N.M. Code R. § 19.8.12.1204
C. Contents of petition. A petition filed under this section shall include the person's name from whom costs and expenses are sought with the following submitted in support of the petition:
(1) an affidavit setting forth in detail all costs and expenses including attorneys' fees the person reasonably incurred for, or in connection with, the person's participation in the proceeding;
(2) receipts or other evidence of such costs and expenses; and
(3) where attorneys' fees are claimed, evidence concerning the hours expended on the case, the customary commercial rate of payment for such services in the area and the individual's performing the services experience, reputation and ability.
E. Who may receive an award. The director may award appropriate costs and expenses including attorneys' fees as follows:
(1) from the permittee to any person if the person initiates or participates in any administrative proceeding reviewing enforcement actions upon a finding that a violation of the act, rules or permit has occurred, or that an imminent hazard existed, and the district court or director determines that the person made a substantial contribution to the issues' full and fair determination, except that a person's contribution who did not initiate a proceeding must be separate and distinct from the contribution a person initiating the proceeding made;
(2) from the mining and minerals division to a person, other than the permittee or his representative, who initiates or participates in a proceeding under the act, prevails in whole or in significant part and achieves at least some degree of success on the merits, upon a finding that such person substantially contributed to the issues' full and fair determination, except that a person's contribution who did not initiate a proceeding must be separate and distinct from the contribution a person initiating the proceeding made;
(3) from the mining and minerals division to a permittee where the permittee demonstrates that the director issued an order of cessation, a notice of violation or an order to show cause why the director should not suspend or revoke the permit in bad faith and for the purpose of harassing or embarrassing the permittee;
(4) from a person to a permittee where the permittee demonstrates that the person initiated a proceeding or participated in such a proceeding in bad faith for the purpose of harassing or embarrassing the permittee; or
(5) from a person to the mining and minerals division where it demonstrates that a person applied for review or any party participated in such a proceeding in bad faith and for the purpose of harassing or embarrassing the mining and minerals division.
G. Appeals. Any person aggrieved by a director's decision concerning the award of costs and expenses in an administrative proceeding under this act may appeal such award to the district court as set forth in 19.8.12.1202 NMAC.
HISTORY OF 19.8.12 NMAC:
Pre-NMAC History:
The material in Part 12 was derived from that previously filed with the State Records Center and Archives under:
SB 73-1 Regulations of the State of New Mexico Coal Surfacemining Commission, filed 1-10-73 and its amendment filed 8-4-76
SB 78-1 (Rule 78-1) Regulations of the State of New Mexico Coal Surfacemining Commission, filed 8-31-78
SB 79-1 (Rule 79-1) New Mexico Coal Surfacemining Regulations, filed 7-11-79
CSMC Rule 80-1 (Rule 80-1) Surface Coal Mining Regulations, filed 9-24-80; and all amendments to CSMC Rule 80-1, filed 7-29-82, 11-10-83, 3-5-84, 7-19-84, filed 8-6-84, 8-23-84, 3-28-89, 6-15-90, 9-18-90, 2-15-91, 5-8-91, 8-26-91, 10-4-91, 7-28-92, 1-25-93, 11-1-94, 3-10-95, 4-12-95, 12-21-95.
Other History:
Renumbered and reformatted CSMC Rule 80-1, Surface Coal Mining regulations (filed 9-24-80) to 19 NMAC 8.2, Coal Surface mining, effective 11-29-97.
Renumbered 19 NMAC 8.2 Subpart 12 Administrative and Judicial Review of Decisions (filed 11-13-97), to 19.8.12 NMAC Administrative and Judicial Review of Decision, effective 09-29-2000.
[19.8.12.1204 NMAC - N, 4-28-2006]