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SPONSOR: |
McSorley |
DATE TYPED: |
02/25/03 |
HB |
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SHORT TITLE: |
Access to Leased Public Lands |
SB |
761 |
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ANALYST: |
Gilbert |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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NFI |
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(Parenthesis
( ) Indicate Expenditure Decreases)
LFC Files
Response
Received From
State
Land Office (SLO)
Attorney
General’s Office (AGO)
Game
and Fish Department (GFD)
SUMMARY
Synopsis
of Bill
Senate Bill 761 amends NMSA 1978, § 19-7-28, to
require the State Land Office (SLO) to include provisions in grazing or
agricultural leases allowing reasonable public access across a lessee’s private
property if it is the only way to get to the state’s leased property.
Significant
Issues
Landowners that do not have a public road going
through their private property to the lease land often deny the public access
or charge a trespass fee.
The Game and Fish Department
(GFD) sends officers to state land during the hunting season upon
receipt of complaints from hunters stating that landowners are not opening
their leased state
lands (via public
access) as per the state land hunting lease agreement. This takes time and manpower
and routinely occurs during the fall hunting season.
An easement by
necessity occurs when a party cannot get to their land without crossing through
another’s land. The New Mexico Supreme
Court has ruled that the State Land Office can require that a lessee agree to
an easement within the State’s leased property. See Lea County Water Co. v. Reeves, 43 N.M. 221 (1939). The Court has not ruled on whether the State
can require an easement for itself or its citizens over private property in
order to gain access to the State’s leased property.
TECHNICAL ISSUES
The State Land Office identified the following concerns with this bill:
This bill may violate the New Mexico Enabling
Act, § 10 and the New Mexico Constitution, Art. XIII, Sec. 1 by providing the
public free and unfettered access to state trust lands. Under the Enabling Act state trust lands are
held in trust for specifically designated beneficiaries, not for the public at
large. See, e.g., Powell v. Forest
Guardians, 130 N.M. 368, 24 P.3d 803 (2001) (Conservations groups do not have
standing to en-force provisions of the state trust). The New Mexico Enabling Act forbids as a breach of trust the use
of any trust lands, “or of any money or thing of value directly or indirectly
derived there from” for other than the
purposes for which the trust was created or other-wise contrary to the Act. Enabling Act. of June 20, 1911, § 10, 36
Stat. 557. In recognition of the
Enabling Act’s mandates, NMSA 1978, § 19-6-3 criminalizes public entrance onto
state trust lands unless pursuant to a lease or other legal right to enter
those lands that in turn provides some benefit to the trust, and NMSA 1978, §
19-6-5 imposes an affirmative duty upon trust land lessees to prevent
trespass. Thus, authorizing public
access to state trust land is in irreconcilable opposition to the governing
federal and state constitutional law.
Requiring a potential or existing lessee to allow access to his or her private land without compensation may result in an unconstitutional taking of the potential or existing lessee’s private property. See, e.g. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 112 S.Ct. 2886 (1992).
RLG/prr/njw