11·801(C) and 11·802 NMRA;

Gonzales v. Surgldev Corp., 120 N.M. 133, 143, 899 P.2d 576, 586 (N.M. 1995).

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

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• 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

Co., 2008-NMSC-022, 114,143 N.M. 740,182 P.3d 121.

C. Exhihits NMELC-21 through 31 Represent Improper Cumul.tive Evidence.

Exhibits NMELC-21 Ihrough 31 presenl improper cumulative evidence. 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,"

Even though exhibits NMELC·21 through 31 are nol referenced in any expert report

NMELC submitted, NMELC presumably offers Ihese documents for Ihe same purpose as slated

in Mr. Bandeen's expert report: 10 establish that there is insufficient water available to satisfy

Aquifer Science's application. See NMELC.I, Bandeen Expert Report al7, '2. In Ihis regard,

NMELC·21 Ihrough 31 are cumulalive ofone another and also cumulative ofexhibits NMELC-9

through 12, which Mr. Bandeen relied upon in his expert report. Because all these fifteen (15)

exhibits seek to establish a single principle. Aquifer Science objects to their use because they are

improper cumulative evidence. Rule 11-403 NMRA.

D. Exhibits NMELC-21 through 31 .re He.....y.

Rule 11-80 I (C) NMRA defines hearsay as "a slalemenl, other Ihan one made by Ihe

declarant while testifying at the ... hearing, offered in evidence to prove the truth of the matter

asserted." Under Rule 11-802 NMRA, hearsay is nol admissible unless a specific hearsay applies

under lhe rules of evidence. Exhibils NMELC·21 through 31 were not written by any NMELC

wilness. Although NMELC·21 Ihrough 31 are nol referenced in any expert report NMELC

19

submitted, NMELC presumably offers Lhese documents to establish that there is insufficient

water available to satisfy Aquifer Science's application. See NMELC-I, Bandeen Expert Report

at 7, 12. Because exhibits NMELC·9 through 12 are statements made by persons who are not

appearing at hearing, offered for the truth of the matters asserted therein, they are hearsay. Rules

11-801(C) and 11-802 NMRA; Gonzoles v. SlIrgidev Corp., 120 N.M. 133, 143,899 P.2d 576,

586 (N.M. 1995).

E. Use of Exhibits NMELC-21 through 31 for Evidentiary Purposes wouldViolate Due Proees. and Rule 11-403 NMRA.

Aquifer Science also objects to NMELC·21 through 31 as evidence in this case because

doing so would violale due process. TW TelecolII, 2011-NMSC-029, 'i'i 10,20 (finding that the

PRe violaled the plainliff's due process rights by issuing an order that relied, in part, on the

PRC's findings in another 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). Further, in City 0/Albuquerque v. S.E. Reynolds,

71 N.M. 428, 434, 379 P.2d 73, 71 (N.M. 1963), the Supreme Court explained that "[ilt is

fundamental to say that due process requires notice and hearing so that those who are to be

bound or affected by ajudgment may have their day in court." Aquifer Science was not a party

10 the cases represented in NMELC-21 through 31 and did not have an opportunity to present

evidence or examine witnesses in those cases. Aquifer Science objects to the use of these

exhibits because doing so would violate Aquifer Science's due process rights.

Also, use ofNMELC-21 through 31 would be inconsistent with Rule 11-403 NMRA.

Rule 11-403 NMRA provides thaI even relevant evidence "may be excluded if its probalive

value is substantially outweighed by the danger of unfair prejudice [or] confusion of the issues."

These exhibits purportedly support the conclusion that because the other applications discussed

20

in those exhibits were denied, Aquifer Science's application should be denied. See NMELC- I al

7. NMELC's use of these exhibits would unfairly prejudice Aquifer Science and confuse the

issues in Ihis proceeding because the prior applications discussed in NMELC-2 I through 31 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 there is an impainnent

depends upon the facts of each case").

III. OBJECTIONS TO NMELC'S REBUTTAL AND SURREBUTTAL EXHIBITS.

Aquifer Science objects 10 the following exhibits which NMELC has provided to the

parties in this case as rebuttal and surrebuttal exhibits. A summary of Aquifer Science's

objections to these exhibits is provided:

NMELC Exhibit No. Dcscrintion Reason for ObiectJODRebuttal Exhibit NMELC-R\ Paul Davis, Review ofAquifer • Expert qualification re:

Science's Exhibils 128, 12b,a nd discharge plan pennitting12c in Support ofNMOSE processes nndApplication No. S-26\8 (May 10, requirements2012) • Foundation required

Rebuttal Exhibit NMELC-R3 Memorandum by Reid Bandeen • Expert qualification re:Re: Application No. 5-2618- discharge plan pennittingRebuttal Testimony (May 14, processes and2012) requirements

• Foundation required

• Contains hearsay

Surrebuttal Exhibit Surrebuttal Report of Reid • Expert qualification re:NMELC-SRI Sandeen OSE water rights

administration• Foundation required• Hearsay

Surrebuttal Exhibit Revised hydrographs for ten • Foundation requiredNMELC-SR2 through SRI I wells monitored by the United

States Geoloaical SurveySurrebuttal Exhibit List of dry holes in the study area • Foundation requiredNMELC-SRI2

2\

Surrebunal Exhibit Location map of dry holes • Foundation requiredNMELC-SRI3

Surrebuttal Exhibit Surrebuttal Report of Paul Davis • Expert qualifiealion re:NMELC-SRI4 elimalolog)'

• Foundation required• Not relevant

Surrebuttal Exhibit Schematic of San Pedro Creek· • Foundation requiredNMELC-SRIS Groundwater System

A. Mr. Davis is Not Qualifed to Render Opinions in His Rebuttal andSurrebuttal Reports.

To be qualified to provide expert testimony in Ihis case, Mr. Davis's opinions must be

based on his specifie areas ofespertise. See Rule 11-702 NMRA; see alsa Rule 11-703 NMRA;

see alsa Andrews v. U.S. Sleel, 2011-NMCA-032, 111, 149 N.M. 461, 250 P.3d 887; see alsa

Sewell v. Wilson, 97 N.M. 523,528,641 P.2d 1070, 1075 (Ct. App. 1982) (explaining that "10

give scientific or specialized opinion testimony, an expert witness must be qualified to do so by

knowledge, skill, training. or education). Mr. Davis's expertise is in the fields of geohydrology,

groundwater modeling, and radioactive waste disposal. See Davis Depo. Tr. at 75.

Mr. Davis's rebullal report (NMELC-RI at 22) and surrebuttal report (NMELC-SRI4 at

3-4) contain opinions Mr. Davis is not qualified to render regarding discharge plan pennitting

processes and requirements, including potential water quality issues associated with Aquifer

Science's proposal to offset impacts to the San Pedro Creek. Mr. Davis does not know that the

NMED, not the OSE, addresses such water quality issues as part ofa discharge permit

proceeding (see Davis Depo. Tr. at 176) and Mr. Davis is not qualified to render opinions on

discharge plan pennitting process and requirements because he Jacks the required training and

experience. See Rules 11-702 and 11-703 NMRA.

Furthennore, Mr. Davis's surrebuttal expert report conlains opinions about climate

22

change (see NMELC's Surrebuttal Exhibit SR·14 at 2), but Mr. Davis lacks training and

experience in climatology. See Davis Depo. Tr. at 10-11,32,89-90,174. Because Mr. Davis is

not qualified to render any opinion about climatology, Aquifer Science objects to the portion of

Mr. Davis's surrebuttal expert report on climate change. See Rule 11·703 NMRA.

B. Mr. Handeen is Not Qualified to Render Opinions in His Rebuttal andSurrebuttal Reports.

To be qualilied (0 provide expert 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. Steel, 2011·NMCA-032, '11, 149 N.M. 461, 250 PJd 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 be qualified to do so by

knowledge, skill, training, or education). Mr. Bandeen's educational training and work

experience are in the areas of hydrology and geology. See Bandeen Depo. Tr. at 4-6.

In Mr. Bandeen's rebuttal expert report (NMELC.R3 at 10) and surreburtal report

(NMELC·SR1 at 4-5), Mr. Bandeen offers opinions about discharge plan permitting processes

and requirements. However, Mr. Bandeen is a hydrologist and geologist who is not qualified to

render an expert opinion in these areas.

Further, in NMELC-SRI, Mr. Bandeen offers opinions about water rights administration,

referencing the 2011 reports of Keyes and Peterson. See NMELC·SRI at 5. Mr. Bandeen has no

training or experience in water rights administration and he is not qualified (0 offer those

opinions. See Rule 11-702 NMRA; see also Rule 11·703 NMRA.

C. NMELC's Rebuttal and Surrebuttal Exhibits Require Foundation.

NMELC's rebuttal exhibits NMELC-RI and R3 and surrebuttal exhibits NMELC-SRI

through SRI51ack foundation. NMELC and its expert witnesses, Mr. Bandeen and Mr. Davis

23

have not provided an explanalion of why or how their the rebutlal expert reports (NMELC-RI

and RJ) and surrebutlal expert reports (NMELC-SR I and SR 14) should be considered by the

Hearing Examiner in his evaluation of and action on the Aquifer Science application. In

addition, Mr. Bandeen has provided no explanation of who prepared surrebuttal exhibits

NMELC·SR I through SR13, how they were prepared, or how they should bear upon the aSE's

action in this case. Likewise. Mr. Davis has provided no explanation of who prepared NMELC­

SRI5. how it was prepared, or how it should be used in the aSE's evaluation of the Aquifer

Science application. Thus. Aquifer Science objects to exhibits NMELC's rebuttal exhibits

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. ___

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