1. A. The director must review the materials submitted under 19.8.35.8 NMAC, comments received under 19.8.35.11 NMAC, and any other relevant, reasonably available information to determine whether the record is sufficiently complete and adequate to support a decision on the merits of the request. If not, the director must notify the requester in writing, explaining the inadequacy of the record and requesting submittal, within a specified reasonable time, of any additional information that the director deems necessary to remedy the inadequacy.
2. B. Once the record is complete and adequate, the director must determine whether the requester has demonstrated valid existing rights. The decision document must explain how the requester has satisfied or has not satisfied all applicable elements of the definition of valid existing rights in 19.8.35.7 NMAC. It must contain findings of fact and conclusions, and it must specify the reasons for the conclusions.

3. C. Impact of property rights disagreements. This subsection applies only when a request relies upon one or more of the standards in Paragraph (2) of Subsection A of 19.8.35.7 NMAC, or Paragraphs (1) and (2) of Subsection D of 19.8.35.7 NMAC.

   (1) The director must issue a determination that the requester has not demonstrated valid existing rights if the requester's property rights claims are the subject of pending litigation in a court or administrative body with jurisdiction over the property rights in question. The director will make this determination without prejudice, meaning that the requester may resubmit the request once the property rights dispute is finally adjudicated. This paragraph applies only to situations in which legal action has been initiated as of the closing date of the comment period under Subsection A of 19.8.35.11 NMAC or Subsection B of 19.8.35.11 NMAC.

   (2) If the record indicates disagreement as to the accuracy of the requester's property rights claims, but this disagreement is not the subject of pending litigation in a court or administrative agency of competent jurisdiction, the agency must evaluate the merits of the information in the record and determine whether the requester has demonstrated that the requisite property rights exist under Paragraph (1) of Subsection A of 19.8.35.7 NMAC, or Paragraphs (1) or (2) of Subsection D of 19.8.35.7 NMAC of the definition of valid existing rights as appropriate. The director must then proceed with the decision process under 19.8.35.12 NMAC.

4. D. The director must issue a determination that the requester has not demonstrated valid existing rights if the requester does not submit information that the director requests under Subsection B of 19.8.35.10 NMAC or Subsection A of 19.8.35.12 NMAC within the time specified or as subsequently extended. The director will make this determination without prejudice, meaning that the requester may file a revised request at any time.

5. E. After making a determination, the director must:

   (1) provide a copy of the determination, together with an explanation of appeal rights and procedures, to the requester, to the owner or owners of the land to which the determination applies, to the owner of the feature causing the land to come under the protection of 19.8.2.201 NMAC, and, when applicable, to the director with primary jurisdiction over the feature with respect to the values that caused the land to come under the protection of 19.8.2.201 NMAC;

   (2) the director will publish a notice of the determination in a newspaper of general circulation in the county in which the land is located; OSM will publish the determination, together with an explanation of appeal rights and procedures, in the federal register if the determination includes federal lands within an area listed in 19.8.2.201 NMAC.

[19.8.35.12 NMAC - N, 1-15-2002; A, 12-31-2007]