New Mexico Supreme Court Validates Designation of Mt. Taylor as a Traditional Cultural Property1

Introduction:  In a case that may have national significance, the New Mexico Supreme Court upheld the New Mexico Cultural Properties Review Committee's ("Committee") permanent designation of approximately 400,000 acres of public lands on Mt. Taylor in west‐central New Mexico as a traditional cultural property ("TCP"), Rayellen Resources, Inc. v. N.M. Cultural Properties Review Committee.2  The decision affirms listing this large area on the State Register of Cultural Properties under the New Mexico Cultural Properties Act (the "Act").  The court reduced the original TCP listing, however, by approximately 19,000 acres comprising common lands of the Cebolleta Land Grant,3 a Mexican land grant‐merced, the private rights to which were confirmed by the United States under the Treaty of Guadalupe Hidalgo.4   The ruling gives the State Historic Preservation Officer ("SHPO") greater input into state approval processes for activities proposed on the lands comprising the TCP or on nearby lands where proposed activities may affect the cultural values recognized by the TCP, but leaves several uncertainties in its wake.

Background and Procedural History:  In early 2008, only days after a United States Forest Service archeological report determined the cultural and ethnographic history of Mt. Taylor made it eligible for listing on the National Register of Historic Places, the Pueblos of Acoma, Laguna and Zuni, the Hopi Tribe, and the Navajo Nation (the "Nominating Tribes") nominated a somewhat different delineation of Mt. Taylor for an emergency listing on the State Register of Cultural Properties under provisions of the Act allowing for emergency listings.5 The Committee approved separate variants of the Mt. Taylor area for emergency listing once on February 22, 2008, and then again on June 14, 2008.  On April 22, 2009, the Nominating Tribes nominated another variant of the area for permanent listing.  Efforts ensued to provide the public with notice, including publication in newspapers and personal notice mailed only to surface owners despite knowing that mineral owners existed.  Following a public hearing and certain post‐hearing adjustments to the TCP area, the Committee voted to approve still another variant of the area for permanent listing on June 5, 2009, issuing a final order on September 14, 2009.

Several parties appealed the TCP to the state district court, which reversed the listing on the grounds that due process was violated, the size of the TCP was not permissible under the Act, and the common lands of the Cebolleta Land Grant were improperly included.  The Acoma Pueblo appealed to the New Mexico Court of Appeals, which granted intervention to additional appellants, the Committee and Laguna Pueblo.  The court of appeals certified the appeal to the New Mexico Supreme Court as "an issue of substantial public interest."  After oral argument was held, the New Mexico Supreme Court issued its opinion on February 6, 2014.

The New Mexico Supreme Court's Key Holdings: 

Notice was adequate: In the district court, the parties challenging the TCP listing alleged multiple due process deficiencies including lack of sufficient notice, time allocation problems during hearings, and the multiple adjustments made to the area proposed for listing.  The district court found that the notice provided by the Committee was insufficient because mineral interest owners in the area of the TCP were not provided with personal notice despite the undisputed fact that the Nominating Tribes had expressly cited impending mineral development in the uranium mining district as a basis for seeking the original emergency listing.

The New Mexico Supreme Court reversed, however, finding that the Committee provided notice "reasonably calculated to inform interested parties of the Mount Taylor permanent nomination."6   In so ruling, the court distinguished cases prescribing notice for adjudication of private property rights, considering the Committee's action in listing Mt. Taylor as a TCP "is a regulatory one more akin to general rule‐making than adjudication, one undertaken to effectuate the Committee's statutory powers to identify and preserve our state's cultural and historic heritage."7   The court concluded that personal notice to every affected person would be unduly burdensome and impractical.

The designation satisfied the Act's integrity, maintenance, and inspection requirements:  The district court held that the approximately 400,000 acres of public lands included within the Mt. Taylor TCP lacked integrity of location as required by the federal guidelines upon which the Committee had relied.   In reversing based on the substantial evidence standard, the New Mexico Supreme Court relied on the fact that the Forest Service's 2008 archeological report had found integrity of location due to "the site's ongoing relationship with traditional cultural practices and because the physical attributes of the mountain remain largely unchanged."8

The district court also held that the Mt. Taylor TCP was too large to be capable of maintenance and inspection under the Act's requirements.  The Supreme Court, however, saw "no reason, either in the text of the Act or in logic, why our state authorities are prohibited from listing a property simply because it is large."9   The court further reasoned that the state and federal public land management agencies have inspection programs, and there was no reason for the Committee to reach a conclusion regarding maintenance because the question of whether and how to inspect and maintain the property are statutory considerations that follow rather than precede the listing.

The Cebolleta Land Grant common lands are not "State Lands" under the Act: The Supreme Court upheld the district court's conclusions that that Committee improperly included common lands of the Cebolleta Land Grant in the designated TCP area and also held that excluding the lands would not undermine the overall listing.10  Interestingly, the Committee took no position on this issue on appeal, leaving it to Acoma Pueblo to argue that the inclusion was proper.  The Supreme Court relied on the history and background of the Land Grant Act to reject Acoma Pueblo's arguments.  According to the court, privately held land grants are to be "inviolably respected" under the Treaty of Guadalupe Hidalgo, and construing the Land Grant Act amendment in 2004 as transforming those private rights to public lands would constitute a "legislative taking."11  The court found itself compelled to favor "an interpretation that complies with the international treaty, the New Mexico Constitution, and our long‐ standing jurisprudence recognizing the private property rights inherent in a community land grant's common lands."12

Implications:   The New Mexico Supreme Court's decision may encourage tribes or conservationists nationally to seek large scale designations of TCPs.  As a practical matter, upholding the Committee's designation of 400,000 acres creates administrative burdens and uncertainty for future projects in this uranium and resource‐rich area.  State agencies asked to authorize or permit projects in or near the TCP area now must consult with the SHPO, which in turn will consult with the Tribes.  In essence, the issue for any undertaking requiring state approval within or adjacent to the TCP area will be whether and to what extent the project might impact historic and cultural values sought to be preserved by the designation, and whether plan adjustments could be made or alternatives pursued that might better promote those values.

This likely will be an issue not only for projects on the public lands that the court seemingly confined the TCP to by its decision, but also on most or all of the private "noncontributing" lands within the outer boundary of the TCP, as well as on adjacent lands that now would include the Ceboletta Land Grant's common lands.    Exactly what types of projects will be asserted as having impacts on the TCP, and in what locations, remains to be seen.

_____________

1For a more detailed discussion of this decision, please read Stuart Butzier's article of the same title published in the Rocky Mountain Mineral Law Foundation, Mineral Law Newsletter, Vol. 31, No. 1.

2 2014 N.M. LEXIS 40, ___ N.M. ___, ___ P.3d ___, No. 33,497 (Feb. 6, 2014) (hereafter "Slip op.").
3 Id. at 14‐16.
4 See Treaty of Peace, Friendship, Limits & Settlement, U.S.‐Mex., art. VIII, Feb. 2, 1848, 9 Stat. 922, T.S. 207.
5 NMSA 1978, § 18‐6‐12.
6 Slip. op. at 10 (citation omitted).
7 Id. at 11
8 Id. at 13.
9Id.  
10 Id. at 14.
11 Id. at 16.
12 Id.

_____________

Professionals

Practice Areas