A. Within twenty days after entry of an order or decision of the commission, a party of record adversely affected may file with the commission an application for rehearing in respect of any matter determined by the order or decision, setting forth the respect in which the order or decision is believed to be erroneous. The commission shall grant or refuse the application in whole or in part within ten days after the application is filed, and failure to act on the application within that period shall be deemed a refusal and final disposition of that application. In the event the rehearing is granted, the commission may enter a new order or decision after rehearing as may be required under the circumstances.

B. A party of record to the rehearing proceeding dissatisfied with the disposition of the application for rehearing may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978.

History: Laws 1935, ch. 72, § 17; 1941 Comp., § 69-223; Laws 1949, ch. 168, § 19; 1953 Comp., § 65-3-22; Laws 1979, ch. 133, § 1; 1981, ch. 63, § 2; 1998, ch. 55, § 85; 1999, ch. 265, § 87.

Cross references. — For procedures governing administrative appeals to the district court, see Rule 1-074 NMRA.

For Rules of Appellate Procedure, see Rule 12-101 NMRA et seq.

The 1999 amendment, effective July 1, 1999, substituted "Section 39-3-1.1" for "Section 12-8A-1" in Subsection B.

The 1998 amendment, effective September 1, 1998, rewrote this section.

Constitutionality. — De novo judicial review of agency action or proration of gas production is not unlawful delegation of power in violation of the basic theory of separation of powers among legislative, executive and judicial branches of government. State ex rel. Oil Conservation Comm'n v. Brand, 1959-NMSC-038, 65 N.M. 384, 338 P.2d 113 (decided under prior law).

Subsection A specifically requires filing of application for rehearing setting forth the claimed invalidity of order entered by commission. Its purpose is to afford commission an opportunity to reconsider and correct erroneous decision. Pubco Petroleum Corp. v. Oil Conservation Comm'n, 1965-NMSC-023, 75 N.M. 36, 399 P.2d 932.

Subsection B relates solely to dissatisfied applicant and what he may do following entry of an order on rehearing or refusal of a rehearing. The term "party of record to the rehearing proceeding," as used in Subsection B, means a party who has applied for a rehearing and is dissatisfied with disposition of his application. Pubco Petroleum Corp. v. Oil Conservation Comm'n, 1965-NMSC-023, 75 N.M. 36, 399 P.2d 932.

Lack of jurisdiction. — Where plaintiff asked the Oil Conservation Commission to suspend proceeds from two gas wells in conjunction with plaintiff's objection to applications to pool mineral interests; the commission denied the request; plaintiff did not appeal the commission's decision; and plaintiff filed a motion in a quiet title action to suspend proceeds, the district court lacked subject matter jurisdiction to rule on the motion. Edwin Smith, LLC v. Clark, 2011-NMCA-003, 149 N.M. 249, 247 P.3d 1134, rev'd, Edwin Smith, LLC v. Synergy Operating, LLC, 2012-NMSC-034, 285 P.3d 656.

Commission's judicial decision preclusive. — Commission was acting in a judicial capacity when it approved a proposed unitization plan; its decision was therefore entitled to preclusive effect. Amoco Prod. Co. v. Heimann, 904 F.2d 1405 (10th Cir. 1990), cert. denied, 498 U.S. 942, 111 S. Ct. 350, 112 L. Ed. 2d 314 (1990).

Supreme court review of commission's action. — The supreme court makes same review of commission's action as did district court. It is restricted to considering whether, as a matter of law, commission's action is consistent with and within scope of its statutory authority, and whether administrative orders are supported by substantial evidence. Rutter & Wilbanks Corp. v. Oil Conservation Comm'n, 1975-NMSC-006, 87 N.M. 286, 532 P.2d 582.

Sufficiency of commission's findings. — Since appellant had filed two applications with the commission seeking either establishment of certain property within a gas pool as separate and distinct pool with special pool rules for production or, as an alternative, exemption of his wells from prorationing within gas pool and establishment of special production allowables, and at commission hearing appellant elicited evidence from his sole witness tending to support his applications, but commission did not put on any testimony, merely cross-examining appellant's witness, the record failing to provide any illumination as to why the testimony was wrong and should be disregarded, and nevertheless, commission found there was single common source of supply, that granting the applications would violate correlative rights and that their denial was necessary to prevent waste, it was held that administrative findings sufficiently extensive to show basis of commission's order was utterly lacking and reversal was thereby required. Fasken v. Oil Conservation Comm'n, 1975-NMSC-009, 87 N.M. 292, 532 P.2d 588.

In cases when sufficiency of the commission's findings is in issue or their substantial support is questioned, it must appear: (1) that commission made findings of ultimate facts which are material to the issues, having to do with such ultimate factors as whether a common source of supply exists, prevention of waste, protection of correlative rights and matters relative to net drainage, (2) that commission made sufficient findings to disclose reasoning of the commission in reaching its ultimate findings, and (3) findings must have substantial support in the record. Fasken v. Oil Conservation Comm'n, 1975-NMSC-009, 87 N.M. 292, 532 P.2d 588.

Question whether commission's order instituting prorationing in a pool was arbitrary, unreasonable, unlawful and capricious because of lack of substantial evidence that wells were producing from same pool and because commission failed to determine amount of recoverable gas under each tract or in the pool was question of fact and not one of jurisdiction. Grace v. Oil Conservation Comm'n, 1975-NMSC-001, 87 N.M. 205, 531 P.2d 939.

Lack of jurisdiction. — Since corporation failed to exhaust its statutory administrative remedies, trial court was without jurisdiction to entertain review of the order of commission. Pubco Petroleum Corp. v. Oil Conservation Comm'n, 1965-NMSC-023, 75 N.M. 36, 399 P.2d 932.

Commission is necessary adverse party to an appeal of one of its decisions and it was error for trial court to refuse to allow commission to participate as such. Continental Oil Co. v. Oil Conservation Comm'n, 1962-NMSC-062, 70 N.M. 310, 373 P.2d 809.

"Entry of an order" means entering order upon a minute book or other proper book used to record the official acts of the commission. 1954 Op. Att'y Gen. No. 54-5927.

Law reviews. — For comment on Cont'l Oil Co. v. Oil Conservation Comm'n, 70 N.M. 310, 373 P.2d 809 (1962), see 3 Nat. Res. J. 178 (1963).

Am. Jur. 2d, A.L.R. and C.J.S. references. — 2 Am. Jur. 2d Administrative Law § 392 et seq., § 415 et seq.

73A C.J.S. Public Administrative Law and Procedure §§ 161, 162, 172 to 190.