Interview with Congressman Tom
Udall
Editor's Note: U.S. Representative Tom Udall, who
has represented northern New Mexico for 10 years, is
currently running for the U.S. Senate seat vacated by Pete
Domenici. La Jicarita News met up with him between
campaign stops at the Guadalajara Grill in Taos. He
requested time to give an overview of his campaign before
answering our questions.
Udall: One of the things that I think has been a
hallmark of my career is doing what's right regardless of
what the political consequences are. My grandfather used to
say, public service is doing what's right and letting the
chips fall where they may. In all of my years in public
service, from being a federal prosecutor, the state Attorney
General, and being in Congress, that's been my record.
Prosecuting people in my own party didn't ruin my career.
You have to deal with what comes in the door. That's my
past, and in the future I want to stand up for middle class
New Mexicans. I think the issues we need to work through are
education, health care, and the employment
situation&emdash;we need to insure that young people don't
have to leave the state to get good jobs. With regard to
education, we need to completely revamp the No Child Left
Behind. I think we're teaching to the test rather than
teaching critical thinking. On the issue of health care, I'd
like to see things done right now, this year. We don't need
to wait for a new president. We know some significant things
we can do to take care of a major group of the uninsured. We
need to expand SCHIP for children under 18, which we tried
to do previously but President Bush vetoed it. And we need
to let people who are between 55 and 64, who are close to
retirement, buy into Medicare if they don't have insurance.
Medicare is a set-up program, it has a defined set of
benefits, and people pay a premium. For small businesses,
one of the programs I've fought for is to let them have the
same plan that members of Congress have. And as you know,
the middle class is being crushed with rising prices
&endash; gasoline, home heating and cooling costs, premiums
on health care, and the cost of college. In the next five
months I want to get this message out to the people. This is
the first time in a very long time we've had an open Senate
seat. We've got a real challenge here, how we grow the jobs
we have and how we redirect LANL, which I know is one of the
things you want to talk about. I'm in a real struggle to try
to get Los Alamos to focus on nonproliferation and on energy
research because of our energy crisis.
La Jicarita News: We have several questions that
pertain to Los Alamos. In last month's La Jicarita we wrote
about the legislation you introduced to extend Special
Exposure Cohort Status for LANL employees who have been made
ill from exposure to radionuclides and other toxins. What do
you think are the chances for getting this bill passed and
what can you do to expand the budget so that all workers who
are entitled to SEC status will receive benefits?
Tom Udall: We're going to fight to do everything
we can now that we have the majority in the Congress to get
this legislation through. I think there's a very sympathetic
ear on the Judiciary Committee and the other committees of
jurisdiction to the plight of these workers. The important
thing is to move it forward enough this year so that when we
have a new Labor Secretary next year and others in the
administration, we can get their endorsement and have them
start putting things into the budget. You can fight for
these things at the Congressional level, and I will as a
member of the Appropriations Committee, but the best way to
get it is to have the President put it in his budget because
he usually gets the majority of what he wants. I think we'll
have a new attitude from a new president.
LJN: The House defeated Representative Steve
Pearce's amendment to restore the $10 million that had
previously been cut for the Reliable Replacement Warhead
(RRW). You voted against his amendment. What do you want
your constituents to understand about future votes regarding
development of the warhead?
Udall: A couple of things here are important.
Number one, we need a new Strategic Nuclear Posture Review
post 9/11. The reason that this is important is that we
haven't taken a look at how nuclear weapons fit in with the
entire defense posture in the world. You need the experts to
all weigh in on this and come before Congress and explain
the best way to deal with all the situations world wide. Is
it build new warheads? Or is it try to deal with the problem
directly. The second thing is the report that came out from
a group of eminent scientists that said the warheads we have
now have a life much longer than what we suspected. What
that means is that we now have a much bigger window to work
with the rest of the world to reduce nuclear weapons rather
than build new warheads. That's what I'd like to see
pursued. We have signed the treaty to work towards reducing
the number of nuclear warheads and eventually eliminate
nuclear weapons altogether. The third part is that there
have been a lot of questions as to whether you can build a
new nuclear warhead without underground testing, which would
violate the Nuclear Test Ban Treaty that we've already
signed. And I certainly don't think we should violate that.
I voted previously to eliminate the RRW and I think this is
an issue we need more people to focus on because it will
determine where we head with our national laboratories.
LJN: The New Mexico Environment Department signed
a Consent Order in 2005 with the Department of Energy to
clean up approximately 700 contaminated sites at LANL. A
recent report by the DOE Inspector General states that it is
unlikely the remediation schedule will be met and the delays
may increase the risk of exposure for employees and the
public and increase the overalcost of cleanup. What can be
done about this?
Udall: I've pushed for an additional $100 million
above the President's budget for cleanup for this fiscal
year. I've worked closely with ED Secretary Ron Curry, who
believes that additional amount is necessary to meet the
terms of the Consent Order. We've had a problem with both
Democrats and Republicans with cleanup. You look around the
country. We have billions of dollars of backlog in cleanup
and we always seem to dedicate money to new initiatives. We
should be focusing on the cleanup because that's the legacy
that needs to be taken care of first.
LJN: The city and county of Santa Fe and Las
Campanas are counting on surface water from the Rio Grande
to help meet their domestic water needs. But some citizens
are concerned that the proposed Buckman Diversion Treatment
Plant will not prevent potential radionuclide contamination
migrating from LANL. Do you think this diversion project
should be put on hold until citizens can be guaranteed a
clean water supply.
Udall: I would like to work with the city to make
sure that all the tests are done that need to be done to
show that the health of Santa Feans and others will not be
impacted by this water. I've talked with the city about it.
They are concerned, and I know there is a group of concerned
citizens, and we need to make sure we put in place the
review process and the testing that will assure everyone
that they are going to get clean drinking water. I need to
get briefed on what it's going to take to prevent any kind
of contamination from getting into the water supply.
LJN: Indian water rights settlements that will
affect New Mexico's water supply and allocation have been
signed and are waiting funding from the federal, state, and
tribal governments. The federal government has clearly been
reluctant to fund the billions of dollars necessary to
implement these settlements. In this time of climate change
do you think the amount of water being allocated is
realistic, and do you think the settlements will actually
get funded?
Udall: There are a couple of issues here. If we
continue with drought and the global warming predictions,
all of our water compacts are using numbers that are way too
high. That's a reality we need to bring home to people and
have a frank discussion about. What I'm pushing for is a
system in Washington that puts a price on carbon dioxide
emissions. They call it cap and trade, but basically you're
talking about capping the emissions and having the existing
emissions become more expensive every year. That sends a
signal to every industry and individual that we need to
bring our energy usage downand our carbon emissions down. If
we do that we can avoid some of the major consequences that
are headed in our direction. If we don't, we're going to
face serious water problems. When I talk about global
warming in the West, and particularly in New Mexico, the
thing I talk about first is that this is a water rights
issue. This is going to impact us in a more dramatic way
than anything has in centuries. And why? Very simply, the
way Western water works is the forests provide stor-age for
the snowfall in winter that seeps into the aquifer,
recharges it, and some of the runoff is captured in
reservoirs. If these forests burn down, which is what is
happening in catastrophic fires, then we have nothing to
hold the snowpack, so then you get slides and floods, you
don't have the recharge, and you completely change the water
picture of the west. We've got an even tougher situation
than the rest of the country because it's going to be much
hotter in the Intermountain West according to global warming
predictions. So I'm pushing for a strong cap and trade bill
and all the other things we need to do like renewable
electricity standards for utilities, biofuels like
cellulosic ethanol, fuel efficiency standards for
automobiles, and a massive research program to look for
future breakthroughs in alternative technologies. If we do
all of these things simultaneously, and quickly, we can head
off global warming and still maintain our quality of
life.
LJN: As you know, in 2004 the GAO released its
report regarding injustices associated with the federal
government's adjudication of Spanish and Mexican land
grants. It outlined five possible options for responding to
those concerns. Are we closer to actually implementing any
of those options besides the No Action Alternative.
Udall: (Laughs) First of all let me say that I'm
very proud of being part of the GAO effort and I pushed very
hard to get the GAO people out here on the ground so they
could really understand this. We've taken some big steps
forward getting the report out, defining a community land
grant, doing things that I think are important. But we still
don't have the consensus within the delegation to move
forward on this. I've always been a champion of the bill
that was introduced in the House by Governor Richardson, but
we don't have consensus on that either. We're now going to
enter a situation, about six months from now, where we have
four new members of the Congressional delegation. One of the
top priorities should be sitting down as a delegation and
come to closure on this. We have the report and we now need
to start moving in the direction on how to rectify these
injustices. The other part of this that I would like to work
on is to collect all of the history in places so that New
Mexicans can learn about it. We need some kind of study
center that would collect all the documents and orginal
research and make sure it's available to everyone on the
internet and in other ways. There are possibilities at the
University of New Mexico, the Park Service, the State
Records and Archive Center. I'm trying to find money to do
that.
State Property Tax Division Seeking
to Enforce Restrictive Classification of Grazing Lands
By Kay Matthews
An order by the state that counties must enforce a more
restrictive classification of agricultural grazing lands for
tax purposes has already made big news in Mora and San
Miguel counties. In fact, Mora County Assessor Angela Romero
asked three state tax employees to leave her office last
February until they could present her with a written
directive ordering them to change property values.
What is at issue is a state statute that stipulates
counties must comply with carrying capacity determinations
on how many acres it takes to sustain one animal unit (AUM)
without any supplemental feeding by the rancher. Any
property less than that amount does not qualify as
agricultural grazing land and must be assessed at a higher
tax rate. In a letter to the editor of the Las Vegas Optic,
Rick Silva, Director of the State Property Tax Division,
wrote that it is the responsibility of the state to insure
that all county assessors enforce state statutes regarding
the classification of land taxes.
La Jicarita News spoke with Mora County Assessor
Romero, who told us that most county residents who own
cattle raise them on fewer than 47 acres, which is the
minimum number of acres for a grazing classification in that
county. Many of these parcels are owned by members of the
same family who graze their animals communally. She claims
that the "one size fits all" state directive is not
necessarily appropriate in Mora County (or in many northern
New Mexico counties). She also requested, and received, an
extension in property evaluations until 2009, and wants to
have her staff, or state employee staff, visit potentially
affected properties before enforcing the statute. The state
agreed to help the Mora staff this month. Romero also told
La Jicarita that her office will be sending out letters in
every property evaluation notice this year providing tax
payers with information about the possible increases in
assessments.
La Jicarita News also contacted Assessor Darlene
Vigil of Taos County, which had recently been through an
evaluation by the State Property Tax Division and was found
to be in compliance with the statute. Taos County's minimum
AUM for a grazing classification is 80 acres, which is
assessed at $4 per acre. If a rancher owns less than that
required number of acres, his or her land can be assessed in
the other agricultural classification of dryland, at $115
per acre, or irrigated land, at $491.
The Property Tax Division uses carrying capacity
determinations developed by New Mexico State University.
According to Rick Silva, these carrying capacities are
averaged for each county, but because of terrain variations
within the counties&emdash;from mountain terrain to high
desert&emdash;Silva would like to see each county broken
down into regions for better assessment. The difference in
the minimum number of acres for the grazing classification
in Taos and Mora counties, according to Silva, is because of
the more extensive water resources in Mora. And because of
higher land market values, taxes on agricultural
land&emdash;grazing, irrigated, or dryland&emdash;will
continue to be adjusted accordingly. NMSU is currently
working on new carrying capacity guidelines for the tax
division, which will make property tax adjustments at the
end of the year.
Mora and San Miguel County constituents contacted state
Representative Tomás Garcia and Senator Phil Griego
about their issues with the grazing classification
requirements. According to Representative Garcia, he and
Senator Griego have attended numerous meetings with
constituents and have also been meeting with staff at the
Property Tax Division to discuss possible changes to tax
regulations, which are set by the tax division, and changes
to the statute, which would have to be addressed by the
state legislature. For example, the minimum carrying
capacity of 47 acres in Mora and San Miguel counties is a
regulation that has been promulgated by the tax division
because of the recommendations of the NMSU study. Garcia
agreed with Rick Silva that county-wide carrying capacities
are not adequate to address the terrain differences, and he
plans on working with the department to find remedies. He
also agreed with Mora County Assessor Romero that the "one
size fits all" regulations fails to take into account the
unique situation of property divisions in northern New
Mexico. He would like to see the development of new policies
that address family subdivisions where land may be divided
among family members but the families continue to graze
cattle on their combined properties. He also pointed out
that some lands are assessed as grazing lands when there are
no animals utilizing the property. Garcia told La
Jicarita that he and Senator Griego will continue to
work on this issue to make the process as fair and equitable
as possible.
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ANNOUNCEMENTS
Sick Nuclear Weapons Workers Rally
June 25
Claimants under the Energy Employees Occupational Illness
Compensation Program (EEOICPA) are forming a united front to
make Congress and the public aware of the desperate need for
legislative reforms to the compensation program. In honor of
Ed Walker, founder of the Bethlehem Steel Action Group, the
local AFL/CIO passed a resolution calling for change to
EEOICPA. The Bethlehem Action Group will travel to the
Department of Labor's Cleveland District Office and hold a
rally asking for reforms. Claimants from the Oak Ridge,
Nevada Test Sit, Rocky Flats, and Los Alamos will rally in
support of the Bethlehem Steel Action Group initiative and
call attention to the reasons EEOICPA needs to be reformed.
We need the nation to insist that Congress makes the
Department of Labor, Energy, and Health and Human Services
obey the letter and the intent of the law. We need claimants
(approved and denied), family members, and friends to attend
these rallies. We need more sites to hold similar rallies.
There is strength in numbers.
Rallies will be Held on Public Streets at the Following
Locations on June 25, 2008 between 11:30 and 12:30 p,m,
Española, New Mexico: 412 Paseo de Oñate
Cleveland, Ohio: 1001 Lakeside Ave.
Denver, Colorado: 1999 Broadway
Oak Ridge, Tennessee: 800 Oak Ridge Turnpike, Suite
C-103
Las Vegas, Nevada: Flamingo Executive Park, 1050 E.
Flamingo Road, W-156
Contact Terrie Barrie, Alliance of Nuclear Worker
Advocacy Groups, for more information. 970 824-2260,
tbarrie@yahoo.com
• The Miranda Canyon Preserve Preliminary Plat
Application was delivered to the Taos County Planning
Department in May. This is the 5,000 acre residential
project on part of the Cristobal de la Serna Land Grant
(which stretches from Picuris Peak to Llano Quemado) now
owned by Weimer Properties, who are the heirs to Taos
merchant Alexander Gusdorf (see La Jicarita, October 2005).
The project consists of a proposed 2,200 acre residential
community with 150 homes on ten to 31 acres sites, and four
community plots comprised of a community center, horse
stable, maintenance yard, and private campground. The homes
will have individual wells and septic systems. (Weimer
Properties attempted to provide a community water system,
but was unable to do so. See La Jicarita News, May 2007.)
The remaining 2,000 acres will be managed as the non-profit
Miranda Canyon Conservancy, dedicated to the "preservation
of history and environmentally significant elements of the
Canyon." These lands will be put under a Conservation
Easement. The Application consists of two large binders of
information on the floodplain, water supply, liquid waste,
roads and utilities, cultural properties, hydrological
report, traffic impacts, fire protection, drainage, and
other issues. A third binder includes maps of the area with
various overlays. This information is available to the
public to review at the Planning Department. The department
has begun its review, and will forward copies to various
state and county agencies, such as the Office of the State
Engineer, the Environ-ment Department, and Historic
Preservation. A public hearing will be scheduled after a
30-day request for opinion from the consulting agencies. La
Jicarita News will cover this story more extensively after
we've had time to review the application.
A Scoundrel's Argument: The GAO's Denial
of Fiduciary Duty in the Treaty of Guadalupe Hidalgo
By David Correia, Professor of Geography at the
University of Maine
Editor's Note: Various scholars and attorneys in
New Mexico have been working on a reply to the 2004 GAO
report on community land grants for the New Mexico Attorney
General's Office. David Correia was contracted by Rio Arriba
County to participate in the GAO reply. This article comes
out of that research. He is currently in New Mexico writing
a book, In a Violent State: Social Protest and Political
Repression in New Mexico.
It has been the argument of many land grant heirs and
scholars that the Treaty of Guadalupe Hidalgo imposed a
fiduciary duty on the United States to protect legitimate
Mexican property claims. By now there can be no question,
given the extensive research on land grant histories, that
land grant adjudication in New Mexico was characterized by
political partisanship, administrative bungling, commercial
swindling, and legal confusion. Despite what seems so
obvious to heirs, historians and activists in New Mexico,
the United States government clings to convoluted legal
theories that continue to rationalize the dispossession of
those grants. This article looks at one of these theories,
advanced in the 2004 GAO report. In the report, the GAO
argued that "any concerns about the specific procedures that
Congress, the Surveyor General, or the [Court of Private
Land Claims] adopted cannot be addressed under the
Treaty or international law, but only under U.S. legal
requirements such as the Constitution's procedural due
process requirements, and as noted, we conclude that these
requirements were satisfied." In other words, the United
States was free to establish an adjudication procedure of
its own design. Whether good, bad, or patently unfair, the
United States met its obligation under the Treaty by virtue
of merely having an adjudication procedure.
So, forget about the careful historical research of fraud
in the office of the Surveyor General, or the tortured and
self-serving logic of the Court of Private Land Claims, the
pattern of overly burdensome procedures, inefficient
administration, and outright fraud &endash; it just doesn't
matter. After all, the real purpose of the Treaty was to
fulfill America's Manifest Destiny. To impose a duty to
recognize, prima facie, all Mexican property claims was
unacceptable to the many hawks and expansionists who had
spend years beating the drums of war. The GAO continues this
well worn argument by asserting that Article VIII of the
treaty did not impose a fiduciary duty on the United States
when it required the U.S. to "inviolably respect" all
Mexican property claims. The GAO reminds us that Article X
was deleted. Article X would have required that the United
States recognize, prima facie, all Mexican property claims.
Without Article X the Treaty was not self-executing, the GAO
argues, and, therefore, as the GAO is giddy to remind us,
wipes away any wrongdoing. But the focus on Article X
obscures an important point of entry for land grant heirs,
the fiduciary duty placed on the United States by Article
VIII.
The final paragraph of Article VIII reads as follows: "In
the said territories, property of every kind, now belonging
to Mexicans not established there, shall be inviolably
respected. The present owners, the heirs of these, and all
Mexicans who may hereafter acquire said property by
contract, shall enjoy with respect to it guaranties equally
ample as if the same belonged to citizens of the United
States." The GAO went to great lengths to miscast the
argument many historians and land grant heirs have made in
the past regarding Article VIII. Specifically, this article
clearly places the United States in a fiduciary relationship
to Spanish and Mexican grant claimants. In the report, the
GAO addressed this charge by (1) miscasting the argument as
related only to arguments for the protection of claims after
confirmation, and (2) employing intellectual dishonesty in
ignoring the full breadth of fiduciary duties and instead
latching onto only those that suit their arguments.
The GAO's arguments regarding fiduciary duty are clear
from the text of the report: "[s]ome land grant
heirs and advocates of land grant reform have expressed
concern that the United States failed to ensure continued
community ownership of common lands after the lands were
awarded during the confirmation process. They contend that
the Treaty of Guadalupe Hidalgo imposed a duty on the United
States to ensure that these lands were not subsequently lost
through other means, either voluntarily or involuntarily,
and that because the United States did not take such
protective action, the United States breached this alleged
"fiduciary duty." The authors go on to suggest that
"[r]egardless of how ownership was lost, some heirs
allege that under the Treaty of Guadalupe Hidalgo, the U.S.
government had a fiduciary duty to protect the ownership of
their lands even after the confirmation process was
completed."
By limiting the "fiduciary duty" argument to one based on
subsequent obligations to adjudication, the GAO limited the
nature of the fiduciary duty to an argument about whether
the United States entered into a guardian-ward relationship
with Spanish/Mexican grant claimants similar to that
established between the United States government and Indian
tribes. The GAO, in fact, goes so far as to refer to Mexican
common-prop-erty land claims as "non-pueblo." In their
report, the GAO offers a rebuttal and critique of claims of
continued protections, rather than a direct discussion of
the real issue: whether or not the Treaty established a true
fiduciary duty. In this the entire discussion of "fiduciary
duty" in the GAO report is a straw man argument designed to
divert our attention from the nuances of both the Treaty and
the notion of fiduciary duty.
Examining the GAO denial of a fiduciary relationship
imposed by the Treaty requires understanding, first, how to
identify a fiduciary from a non-fiduciary relationship (The
GAO didn't want to explore that question for fear of where
it would lead them), and, second, determining what
obligations follow from the imposition of a fiduciary duty.
The GAO simplified the notion of fiduciary duty in a
self-serving manner. Courts have divided fiduciary duties
into formal and informal categories. Even a superficial read
of the GAO report makes clear that the authors tried to
suggest that fiduciary duty is one and the same as
guardian-ward relationship. They went to great lengths to
compare Indian Policy and Spanish/Mexican land grant
adjudication to show that the U.S. had no guardian-ward
relationship with Spanish and Mexican grant claimants. This
obscures the more nuanced legal obligations embedded in
fiduciary relationships. The guardian-ward relationship is
only one of a number of types of fiduciary relationships
understood as formal.
Fiduciary relationships in the formal sense are those
obligations implied, and agreed to, by phrases like
"inviolably respected." It would be impossible for the
parties to anticipate and contract for all the contingencies
of adjudication, therefore a fiduciary duty rests with the
United States to serve the interests of Spanish/Mexican
property owners through actions designed to protect the
beneficiaries vulnerability emanating from its inability to
protect itself against the authority vested in the fiduciary
(the U.S.). The obligation of discretion and loyalty on the
part of the fiduciary in regard to the beneficiary protects
the beneficiary from possible opportunism on the part of the
fiduciary. The expectation of discretion implies that the
fiduciary will take actions of its own choosing that will
have an impact on the beneficiary. These are not fringe
concerns among legal scholars. The question of fiduciary
duties has been covered extensively by the courts and legal
scholars. One legal scholar has argued for a critical
resource theory of fiduciary duty as a way to understand the
difference between fiduciary versus non-fiduciary
relationships. According to this scholar, "fiduciary duty
connotes an obligation to refrain from self-interested
behavior that constitutes a wrong to the beneficiary as a
result of the fiduciary exercising discretion with respect
to the beneficiary's critical resources." The overly narrow
definition of fiduciary duty used by the GAO allowed it to
ignore the various kinds and broad nature of fiduciary
duties. Fiduciary relationships are much more than merely
guardian-ward relationships. Fiduciary duties are those
extra-contractual obligations that another legal scholar
called "barnacles on the ship of contract." Fiduciary
relationships encompass more than prescribed relationships
and are crucial in relationships like those created by the
Treaty of Guadalupe Hidalgo.
While Article X would have created a clear and obvious
formal fiduciary relationship between the United States and
Spanish and Mexican grant claimants, Article VIII did
establish an informal fiduciary relationship. The two
&endash; formal and informal &endash; share a set of common
characteristics and allow us to evaluate the relationship
the Treaty created between the United States and grant
claimants: (1) the existence of a resource at the center of
the relationship; (2) the vulnerability of one party in
terms of ability to preserve the resource; (3) the
requirement, therefore, for trust on the fiduciary party;
(4) the obligation for loyalty and discretion on the
fiduciary by virtue of the possibility of opportunism by the
fiduciary in the relationship; and (5) lastly, and perhaps
most important, fiduciary duties of all kinds are imposed
when it becomes impossible to anticipate and contract for
all potential contingencies.
When applied to the U.S.&endash; Spanish/Mexican grant
claimant relationship, these standards clearly establish the
United States as a fiduciary and claimants as the
beneficiary. Article VIII of the Treaty of Guadalupe Hidalgo
obligated one party (the U.S.) to act on behalf of another
(grant claimants). Property was at the heart of this
relationship. The millions of acres in scores of land grants
were the property of the beneficiaries, a class of claimants
totally dependent on the U.S (the fiduciary) to help them
realize that property right. Fiduciary duty creates an
obligation to refrain from self-interested behavior on the
part of the fiduciary. Clearly, the property at the heart of
the relationship was a resource of significant value. The
documented collusion of federal officials, such as three
Surveyors General, in land grant speculation and fraud
demonstrates the need for a recognized fiduciary
relationship because, indeed, there is no other avenue of
redress for the victims of corrupt federal agents than to
appeal to the requirements imposed on them as agents for the
fiduciary.
The GAO used a self-serving, narrow definition of
"fiduciary duty" to argue that applying this standard to New
Mexico would mean, in fact, a violation of the Articles
language of equal protection. In other words, it would
establish a level of property protection provided in a
"special manner superior to the protections afforded to
other U.S. citizens" (154). This is a shameful argument.
After millions of acres of land were stolen from thousands
of heirs, their very livelihoods and patrimony robbed from
them, the GAO defended the outcome based on contrived legal
theories and concluded by advancing nothing more than a
scoundrel's argument. This argument against "special
protections' has been used countless times by those seeking
to deny equal rights and maintain an inequitable social
order&emdash;from the racist anti-civil rights Dixiecrats in
the 50s and 60s to the those equally shameful legislators
seeking to deny the right to marriage of gays and
lesbians&emdash;the "special protections" obfuscation has
always been the argument of the intellectually dishonest in
service to the agents of repressive authority against those
seeking their legal rights.
New State Program Gives
Rural Landowners Money for Land Protection
By Daniel Claussen, Conservation Director, Santa Fe
Conservation Trust
In 2008 the state of New Mexico greatly expanded a
program that compensates landowners who wish to keep their
property protected. Known as the Land Conservation
Incentives Tax Credit, the new program is designed
specifically to reward landowners who choose to retire
certain development rights but have little taxable
income.
In place since 2004, the program was expanded to give
landowners a tax credit of 50% of the land's protected value
&endash; up to $250,000. Landowners can use the credit as a
dollar-for-dollar write-off from their state taxes. Of a
greater benefit to many New Mexicans, the credit is
transferable, allowing a landowner to sell his or her tax
credit to a third party and receive immediate cash
payment.
To earn a tax credit, a landowner must donate a
conservation easement, also known as a Land Protection
Agreement, to a non-profit land trust or government entity.
In some cases, Soil and Water Conservation Districts may
also be able to help with a conservation easement.
In use for over 100 years, conservation easements are
legal agreements that permanently retire certain development
rights of the property, as agreed upon by the property owner
and a land trust. Each conservation easement is unique in
that it restricts and protects the specific values that the
owner wishes to conserve on a particular piece of property.
These conservation values may be agricultural, scenic,
historic, ecological, or recreational. The land trust holds
the easement, taking on the responsibility to ensure that
the terms of the easement are met &endash; whoever the
future owners of the property may be.
In retiring certain development rights, a landowner is
often giving up a large amount of his or her land's
potential value. This value is determined by an appraisal
and is considered a donation by both the federal and state
government. If a landowner donates a conservation easement
valued at $500,000 to a qualified land trust, that landowner
is eligible to receive a tax credit of 50% of that value,
which is the $250,000 maximum.
A husband and wife who are co-owners of a property may be
eligible to qualify for a larger tax credit. For example, if
the conservation easement is valued at $600,000, together
they may be able to take advantage of the full 50% of that
value, or $300,000.
There are also substantial federal income tax rewards.
Ranchers and farmers who earn the majority of their income
through agriculture may also apply the value of the
conservation easement against 100% of their federal income
tax for up 15 years &endash; zeroing out their taxes. Other
property owners donating a conservation easement may deduct
up to 50% from their federal income taxes.
Once the conservation easement has been finalized the
state will issue the credit. Landowners may then sell the
credit to a third party at a reduced rate. Licensed brokers
are available to help landowners sell their credits on the
open market. The reduced rate is around 80% of the credit's
value. If a landowner earns a $250,000 credit, he or she
will receive approximately $200,000 for the sale of the
credit. Payment received for the sale of a tax credit may be
used for anything: to buy more land, pay off debt, purchase
needed improvements, etc.
Two land trusts serve northern New Mexico. The Santa Fe
Conservation Trust covers San Miguel, Santa Fe, Rio Arriba,
and Sandoval Counties. The Taos Land Trust covers Rio
Arriba, Taos, Mora, Colfax, and Union Counties. For more
information please call the Santa Fe Conservation Trust at
505-699-0206 or The Taos Land Trust at 575-751-3138.
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