{ "id": 257625, "name": "Timothy B. JOHNSON, Trustee for Ralph A. Bard, Jr., Trust u/a/d February 12, 1983, et al., Plaintiffs-Appellees, v. NEW MEXICO OIL CONSERVATION COMMISSION, Defendant-Appellant; Timothy B. Johnson, Trustee for Ralph A. Bard, Jr., Trustee u/a/d February 12, 1983, et al., Plaintiffs-Appellees, v. Burlington Resources Oil & Gas Company, Defendant-Appellant", "name_abbreviation": "Johnson v. New Mexico Oil Conservation Commission", "decision_date": "1999-04-13", "docket_number": "Nos. 25,061, 25,062", "first_page": "120", "last_page": "127", "citations": [ { "type": "official", "cite": "127 N.M. 120" }, { "type": "parallel", "cite": "978 P.2d 327" }, { "type": "parallel", "cite": "1999-NMSC-021" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "121 N.M. 817", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566644 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/121/0817-01" ] }, { "cite": "1996-NMSC-037", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6\u00b6 10-11" } ], "opinion_index": 0 }, { "cite": "88 N.M. 303", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2838068 ], "weight": 2, "year": 1975, "pin_cites": [ { "page": "306" }, { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0303-01" ] }, { "cite": "106 N.M. 732", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 708623 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "735" }, { "page": "1114" } ], "opinion_index": 0, "case_paths": [ "/nm/106/0732-01" ] }, { "cite": "103 N.M. 72", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 711367 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "76" }, { "page": "173" } ], "opinion_index": 0, "case_paths": [ "/nm/103/0072-01" ] }, { "cite": "1998-NMSC-050", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 827330 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 5" } ], "opinion_index": 0, "case_paths": [ "/nm/126/0413-01" ] }, { "cite": "967 P.2d 447", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1998, "opinion_index": 0 }, { "cite": "126 N.M. 107", "category": "reporters:state", "reporter": "N.M.", "year": 1998, "opinion_index": 0 }, { "cite": "904 F.2d 497", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10538177 ], "pin_cites": [ { "page": "501-02" } ], "opinion_index": 0, "case_paths": [ "/f2d/904/0497-01" ] }, { "cite": "1998-NMCA-118", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834355 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 9" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0608-01" ] }, { "cite": "1998-NMCA-134", "category": "reporters:neutral", "reporter": "NMCA", "case_ids": [ 834323 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 15" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0786-01" ] }, { "cite": "113 N.M. 209", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723289 ], "weight": 3, "pin_cites": [ { "page": "210" }, { "page": "350" }, { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0209-01" ] }, { "cite": "112 N.M. 528", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720235 ], "weight": 7, "year": 1991, "pin_cites": [ { "page": "530" }, { "page": "723" }, { "page": "723" }, { "page": "532-33" }, { "page": "725-26", "parenthetical": "Montgomery, J., dissenting" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0528-01" ] }, { "cite": "113 N.M. 184", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723201 ], "weight": 3, "pin_cites": [ { "page": "185" }, { "page": "325" }, { "page": "185" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0184-01" ] }, { "cite": "112 N.M. 441", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 720201 ], "weight": 2, "pin_cites": [ { "page": "444" }, { "page": "513" } ], "opinion_index": 0, "case_paths": [ "/nm/112/0441-01" ] }, { "cite": "85 N.M. 597", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2776921 ], "weight": 4, "year": 1973, "pin_cites": [ { "page": "598" }, { "page": "1094" }, { "page": "598" }, { "page": "1094" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0597-01" ] }, { "cite": "120 N.M. 579", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1558975 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "583" }, { "page": "32" } ], "opinion_index": 0, "case_paths": [ "/nm/120/0579-01" ] }, { "cite": "122 N.M. 173", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 322295 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/122/0173-01" ] }, { "cite": "1996-NMSC-044", "category": "reporters:neutral", "reporter": "NMSC", "pin_cites": [ { "page": "\u00b6 22" } ], "opinion_index": 0 }, { "cite": "1998-NMSC-020", "category": "reporters:neutral", "reporter": "NMSC", "case_ids": [ 834209 ], "weight": 3, "pin_cites": [ { "page": "\u00b6 17" } ], "opinion_index": 0, "case_paths": [ "/nm/125/0401-01" ] }, { "cite": "114 N.M. 103", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 731622 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "114" }, { "page": "830" } ], "opinion_index": 0, "case_paths": [ "/nm/114/0103-01" ] } ], "analysis": { "cardinality": 1112, "char_count": 27305, "ocr_confidence": 0.673, "pagerank": { "raw": 1.5898932120962572e-07, "percentile": 0.6819127292749501 }, "sha256": "0cfca3539f54c1be57caebe86914b27c819ef528463018a4cc01759e8db438b0", "simhash": "1:462bc783e3be3c91", "word_count": 4364 }, "last_updated": "2023-07-14T14:57:01.529900+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BACA, FRANCHINI and SERNA, JJ., concur." ], "parties": [ "Timothy B. JOHNSON, Trustee for Ralph A. Bard, Jr., Trust u/a/d February 12, 1983, et al., Plaintiffs-Appellees, v. NEW MEXICO OIL CONSERVATION COMMISSION, Defendant-Appellant. Timothy B. Johnson, Trustee for Ralph A. Bard, Jr., Trustee u/a/d February 12, 1983, et al., Plaintiffs-Appellees, v. Burlington Resources Oil & Gas Company, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nMINZNER, Chief Justice.\n{1} This is an appeal from the district court\u2019s review of an order by the New Mexico Oil Conservation Commission, which increased the spacing requirements for deep wildcat gas wells in certain areas of the state. Specifically, the Commission and the real party in interest, Burlington Resources Oil & Gas Co., appeal the district court\u2019s ruling that the order is without effect as to Timothy P.' Johnson and other individual holders (Holders) of working interests and operating rights affected by the order.\n{2} After the Commission issued its order, Holders timely filed with the Commission an application for rehearing, but the Commission failed to act upon the application within ten days. Holders then appealed to the district court, naming the Commission and Burlington as defendants. The district court found in favor of Holders, ruling that the order, as against them, was without effeet. The Commission and Burlington now appeal to this Court.\n{3} The question we address in this appeal is whether the Commission violated the New Mexico Oil and Gas Act (OGA), NMSA 1978, \u00a7\u00a7 70-2-1 to -38 (1935, as amended through 1996, prior to 1998 amendment), and its implementing regulations by issuing its order without first providing Holders with actual notice of the Commission\u2019s proceedings on Burlington\u2019s application for an increase in gas-well spacing requirements. We conclude that the Commission\u2019s order is invalid with respect to Holders, because Holders were not afforded reasonable notice of the proceedings as required by the OGA and its implementing regulations. Our conclusion that the Commission\u2019s order is invalid with respect to Holders makes it unnecessary for us to reach the question whether the Commission\u2019s order should be vacated on other grounds. We affirm the district court\u2019s judgment.\nI.\n{4} The parties involved in this dispute include Holders, Burlington, and the Commission. In all, Holders control over an eighty-percent working interest in the east half and southwest quarter of Section 9, Township 31 North, Range 10 West, San Juan County, New Mexico (Section 9). Burlington is also a working-interest owner in Section 9. The Commission is a creature of the OGA. See \u00a7 70-2-4. Pursuant to the OGA, the Commission regulates certain aspects of oil and gas operations throughout the state.\n{5} The Oil Conservation Division, which is not a party to this suit, also is a creature of the OGA. See \u00a7 70-2-5. The Division has\njurisdiction, authority and control of and over all persons, matters or things necessary or proper to enforce effectively the provisions of [the OGA] or any other law of this state relating to the conservation of oil or gas and the prevention of waste of potash as a result of oil or gas operations.\nSection 70-2-6(A). The Commission has \u201cconcurrent jurisdiction and authority with the [Division to the extent necessary for the [C]ommission to perform its duties as required by law.\u201d Section 70-2-6(B).\n{6} This case concerns the Commission\u2019s modification of Oil and Gas Rule 104, which addresses the spacing of wildcat gas wells. From 1950 until the time of this suit, Rule 104 had required all wildcat gas wells in the San Juan Basin to be located on drilling tracts consisting of 160 contiguous surface acres. See Well Spacing; Acreage Requirements for Drilling Tracts, N.M. Oil Conservation Comm\u2019n, Rule 104(c) (Jan. 1, 1950); Well Spacing; Acreage Requirements for Drilling Tracts, N.M. Oil Conservation Comm\u2019n, Rule 104(b) (Feb. 1, 1951); Well Spacing: Acreage Requirements for Drilling Tracts, Oil Conservation Div., Energy, Minerals, & Natural Resources Dep\u2019t, 19 NMAC 15.C.104.B(2)(a) (May 25, 1964, as amended through Feb. 1, 1996, prior to June 30, 1997 amendment).\n{7} Rule 104 defines \u201cwildcat well.\u201d Since 1996, the rule has provided the following definition for a \u201cwildcat well\u201d in the San Juan Basin:\nAny well which is to be drilled the spacing unit of which is a distance of 2 miles or more from:\n(i) the outer boundary of any defined pool which has produced oil or gas from the formation to which the well is projected; and\n(ii) any other well which has produced oil or gas from the formation to which the proposed well is projected....\n19 NMAC 15.C.104.A(l)(a) (Feb. 1,1996).\n{8} Beginning in June 1996, Burlington sent correspondence to Holders, seeking either to purchase or to farm-out Holders\u2019 acreage in Section 9, among other areas. Specifically, Burlington sought to drill high-risk deep wildcat gas wells in these areas. Burlington also planned to file an application with the Commission for the purpose of changing the Rule 104 spacing requirement from 160 to 640 acres for deep wildcat gas wells in the San Juan Basin. On February 27, 1997, Burlington filed its application, which was docketed as Commission Case No. 11745.\n{9} Pursuant to Burlington\u2019s application in Case No. 11745, the Commission held a public hearing on March 19, 1997. At this hearing, Burlington\u2019s counsel informed the Commission that, by certified mail, Burlington had provided personal notice of the application and the hearing to nearly 200 operators in the San Juan Basin. For its part, the Commission provided notice by publication and afforded personal notice to 267 parties on its own mailing list. Apparently none of the Holders were on the Commission\u2019s mailing list, for none of them received personal notice from the Commission.\n{10} Burlington did not provide personal notice to any of the Holders on either the application or the hearing, even though Burlington had actual knowledge of all of the Holders\u2019 names, addresses, and Section 9 interests long before it had filed its application. In fact, at the time of its filing, Burlington had been remitting overriding royalty payments to each of the Holders on a monthly basis, and Burlington had been engaged in litigation against Holders since 1992. In addition, Burlington not only had been seeking to purchase or to farm-out Holders\u2019 acreage in Section 9, the company had also selected Section 9 as the location for one of its initial deep-drilling test wells and had prepared a detailed Authority for Expenditure for this well. Further, Burlington had maintained a computerized database of the names and addresses of Holders and could have given them actual notice of its application and the proceedings thereon. Despite Burlington\u2019s actual knowledge of and involvement with Holders and their respective Section 9 working interests, Burlington\u2019s counsel, during the Commission hearing, testified that, \u201cto the best of [Burlington\u2019s] knowledge and belief[,] there [was] no opposition to having the Commission change [Rule 104] and allow deep gas to be developed on 640-acre spacing.\u201d\n{11} During the Commission proceedings, only one party, Amoco Production Co., voiced some opposition to Burlington\u2019s application. Nonetheless, Amoco did not object to 640-acre spacing outright. Rather, believing it to be premature to establish a deep wildcat gas-well spacing order for the entire San Juan Basin, Amoco merely suggested \u201cuse of an Exploratory spacing order which would space a drillsite on 640 acres to be revisited after data was accumulated.\u201d Amoco is not a party to the suit before us.\n{12} At the Commission hearing, Burlington\u2019s senior staff landman testified that Burlington had notified approximately 198 out of 315 operators in the San Juan Basin. The landman also testified that, apart from Amoco\u2019s suggestion, he was not aware of any other suggestions on Burlington\u2019s application. In fact, the landman explained, \u201cWe have received support.\u201d\n{13} On June 5, 1997, the Commission entered its Order No. R-10815, which concluded, among other things, that Division Rule 104 should be amended on a permanent basis to increase the spacing requirements for deep wildcat gas wells in the San Juan Basin to 640 acres. In re Burlington Resources Oil & Gas Co., N.M. Oil Conservation Comm\u2019n Case No. 11745 (June 5, 1997) (Order No. R-10815). On June 11,1997 \u2014 six days after the Commission issued its order\u2014 Burlington filed an application with the Division, seeking to impose a compulsory pooling of Holders\u2019 interests in the east half and southwest quarter of Section 9 for a deep wildcat gas well proposed by Burlington. Obtaining Commission Order R-10815 was a condition precedent to Burlington\u2019s initiation of compulsory pooling proceedings against Holders, for under Rule 104 as extant prior to June 5, 1997, Burlington could not have petitioned the Division to impose a compulsory pooling order for 640 acres. See 19 NMAC 15.C.104.B(2)(a) (Feb. 1, 1996, prior to June 30, 1997 amendment) (requiring all wildcat gas wells drilled in the San Juan Basin to be located on drilling tracts of 160 contiguous surface acres).\n{14} On June 24, 1997, Holders timely filed with the Commission an Application for Rehearing of Order No. R-10815. When the Commission failed to act upon the application within ten days, the application was deemed denied. \u25a0 See \u00a7 70-2-25(A). Holders then properly appealed to the district court, naming the Commission and Burlington as defendants. Holders also moved for a stay of Order No. R-10815 for the duration of the appeal, and the district court granted the motion as to Holders only. Rule 104 was finally amended on June 30, 1997. See 19 NMAC 15.C.104.B(2)(b) (June 30, 1997) (requiring deep wildcat gas wells drilled in the San Juan Basin to be located on drilling tracts of 640 contiguous surface acres).\n{15} In its Opinion and Final Judgment, the district court found in favor of Holders, ruling that, \u201c[k]nowing of its plan to pool the interests of [Holders] for a wildcat well on 640-aere spacing and knowing the identities and whereabouts of [Holders], Burlington\u2019s failure to provide personal notice to them of the spacing case proceeding ... deprived [Holders] of their property without due process of law.\u201d Accordingly, the district court ruled that the order, as against Holders, was without effect. The Commission and Burlington now appeal to this Court, which has jurisdiction under Section 70-2-25(B).\nII.\n{16} This Court conducts a whole-record review of the Commission\u2019s factual findings. See Santa Fe Exploration Co. v. Oil Conservation Comm\u2019n, 114 N.M. 103, 114, 835 P.2d 819, 830 (1992). On legal questions such as the interpretation of the OGA or its implementing regulations, we may afford some deference to the Commission, particularly if the question at hand implicates agency expertise. See generally Regents of Univ. of N.M. v. New Mexico Fed\u2019n of Teachers, 1998-NMSC-020, \u00b6 17, 125 N.M. 401, 962 P.2d 1236. \u201cHowever, the [C]ourt may always substitute its interpretation of the law for that of the [Commission] \u2018because it is the function of courts to interpret the law.\u2019 \u201d Fitzhugh v. New Mexico Dep\u2019t of Labor, 1996-NMSC-044, \u00b6 22, 122 N.M. 173, 922 P.2d 555 (quoting Morningstar Water Users Ass\u2019n v. New Mexico Pub. Util. Comm\u2019n, 120 N.M. 579, 583, 904 P.2d 28, 32 (1995)).\n{17} At the outset, we note that the district court held that Holders were denied due process of law under the United States and New Mexico Constitutions because they were not given personal notice of the Commission\u2019s proceedings on Burlington\u2019s application for increased spacing requirements. We agree with the district court that the failure to provide Holders with actual notice of the proceedings on Burlington\u2019s application for increased spacing requirements is dispositive. We do not agree, however, that it is necessary to reach the question whether this failure amounts to a violation of Holders\u2019 constitutional rights to due process. \u201cCourts will not decide constitutional questions unless necessary to a disposition of the case.\u201d Huey v. Lente, 85 N.M. 597, 598, 514 P.2d 1093, 1094 (1973); cf. Garcia v. Las Vegas Med. Ctr., 112 N.M. 441, 444, 816 P.2d 510, 513 (Ct.App.1991) (\u201cThere would be no need to decide what federal procedural due process required if the plaintiffs could obtain the desired relief from an [order requiring] compliance with state law.\u201d). As we explain below, our disposition in this case only requires interpretation of the OGA and the Commission\u2019s procedural rules. Nevertheless, we are guided by the canon of statutory construction that \u201cif a statute is susceptible to two constructions, one supporting it and the other rendering it void, a court should adopt the construction which will uphold its constitutionality.\u201d Huey, 85 N.M. at 598, 514 P.2d at 1094. We apply this canon to the Commission\u2019s procedural rules in the same manner that we apply it to a statute. See Wineman v. Kelly\u2019s Restaurant, 113 N.M. 184, 185, 824 P.2d 324, 325 (Ct.App.1991) (applying a canon of construction used to interpret statutes to an interpretation of a rule adopted by the Workers\u2019 Compensation Administration). In applying this canon, we are also mindful of the holding in Uhden v. New Mexico Oil Conservation Comm\u2019n, 112 N.M. 528, 817 P.2d 721 (1991), which relied on principles of due process to conclude that notice had been constitutionally deficient.\n{18} In reaching its holding, the Uhden court noted that \u201c[t]he essence of justice is largely procedural.\u201d Id. at 530, 817 P.2d at 723. We reaffirm this principle today. In this case, however, we do not rely on the Uhden court\u2019s constitutional rationale. Cf. State ex rel. Hughes v. City of Albuquerque, 113 N.M. 209, 210, 824 P.2d 349, 350 (Ct.App.1991) (\u201c[The] violation of a state law requiring specific procedures does not necessarily constitute a violation of constitutional due process.\u201d); see also Bernard Schwartz, Administrative Law \u00a7 5.2, at 204 (2d ed.1984). Instead, we conclude that Holders are entitled to relief because the notice procedures required by the OGA and the Oil and Gas rules were not followed. See Additional Notice Requirements (Rule 1207), Oil Conservation Div., Energy, Minerals, & Natural Resources Dep\u2019t, 19 NMAC 15.N.1207.D (Feb. 1, 1996) (\u201cEvidence of failure to provide notice as provided in this rule may, upon a proper showing be considered cause for reopening the case.\u201d); cf. Hughes, 113 N.M. at 210, 824 P.2d at 350 (concluding that a party \u201cmay be entitled to relief if the procedures mandated by city ordinance were not followed\u201d); Atlixco Coalition v. Maggiore, 1998-NMCA-134, \u00b6 15, 125 N.M. 786, 965 P.2d 370 (concluding that an administrative agency \u201cis required to act in accordance with its own regulations\u201d). Accordingly, we reject the Commission\u2019s contention that it provided the requisite notice for a hearing on a rule amendment, as well as Burlington\u2019s contention that Holders were not entitled to actual notice of the proceedings under the OGA.\n{19} The relevant statutory notice provisions in the OGA are contained in Sections 70-2-23 and 70-2-7. Section 70-2-23 imposes a \u201creasonable notice\u201d requirement for all oil and gas hearings. This section provides, in pertinent part:\nExcept as provided for herein [i.e., exceptions for emergencies], before any rule, regulation or order, including revocation, change, renewal or extension thereof, shall be made under the provisions of this act, a public hearing shall be held at such time, place and manner as may be. prescribed by the [D]ivision. The [Division shall first give reasonable notice of such hearing (in no case less than ten days, except in an emergency) and at any such hearing any person having an interest in the subject matter of the hearing shall be entitled to be heard.\n(Emphasis added).\n{20} Section 70-2-7 provides: \u201cThe [Division] shall prescribe by rule its rules of order or procedure in hearings or other proceedings before it under the [OGA].\u201d Although the text of Section 70-2-7 does not expressly mention the word \u201cnotice,\u201d the Division, pursuant to the authority in this section, has adopted rules establishing notice requirements for oil and gas hearings.\n{21} In terms of publication notice for an oil and gas hearing, the Division has adopted the following rule:\nNotice of each hearing before the Commission and before a Division Examiner shall be by publication once in accordance with the requirements of Chapter 14, Article 11, N.M.S.A.1978, in a newspaper of general circulation in the county, or each of the counties if there be more than one, in which any land, oil, gas, or other property which is affected may be situated.\nPublication of Notice of Hearing, Oil Conservation Div., Energy, Minerals, & Natural Resources Dep\u2019t, 19 NMAC 15.N.1204 (Feb. 1, 1996). The referenced statutory provision mandates the following:\nAny notice or other written matter whatsoever required to be published in a newspaper by any law of this state, or by the order of any court of record of this state, shall be deemed and held to be a legal notice or advertisement within the meaning of [14-11-1 to 14-11-4, 14-11-7, 14-11-8 NMSA 1978].\nNMSA 1978, \u00a7 14-11-1 (1937) (bracketed material in original).\n{22} The Division has also adopted additional notice rales for specific situations. See 19 NMAC 15.N.1207. One such situation involves applications that may affect a property interest of other individuals or entities: \u201cIn cases of applications not listed above, the outcome of which may affect a property interest of other individuals or entities: (a) Actual notice shall be given to such individuals or entities by certified mail (return receipt requested).\u201d 19 NMAC 15.N.1207.A(11).\n{23} Pursuant to the rules promulgated under Section 70-2-7, Burlington and the Commission provided notice by publication. Although the notice by publication satisfied a necessary component of the statutory notice requirements, it was by no means sufficient. Section 7-2-23 of the OGA requires \u201creasonable notice\u201d as a condition precedent to a hearing. This \u201creasonable notice\u201d mandate should circumscribe whatever Division rules are promulgated for the purpose of notifying interested persons.\n{24} In terms of the rules, we note that, at the time of its filing, the application, if approved, would have affected Holders\u2019 interests in Section 9. Specifically, we note that the increased spacing requirements would have expanded the scope of Holders\u2019 production-cost liability to include proportional allocations for wildcat gas wells drilled anywhere in a 640-aere area, rather than in a mere 160-acre area, and that Holders would have been able to avoid these unforeseen allocations only if they limited their rights to obtain production royalty payments in the future. See \u00a7 70-2-17(C). Furthermore, if the Commission increased the spacing requirements, a subsequent pooling order \u2014 if granted \u2014 would have precluded the owners from drilling deep wildcat gas wells anywhere else on Section 9. See 19 NMAC 15.C.104.B(2)(b) (June 30,1997).\n{25} If Burlington succeeded in pooling Holders\u2019 Section 9 property interests, and if Holders intended to enjoy the privileges of development and ensure receipt of full royalties in the future, they would have been compelled to contribute to the drilling costs associated with Burlington\u2019s high-risk wildcat well. In fact, as Holders maintain, they would have had to bear a higher percentage of the costs in aggregate than even Burlington would have had to bear. Although Burlington was well aware of these facts, it refused to provide Holders with actual notice of the proceedings on its application for increased spacing. Given that Burlington intended to affect Holders\u2019 Section 9 property interests with a subsequent pooling order, under Rule 1207.A(11) Holders were entitled to actual notice of the spacing application. Because neither Burlington nor the Commission provided Holders with actual notice of the proceedings on the spacing application, Holders were denied the reasonable notice that the OGA and its implementing regulations required.\n{26} Burlington asserts that Rule 1207.A(11) only applies to \u201cadjudicatory\u201d proceedings and has no application in this case because the proceedings in this case concern a rule amendment rather than an adjudication. To support the assertion that actual notice was not required for a rule amendment, Burlington and the Commission expend much effort in distinguishing Uhden, 112 N.M. at 530, 817 P.2d at 723, on the ground that the order in that case \u201cwas not of general application, but rather pertained to a limited area ... [and][t]he persons affected were limited in number.\u201d Upon analysis, however, it becomes clear that this distinction is not at all dispositive. It is well established that notice requirements are determined on the basis of \u201c \u2018the character of the action, rather than its label.\u2019 \u201d Miles v. Board of County Comm\u2019rs, 1998-NMCA-118, \u00b6 9, 125 N.M. 608, 964 P.2d 169 (quoting Harris v. County of Riverside, 904 F.2d 497, 501-02 (9th Cir.1990)), cert. denied, No. 25,292, 126 N.M. 107, 967 P.2d 447 (1998). As one commentator explains:\n[N]o test can draw anything like a mathematical line between rulemaking and adjudication____ [A]n adjudication may be based upon a new rule of law that is announced for the first time by the deciding tribunal. Conversely, a rule may have an effect on particular rights comparable to a decision in an adjudicatory proceeding involving the given parties.\nSchwartz, supra, \u00a7 4.15, at 190 (footnote omitted); accord 2 Am.Jur.2d Administrar tive Law \u00a7 155, at 176 (1994); 4 Jacob A. Stein et ah, Administrative Law \u00a7 33.01[1], at 33-3 n. 2 (1998); cf. Uhden, 112 N.M. at 532-33, 817 P.2d at 725-26 (Montgomery, J., dissenting) (asserting that \u201cthe notoriously slippery distinction between rulemaking and adjudication is not particularly helpful in this case\u201d). On the facts presented here, we cannot conclude that the Commission\u2019s order is accurately characterized as simply a rule amendment as it applies to Holders. Moreover, neither the \u201creasonable notice\u201d requirement in Section 70-2-23 of the OGA nor the notice requirements in Rule 1207.A are expressly limited to adjudications.\n{27} In High Ridge Hinkle Joint Venture v. City of Albuquerque, 1998-NMSC-050, \u00b6 5, 126 N.M. 413, 970 P.2d 599, we observed the following rules of statutory interpretation:\nThe first rule is that the \u201cplain language of a statute is the primary indicator of legislative intent.\u201d General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 76, 703 P.2d 169, 173 (1985). Courts are to \u201cgive the words used in the statute their ordinary meaning unless the legislature indicates a different intent.\u201d State ex rel. Klineline v. Blackhurst, 106 N.M. 732, 735, 749 P.2d 1111, 1114 (1988). The court \u201cwill not read into a statute or ordinance language which is not there, particularly if it makes sense as written.\u201d [Burroughs v. Board of County Comm\u2019rs, 88 N.M. 303, 306, 540 P.2d 233, 236 (1975)].\nThese canons of statutory construction apply to regulatory and rule interpretation as well. See Wineman, 113 N.M. at 185, 824 P.2d at 325.\n{28} The language of Section 70-2-23 of the OGA plainly states that, except for emergencies, the requirement of \u201creasonable notice\u201d applies to hearings regarding \u201cany rule, regulation or order, including revocation, change, renewal or extension thereof.\u201d In addition, Rule 1207.A expressly provides that \u201c[e]ach applicant for hearing before the Division or Commission shall give additional notice as set forth below.\u201d The rule makes no mention of \u201cadjudication\u201d or \u201crulemaking,\" or other words of similar import. The plain language of Rule 1207.A(11) applies to \u201ccases of applications not listed above, the outcome of which may affect a property interest of other individuals or entities.\u201d The only limitations on the phrase \u201ccases of applications\u201d are the modifying phrases \u201cnot listed above\u201d and \u201cthe outcome of which may affect a property interest of other individuals or entities.\u201d Because an application for increased spacing requirements is not listed earlier in the rule, and because the spacing order in this case clearly would affect Holders\u2019 Section 9 property interests, this case is governed by the plain language of Rule 1207.A(11).\n{29} After careful review of the administrative record, we are not convinced that Burlington or the Commission have substantially complied with the \u201creasonable notice\u201d requirements of the OGA or the specific notice requirements of Rule 1207.A(11) in this case. See 19 NMAC 15.N.1207.C (\u201cAt each hearing, the applicant shall cause to be made a record ... that the notice provisions of this Rule 1207 have been complied with____\u201d). Our conclusion that substantial compliance is lacking makes it unnecessary for us to reach the issue whether strict compliance is required in this instance. Cf. Green Valley Mobile Home Park v. Mulvaney, 1996-NMSC-037, \u00b6\u00b6 10-11, 121 N.M. 817, 918 P.2d 1317 (discussing circumstances in which strict compliance with mandatory notice provisions of a statute is required).\n{30} The record shows that (1) Burlington had actual knowledge of Holders\u2019 interests in Section 9, (2) Burlington targeted Holders\u2019 interests long before it applied for increased well-spacing requirements, (3) Burlington intended to affect Holders\u2019 interests with a subsequent pooling order, (4) Burlington had actual knowledge of Holders\u2019 identities and whereabouts, and (5) Burlington had regular contacts with Holders. Under these circumstances, neither Burlington nor the Commission have shown that sending actual notice to Holders would have been more difficult than sending actual notice to the other persons with potentially affected property interests whom the company chose to notify in this ease. Indeed, Burlington\u2019s pri- or dealings with Holders would appear to have made it easier to notify Holders than to notify others. Because Holders were not provided with actual notice under these circumstances, we conclude that Burlington and the Commission did not comply with the notice requirements of the OGA and its implementing regulations, and this failure to comply renders the Commission\u2019s order void with respect to Holders. Thus, we need not reach the issue whether the Commission\u2019s order should be voided on other grounds.\nin.\n{31} Because Burlington and the Commission did not comply with the notice requirements of the OGA and its implementing regulations, we conclude that the Commission\u2019s Order No. R-10815 concerning the spacing requirements for deep wildcat gas wells in the San Juan Basin is void with respect to Holders. Accordingly, we affirm the district court\u2019s final judgment in this matter.\n{32} IT IS SO ORDERED.\nBACA, FRANCHINI and SERNA, JJ., concur.\n. We do not consider the effect, if any, of the changes brought about by the 1998 amendment to Section 70-2-25(B) because this appeal was taken well before the effective date of that amendment.", "type": "majority", "author": "MINZNER, Chief Justice." } ], "attorneys": [ "Marilyn S. Hebert, Special Assistant Attorney General, Santa Fe, Kellahin & Kellahin, W. Thomas Kellahin, Santa Fe, for Appellants.", "Gallegos Law Firm, P.C., J.E. Gallegos, Jason E. Doughty, Santa Fe, for Appellee." ], "corrections": "", "head_matter": "1999-NMSC-021\n978 P.2d 327\nTimothy B. JOHNSON, Trustee for Ralph A. Bard, Jr., Trust u/a/d February 12, 1983, et al., Plaintiffs-Appellees, v. NEW MEXICO OIL CONSERVATION COMMISSION, Defendant-Appellant. Timothy B. Johnson, Trustee for Ralph A. Bard, Jr., Trustee u/a/d February 12, 1983, et al., Plaintiffs-Appellees, v. Burlington Resources Oil & Gas Company, Defendant-Appellant.\nNos. 25,061, 25,062.\nSupreme Court of New Mexico.\nApril 13, 1999.\nMarilyn S. Hebert, Special Assistant Attorney General, Santa Fe, Kellahin & Kellahin, W. Thomas Kellahin, Santa Fe, for Appellants.\nGallegos Law Firm, P.C., J.E. Gallegos, Jason E. Doughty, Santa Fe, for Appellee." }, "file_name": "0120-01", "first_page_order": 156, "last_page_order": 163 }