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

SPONSOR Rodella

ORIGINAL DATE

LAST UPDATED

2-5-07

HB 753

SHORT TITLE Return of Lands to Certain Land Grants

SB

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Attorney General’s Office (AGO)

1

Department of Game and Fish (DGF)

SUMMARY

Synopsis of Bill

House Bill 579 seeks to require the State Game Commission to transfer ownership of unoccupied

lands under the Commission's control that have been identified as being located within the

historic boundaries of the Tierra Amarilla land grant to that land grant, if the land grant is

recognized and is operating as a political subdivision of the state pursuant to the provisions of

Chapter 49, Article 1 NMSA 1978; the land grant identifies its historic boundaries by a survey

adequate to ascertain that the land is within the historic boundaries of that land grant; the transfer

is conditioned upon the land becoming part of the common lands of the land grant; and the land

remains part of the common lands of the land grant. The bill states that if the land does not

remain part of the common lands, the land shall revert to the state.

1

The AGO response bears the caveat: “This analysis is neither a formal Attorney General’s Opinion nor an Attorney

General’s Advisory Opinion letter. This is a staff analysis in response to the agency’s, committee’s or legislator’s

request."

House Bill 753 – Page

2

FISCAL IMPLICATIONS

DGF indicates that the State Game Commission (SGC) owns three large land-tracts of wildlife

habitat and a property on which one cold-water hatchery & fishing pond each of which may exist

within the historic boundaries of the Tierra Amarilla Land Grant-Merced. Specifically, the SGC

holds title to the Edward Sargent Wildlife Management Area, Rio Chama Wildlife Management

Area, the William A. Humphries Wildlife Management Area and the Los Ojos Fish Hatchery &

Laguna de Los Compos. The properties comprise in excess of 44,000 acres of land dedicated to

public use. All four of these properties were purchased with the aid of Federal Assistance monies

allocated to the DGF from the United States Fish and Wildlife Service – Federal Assistance

Division, via the Sport Fish and Wildlife Restoration Act apportionments. Because the DGF, on

behalf of the SGC, utilized these Federal Assistance dollars to both purchase and currently

maintain all four of these properties, DGF is committed to following State assent legislation and

Federal regulations that allows DGF to participate in funding programs administered by the

USFWS-FA Division (per 50 CFR 80.3 and NMSA 1978, 17-1-28).

DGF adds that, under the federal regulations, if the ownership of the four State Game

Commission-owned properties is transferred to the Tierra Amarilla Land Grant-Merced

community without current fair market value being paid to the SGC, DGF will be found to be in

a loss of control of the four properties and therefore in “diversion" as defined under 50 CFR Part

80.4 and ineligible to participate in all USFWS-FA Federal Assistance, Sport Fish and Wildlife

Restoration programs. The inability to be eligible to participate in the USFWS-FA programs

would result in the immediate loss of approximately $11 million per year in operating revenue.

In addition, DGF would be liable for re-paying the USWFWS-FA Division 75 percent of the

current fair market value of the properties which were transferred to the Tierra Amarilla Land

Grant-Merced community. The SGC/DGF holds title to approximately 44,488 acres and current

market value is unknown at this time. DGF indicates that one-third of the department’s current

operating budget is derived from Federal Grant revenues. If the department were to be found in

diversion by the USFWS-FA Division, DGF indicates it would be greatly hampered in its ability

to conduct operations and numerous budget reductions of approximately one-third would be

necessary across the entire scope of department programs, although it provides no specific

numbers or program reductions.

SIGNIFICANT ISSUES

AGO notes that the Tierra Amarilla Land Grant was confirmed by Congress in 1860 and

patented by the United States Government to Francisco Martinez in 1881. Portions of the

original land grant have, over time, been distributed to other owners. See Jicarilla Apache Tribe

v. Board of County Com'rs, County of Rio Arriba; 118 N.M. 550 (1994); Martinez v. Mundy; 61

N.M. 87 (1956). Further, that, presumably, this bill is an attempt to return former Tierra

Amarilla Land Grant property to control of that land grant. It is uncertain as to how or when the

State Game Commission acquired the land referred to in this bill, or whether that land is now

being managed in trust for the benefit of the public as a wildlife conservation and management

area. Transfer to the land grant will remove the land from state management, and place that

responsibility with the land grant board of trustees.

OAG adds that the bill does not state whether the transfer referred to will be accomplished by

sale, trade, lease or donation. If the bill is interpreted to require the transfer of state property to

the Tierra Amarilla Land Grant by donation, it raises issues as to the status of that land grant and

House Bill 753 – Page

3

whether the state may lawfully transfer the subject real property in that manner. The bill

contemplates an interpretation that the land grant is a “political subdivision", presumably to

avoid constitutional anti-donation clause issues. See NMSA Section 13-6-2B(2) allowing a state

agency to dispose of its real property by negotiated sale or donation to its political subdivisions.

If the property is transferred by sale, other state laws governing the disposition of real property

would apply. See, for example, NMSA Section 13-6-2.1, requiring State Board of Finance

approval for certain sales of state owned real property. Further, NMSA Section 13-6-5 gives

land grants the “right of first refusal" to purchase real property within their boundaries from a

state agency.

ADMINISTRATIVE IMPLICATIONS

DGF suggests that it would have to restructure department operations to accommodate the

anticipated one-third reduction in annual operating revenues, although it provides no specific

numbers or program reductions.

BFW/nt