Pueblo Design
 La Jicarita

A community advocacy newspaper for northern New Mexico

Box 6 El Valle Route, Chamisal, NM 87521

Volume XIII

June 2008

Number VI


Current Issue




About Us




Interview with Congressman Tom Udall

State Property Tax Division Seeking to Enforce Restrictive Classification of Grazing Lands By Kay Matthews


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

New State Program Gives Rural Landowners Money for Land Protection By Daniel Claussen, Conservation Director, Santa Fe Conservation Trust


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.


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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