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

SPONSOR Feldman

ORIGINAL DATE

LAST UPDATED

1-30-07

2-27-07 HB

SHORT TITLE Conservancy District Liability Immunity

SB 486/aSJC

ANALYST Woods

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

Duplicates HB445

SOURCES OF INFORMATION

LFC Files

Responses Received From

Energy, Minerals and Natural Resources Department (EMNRD)

SUMMARY

Synopsis of SJC Amendment

EMNRD indicates that Senate Judiciary Committee amendment to Senate Bill 486 requires that,

in order for irrigation and conservancy districts to receive immunity, the district and the trail

managing entity must enter into a written agreement that the trail managing entity must agree to

assume the operation and maintenance of that portion of the district’s property used for the trail,

and that the trail managing entity shall be subject to liability as provided in the Tort Claims Act.

The amendment adds no appropriation to the legislation.

Synopsis of Bill

Senate Bill 486 seeks to amend Section 41-4-6 NMSA 1978 to add a new subsection, 41-4-6(C),

that would exclude irrigation and conservancy districts from the waiver of liability under 41-4-

6(A), to the extent such districts authorize any part of their property to be used as part of trails

within a state park, the state trail system or a trail established and managed by a local public

body.

Senate Bill 486/aSJC – Page

2

SIGNIFICANT ISSUES

EMNRD notes that trails are the number one recreation priority that New Mexico citizens

identified in the 2004 State Comprehensive Outdoor Recreation Plan. Trails are popular in both

urban and rural locations across the state; improve community quality-of-life; stimulate

economic development and create jobs; tie into efforts to improve public health and fitness; and

enhance conservation and recreation programs. Networks of canals, levees, ditches, paths and

roads within irrigation and conservancy districts in New Mexico currently comprise large,

informal trail systems in many portions of the state, particularly along the Rio Grande Valley.

These networks have been used for generations, but are mostly not open to public access for

recreation by irrigation and conservancy districts.

EMNRD states that concerns raised by irrigation and conservancy districts about potential

liability associated with public access for recreation prevents districts from permitting portions of

their ditch networks to be utilized in trail systems that would have extensive public benefits.

Several new, popular projects, including the “Ditches to Trails" project in Bernalillo County, the

“Rio Grande Trail" (an effort to stitch together a multi-use trail paralleling long stretches of the

river), and efforts to create more public trails along ditch systems in Dona Ana County are

currently stymied by this liability situation. Moreover, currently, irrigation and conservancy

districts retain immunity for damages arising out of the operation or maintenance of works used

to divert or store water. These works include canals, ditches and drains along which trails can or

could exist. If any irrigation or conservancy district were to allow a trail to be established along

one of its canals, ditches or drains, then concern has been raised by districts that the district may

be deemed to have lost their immunity if a district’s permission to allow trail use on its property

means is construed to mean it is operating a public park.

EMNRD indicates that the amendment to Section 41-4-6 makes clear that if a district allows a

portion of its property to be used for a trail, then it retains its immunity, but the entity operating

or maintaining the trail (for example, the state or a local public body) would continue to be liable

for any damages that arise from use of the trail, pursuant to Section 41-4-6(A). SB 486 therefore

enhances the ability of the state and local governments to provide more trails for the citizens by

providing a mechanism to irrigation and conservancy districts to allow portions of their property

to be used for public trails. Enactment of SB 486 would remove a major impediment to these

key players participating in trails projects and would be a catalyst for getting trail networks that

already exist along the Rio Grande and in other places opened to public use. SB 486 would

retain liability for such trails with the entity actually managing the trail for recreation. The State

Trails System Act actually already has a provision that relieves from liability (except for gross

negligence) any “person or corporation" that grants a trails right-of-way to Energy, Minerals and

Natural Resources Department (EMNRD). (16-3-9 NMSA 1978) SB 486 would grant similar

protection to irrigation and conservancy districts.

PERFORMANCE IMPLICATIONS

EMNRD suggests that SB486 will augment EMNRD’s State Parks Program performance in

providing recreation to the public by facilitating development and utilization of a trails in state

parks and as part of the statewide trails system. Increasing the number and length of trails will

have a positive impact on visitation and revenue, two State Parks Division performance

measures.

Senate Bill 486/aSJC – Page

3

CONFLICT, DUPLICATION, COMPANIONSHIP, RELATIONSHIP

Duplicates HB445

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

EMNRD observes that the State Trails System Act designates EMRND as the lead agency to

administer trails at the state government level. Progress statewide on some major trails projects

would continue to struggle because of the impediments posed by the existing liability situation

for irrigation and conservancy districts.

BFW/mt