N.M. Code R. § 19.10.14.1406 – Requests for Stay of New Activities

A. A person who is or may be adversely affected by a decision authorizing new activities may file with the Commission a request to stay the new activities no later than 15 days after the date of notice.
B. Upon the timely filing of a request to stay new activities, the effective date of the Director's decision shall be delayed until the Commission concludes an expedited hearing as provided in Subsection G of 19.10.14.1406 NMAC.
C. A request to stay new activities shall include, at a minimum:
(1) a petition initiating an appeal to the Commission, which petition may include a waiver of the hearing deadlines applicable to hearings on the merits, and;
(2) a statement of the basis for the request and showings to be made at the expedited hearing, including:
(a) the irreparable harm to the person requesting the stay if the stay is not granted,
(b) the likelihood that the person requesting the stay will prevail in the appeal on the merits,
(c) the lack of substantial harm to others if the stay is granted, and
(d) the lack of harm to the public interest if the stay is granted.
D. The person requesting the stay shall, at the time of filing, serve the request on all other parties. The other parties may file responses to the request at least 2 working days prior to the expedited hearing, and may separately respond to the petition as otherwise provided.
E. The petition, which must be filed as part of a request to stay new activities, need not include the detailed statement of objections required in Subsection B of 19.10.14.1417 NMAC; provided, however, the petitioner must supplement the petition to meet all requirements for a petition by no later than 60 days after notice of the decision being appealed. A waiver of the hearing deadlines in a petition under this section shall have the limited effect of tolling the deadlines for the hearing on the merits until the date on which petitioner supplements the petition.
F. A person filing a request to stay new activities need not provide financial assurance for the period of any resulting stay ordered by the Commission.
G. The hearing clerk shall distribute copies of any timely request to stay new activities to the Commissioners and schedule an expedited hearing no sooner than 16 days and no later than 30 days after notice of the decision. Only parties (including but not limited to all who filed a timely request for stay) shall be entitled to participate in the Commission's expedited hearing.
(1) The expedited hearing shall be completed and a decision rendered by the Commission no later than 30 days after notice of the decision, and the expedited hearing may be held on short notice.
(2) The Commission chairperson or another Commissioner designated by the chair shall conduct an orderly hearing, not to exceed 5 hours in length, and shall allow each party the opportunity to present evidence on the request(s).
(3) The Commission shall grant or deny the request at the conclusion of the expedited hearing. The Commission may grant a request to stay new activities only if it finds that:
(a) the request was timely and complete when filed,
(b) the person requesting the stay is or may be adversely affected by the Director's decision,
(c) irreparable harm to the person requesting the stay will result if the stay is not granted,
(d) there is a likelihood that the person requesting the stay will prevail on the merits in the appeal,
(e) no substantial harm will result to other interested persons if the stay is granted, and
(f) no harm will ensue to the public interest if the stay is granted.
H. If the Commission fails to decide a request to stay new activities within 30 days of the Director's notice of decision, the request(s) shall be deemed denied.
I. If the Commission denies a request to stay new activities, the effective date of the Director's decision shall be the date of such denial, and no further request to stay the same decision will be considered by the Commission. No person may appeal the denial of a request to stay new activities until after the Commission's final action in the appeal on the merits.
J. If the Commission grants a request to stay new activities, the effective date of the Director's decision shall be the date of the Commission's final action in the appeal on the merits.
[6-30-99; 19.10.14.1406 NMAC – Rn, 19 NMAC 10.2.14.1406, 05-15-2001]