45th legislature - STATE OF NEW MEXICO - first session, 2001

RELATING TO HIGHWAYS; PROVIDING TERMS FOR CERTAIN RIGHT-OF-WAY AGREEMENTS; DECLARING AN EMERGENCY.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. A new Section 67-3-71.1 NMSA 1978 is enacted to read:

"67-3-71.1. [NEW MATERIAL] RIGHT-OF-WAY AGREEMENTS-- NAVAJO NATION--TERMS.--

A. The department, in acquiring highway rights of way over lands owned by the Navajo Nation, in accordance with the provisions of applicable federal law and rule, shall accept a grant of a right of way by the secretary of the interior to the department pursuant to Navajo Nation approval, on the following terms and conditions:

(1) the term of a right-of-way agreement shall commence upon its issuance by the secretary of the interior and extend for as long as the right of way is used for constructing, maintaining, rehabilitating, operating and administering a highway;

(2) the following rights are appurtenant to a grant of a right of way:

(a) the right to design, construct, maintain, rehabilitate, operate and administer the highway as part of the state highway system;

(b) the right to manage access to and from the highway and to issue driveway permits;

(c) the right to accommodate utilities within the right of way; provided, that relocation of existing utilities outside of existing right-of-way corridors for utilities, and location of new utilities, shall require amended or new grants of rights of way for the relocation or location of new utilities in accordance with the provisions of 25 U.S.C. Section 323 and 25 C.F.R. Part 169, including amendments or successor provisions to those provisions;

(d) the right to enter into appropriate service line agreements with utility companies for the provision of utility services to the right of way, including gas, water, sewer, electricity, telephone, television and other utilities, without further consent by the Navajo Nation, on the condition that: 1) the agreement is for the sole purpose of supplying utility services to the right of way; 2) the agreement authorizes utility service lines only within the right of way; 3) the term of the utility agreement does not extend beyond the term of the right of way; 4) an executed copy of the agreement, together with plats or diagrams showing with particularity the location, size and extent of the service lines, are filed by the state or the utility company with the Navajo Nation and with the secretary of the interior within thirty days of its execution; and 5) the agreement is otherwise in accordance with the provisions of 25 C.F.R. Part 169.22, including amendments or successors to those provisions;

(e) the right to install and maintain traffic control devices and to take other reasonable traffic safety measures;

(f) the right to set and post speed limits;

(g) the right to require tolls for the use of the highway;

(h) the right to close the highway and issue permits for the temporary use of the highway by the public; provided that the same right also is expressly reserved to the Navajo Nation; and

(i) upon the state performing each of the covenants, agreements, terms and conditions contained in the grant of the right of way, the right to peaceably enjoy the right of way and all rights appurtenant to the right of way, in accordance with applicable federal law, without hindrance, interruption, ejection or molestation by the Navajo Nation or by any other person claiming to be an agent of or claiming authority from the Navajo Nation;

(3) expressly reserved to the Navajo Nation is full territorial, legislative, executive and judicial jurisdiction over the right of way and all lands burdened by the right of way, including:

(a) without limitation, all persons, including the traveling public, within the right of way;

(b) all activities conducted or otherwise occurring within the right of way;

(c) enforcement of speed limits set and posted by the department;

(d) enforcement of Navajo Nation laws applicable to the operation of motor vehicles; and

(e) adjudication of disputes arising from motor vehicle accidents or other conduct or activities occurring within the right of way;

(4) the right of way and all lands burdened by the right of way are and forever remain Navajo Indian country for purposes of Navajo Nation jurisdiction; and

(5) any other terms and conditions required by applicable federal law or rule or are otherwise agreed upon between the Navajo Nation and the department, that are not inconsistent with the terms and conditions set forth in this subsection or other applicable state or Navajo Nation law.

B. The department shall enter into amendments of all existing grants of rights of way by the secretary of the interior over lands owned by the Navajo Nation, with the secretary of the interior, subject to all applicable federal laws and rules, in order to provide that the rights of way are in accordance with the terms and conditions of Subsection A of this section."