Rayellen Res., Inc. v. New Mexico Cultural Props. Review Committee

• Decision Date: 06 February 2014
• Docket Number: No. 33,497.,33,497.
• Citation: 319 P.3d 639
• Parties: RAYELLEN RESOURCES, INC., Destiny Capital, Inc., Lynne E. Elkins, Paula D. Elkins, Joy Burns, Cebolleta Land Grant, Fernandez Company Ltd., Judith Williams Phifer, individually and as Personal Representative of the Estate of James H. Williams, Orin Curtis Cleve Williams, Rio Grande Resources Corporation, Strathmore Resources (U.S.) Ltd., Laramide Resources (U.S.A.) Ltd., Roca Honda Resources, LLC, Plaintiffs–Appellees, and Hon. Patrick H. Lyons, Commissioner of Public Lands for the State of New Mexico, Plaintiff, v. NEW MEXICO CULTURAL PROPERTIES REVIEW COMMITTEE and Alan “Mac” Watson, individually and as Chairman of the New Mexico Cultural Properties Review Committee, Defendants–Appellants, and Pueblo of Acoma and Pueblo of Laguna, federally recognized Indian Tribes, Intervenors.
• Court: New Mexico Supreme Court

319 P.3d 639

RAYELLEN RESOURCES, INC., Destiny Capital, Inc., Lynne E. Elkins, Paula D. Elkins, Joy Burns, Cebolleta Land Grant, Fernandez Company Ltd., Judith Williams Phifer, individually and as Personal Representative of the Estate of James H. Williams, Orin Curtis Cleve Williams, Rio Grande Resources Corporation, Strathmore Resources (U.S.) Ltd., Laramide Resources (U.S.A.) Ltd., Roca Honda Resources, LLC, Plaintiffs–Appellees,

and

Hon. Patrick H. Lyons, Commissioner of Public Lands for the State of New Mexico, Plaintiff,

v.NEW MEXICO CULTURAL PROPERTIES REVIEW COMMITTEE and Alan “Mac” Watson, individually and as Chairman of the New Mexico Cultural Properties Review Committee, Defendants–Appellants,andPueblo of Acoma and Pueblo of Laguna, federally recognized Indian Tribes, Intervenors.

No. 33,497.

Supreme Court of New Mexico.

Feb. 6, 2014.

Long, Pound & Komer, P.A., John Bennett Pound, Santa Fe, NM, for Appellants.

The Simons Firm, L.L.P., Frank M. Bond, Kelcey C. Nichols, Santa Fe, NM, for Appellees Rayellen Resources, Inc. and Destiny Capital, Inc.

Comeau, Maldegen, Templeman & Indall, L.L.P., Michael J. Moffett, Jon J. Indall, Santa Fe, NM, for Appellees Lynne E. Elkins, Paula D. Elkins, Joy Burns, Strathmore Resources (U.S.) Ltd., Laramide Resources (U.S.A.) Ltd., and Roca Honda Resources, LLC.

Olsen, Parden & Crow, P.C., Brett Justin Olsen, Albuquerque Business Law, P.C., Sarah L. Maestas Barnes, Albuquerque, NM, for Appellee Cebolleta Land Grant.

Cavin & Ingram, P.A., Stephen Dean Ingram, Albuquerque, NM, for Appellee Fernandez Company Ltd.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Stuart R. Butzier, Marte D. Lightstone, Albuquerque, NM, for Appellees Judith Williams Phifer and Orin Curtis Cleve Williams.

Modrall, Sperling, Roehl, Harris & Sisk, P.A., Larry P. Ausherman, Stanley N. Harris, Albuquerque, NM, for Appellee Rio Grande Resources Corporation.

Chestnut Law Offices, Ann Berkley Rodgers, Peter C. Chestnut, Albuquerque, NM, for Intervenor Pueblo of Acoma.

June Lynne Lorenzo, Paguate, NM, for Intervenor Pueblo of Laguna.

Rothstein, Donatelli, Hughes, Dahlstrom, Schoenburg & Bienvenu L.L.P., Richard Warren Hughes, Santa Fe, NM, for Amici Curiae All Indian Pueblo Council, American Anthropological Association, Association on American Indian Affairs, National Trust for Historic Preservation, Sierra Club, Society for American Archaeology, Pueblo of Tesuque, and Thomas Merlan.

Hinkle, Hensley, Shanor & Martin, L.L.P., Andrew J. Cloutier, Armstrong Energy Corporation, Ronald D. Hillman, Pittman Law Firm, P.C., Jennifer M. Heim, Roswell, NM, for Amici Curiae New Mexico Cattle Growers Association and New Mexico Farm & Livestock Bureau.

Brennan & Sullivan, P.A., Michael W. Brennan, Santa Fe, NM, for Amici Curiae New Mexico Mining Association and New Mexico Oil and Gas Association.

Law & Resources Planning Associates, P.C., Charles Thomas Dumars, Youtz & Valdez, P.C., Stephen Curtice, Albuquerque, NM, for Amicus Curiae New Mexico Land Grant Council.

Elizabeth S. Merritt, William J. Cook, Washington, DC, for Amicus Curiae National Trust for Historic Preservation.

OPINION

DANIELS, Justice.

I. INTRODUCTION

{1} We accepted certification from the Court of Appeals to review the decision of the New Mexico Cultural Properties Review Committee to recognize approximately 400,000 acres of public land on Mount Taylor as a registered cultural property under the New Mexico Cultural Properties Act. We affirm in part the Committee's decision and hold that the Mount Taylor listing was lawful under the Cultural Properties Act and that the proceedings before the Committee did not violate the constitutional guarantee of due process of law. We reverse the Committee's inclusion of 19,000 acres of Cebolleta Land Grant property and hold that land grant property is not state land as defined in the Cultural Properties Act.

II. BACKGROUNDA. Factual History and Administrative Proceedings

{2} In February 2008, the United States Forest Service released a report determining that Mount Taylor was eligible for listing on the National Register of Historic Places as a traditional cultural property. The detailed report, written by two archaeologists who spent months working with several of the mountain's surrounding tribal communities, documents the cultural and ethnographic history of Mount Taylor, which, at more than 11,000 feet, is the highest point in the San Mateo Mountains of New Mexico. The report chronicles the history of the mountain and its importance to various cultures, noting prehistoric archaeological sites predating 500 A.D. and rock inscriptions from Spanish settlers who may have passed through the area as early as 1540 with the historic Francisco Vasquez de Coronado expedition.

{3} The report concludes that Mount Taylor satisfies three out of four possible criteria for National Register listing based on the mountain's “significant contributions to the broad patterns of our history,” its association with “persons significant in our past,” and its past and potential future yield of information about our history. See36 C.F.R. § 60.4 (2008) (providing the four “National Register criteria,” each of which qualifies a site for National Register listing). The report also concludes that Mount Taylor meets the overall “integrity” criterion for National Register listing because the property was, and still is, integral to the tribal communities' practices, from traditional gathering of plants and minerals to performing pilgrimages and ceremonies, noting that the mountain's physical features that historically have attracted various cultures still exist today. See36 C.F.R. § 60.4 (requiring “integrity of location, design, setting, materials, workmanship, feeling, and association” as the “quality of significance” for each candidate property); accord Nat'l Register Bulletin 38 at 11–12 (rev. 1998), http:// www. nps. gov/ nr/ publications/ bulletins/ pdfs/ nrb 38. pdf.

{4} Ten days after the report's release, the Pueblos of Acoma, Laguna, and Zuni, the Hopi Tribe, and the Navajo Nation (collectively, the Nominating Tribes) submitted an emergency application to the New Mexico Cultural Properties Review Committee, requesting that Mount Taylor be temporarily registered as a cultural property under Section 12 of the New Mexico Cultural Properties Act, NMSA 1978, §§ 18–6–1 to –17 (1969, as amended through 2013), our state's counterpart of the National Historic Preservation Act.

{5} Under the Cultural Properties Act, the Committee is allowed to approve an emergency listing “for not more than one year, during which time the [C]ommittee shall investigate the property and make a determination as to whether it may be permanently placed on the official register” of New Mexico cultural properties. Section 18–6–12. Once a property is listed, other state departments must consult the New Mexico historic preservation officer before taking any action “which may affect a registered cultural property ... so as to preserve and protect, and to avoid or minimize adverse effects on, registered cultural properties.” Section 18–6–8.1. A consultation requirement also comes into effect when a property is deemed eligible for National Register listing, as in the Mount Taylor case in 2008 upon the release of the Forest Service report. See, e.g.,19.10.6.602(D)(13)(i) NMAC (requiring permits for new mining operations to indicate all sites included in the permit area that are “on or eligible for listing on either the National Register of Historic Places and/or the State Register of Cultural Properties”); but see19.10.3.302(D)(2) NMAC (requiring permits for “minimal impact” mining operations to indicate locations of only those cultural resources actually listed on either the national or state registers).

{6} On February 22, 2008, eight days after the Nominating Tribes submitted the emergency application, the Committee approved a one-year temporary listing. Although the Nominating Tribes included the Forest Service report as supporting documentation for the emergency application, the state nomination was slightly different from the Forest Service Report. The Forest Service relied on topography, delineating boundaries of the traditional cultural property based on the mountain's summit and its surrounding mesas, but the Nominating Tribes focused on elevation, drawing a demarcation line around the summit at 8,000 feet because, according to the Nominating Tribes, private landowners became more numerous below this elevation. The Nominating Tribes asked the Committee to recognize 422,840 acres consisting of federal land managed by the Forest Service and the Bureau of Land Management, Indian trust and Pueblo land, New Mexico state lands, and the Cebolleta Land Grant common lands. The Nominating Tribes asked that any private land above 8,000 feet be identified and excluded from the listing. On June 14, 2008, following a public comment period, the Committee again approved the emergency listing of the specified property at the top of Mount Taylor.

{7} On April 22, 2009, fourteen months after submitting their emergency petition, the Nominating Tribes nominated the same land on Mount Taylor for permanent listing under the Cultural Properties Act. In response, the Committee scheduled a public comment period that included a public hearing on May 15, 2009, the submission of written comments through May 20, 2009, and a final vote on June 5, 2009. As with the emergency petition, private land was explicitly excluded from the proposed listing as noncontributing, but the Nominating Tribes changed the listing's outer boundaries to be consistent with the topographic boundary used by the Forest Service after agreeing that it better reflected the individual tribes' shared use of the mountain.

{8} At the close of the May 15, 2009, hearing, the Committee asked the Nominating Tribes to revise the nomination and resubmit it by May 23, 2009, in order to include a gross acreage figure for...