Fiscal impact reports (FIRs) are prepared by the Legislative Finance Committee (LFC) for standing finance

committees of the NM Legislature. The LFC does not assume responsibility for the accuracy of these reports

if they are used for other purposes.

Current FIRs (in HTML & Adobe PDF formats) are a vailable on the NM Legislative Website (legis.state.nm.us).

Adobe PDF versions include all attachments, whereas HTML versions may not. Previously issued FIRs and

attachments may be obtained from the LFC in Suite 101 of the State Capitol Building North.

F I S C A L I M P A C T R E P O R T

SPONSOR Tsosie

DATE TYPED 3/7/2005 HB

SHORT TITLE Implied Easements On Certain Public Lands

SB 1027

ANALYST Aguilar

APPROPRIATION

Appropriation Contained Estimated Additional Impact Recurring

or Non-Rec

Fund

Affected

FY05

FY06

FY05

FY06

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB 1051

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

Commissioner of Public Lands (SLO)

SUMMARY

Synopsis of Bill

Senate Bill 1027 consists of legislative finding that Native Americans resided on land that is

now part of the state of New Mexico and developed pathways and home sites that pre-date the

ownership rights asserted by the United States and that at the time of the federal enabling act of

June 20, 1910. The bill further notes no surveys documenting the traditional use or occupancy

of the land by Native Americans were conducted at that time.

The bill provides that the current use of home sites and roads used since January 6, 1912 by

New Mexico residents on lands conveyed to the state of New Mexico by the federal enabling

act, and still owned by the state is permitted by implied easement and includes the right to im-

prove roads and provide utilities.

Senate Bill 1027 -- Page 2

Significant Issues

Senate Bill 1027 recites that Native Americans have been using trust lands for many centuries.

The state land office notes when New Mexico received its grant of lands under the Enabling Act,

the Commissioner was required to locate and classify all lands before the grant was confirmed by

the federal government. Lands which were occupied by Native Americans or other wise taken

by settlers or other federal reservations or purposes were not available, and the state had to locate

and select other lands in lieu of those already taken. The lands currently held in trust were thus

already surveyed for conflicting uses and approved for trust ownership by the federal govern-

ment. Any Native American use of trust lands has occurred outside the bounds of their proper

reservations and is considered to be un-permitted use by the land office.

TECHNICAL ISSUES

The Attorney General’s Office raises the following questions as potential technical issues to be

considered by the legislature:

•

Who are the persons who can claim easements.

•

What constitutes a “home site” or “road” for the purposes of the bill.

•

Where are the home sites and roads referred to in the bill located.

•

How many home sites and roads will be affected.

•

What constitutes “current use.” Permanent occupation. Occasional use.

•

Can the owner of an easement cut off access by other citizens.

•

Charge a fee for use of the easement.

•

How would the bill affect mineral rights.

The Attorney General’s Office notes that under current law a home site cannot be obtained by

easement. The bill recites findings that as of the date of the 1910 enabling act, the home sites and

roads it refers to were not surveyed. Among the elements needed to establish an easement are

that the home site or road has been used since January 6, 1912, when New Mexico became a

state. It is not clear whether what is contemplated is continuous use or whether intermittent use

would suffice.

ALTERNATIVES

The State Land Office has proposed consideration to introduce a bill that would appropriate gen-

eral fund to the Office of Indian Affairs to settle the outstanding Native American trespass is-

sues. The land office notes this approach would result in a much more expeditious and final

resolution to the problem.

PA/lg