Monday, February 1, 2010

Whites Peak land swaps head to NM Supreme Court

After months of investigating, the State Attorney General’s Office filed a petition with the NM Supreme Court, on Monday, asking the justices to stop four controversial land exchanges at Whites Peak — contending the swaps violate state law and are unconstitutional.

In fact, the petition characterized public auctions, used by the State Land Office and private ranchers, in the bidding process, as “shams.”

Attorney General Gary King said he believes Land Commissioner Pat Lyons did not follow the “procedural safeguards that are necessary to assure the state got the best deal” through the public auctions.

“By the time they got to the point where they published the public auction the parameters had been set so there could only be one possible bidder,” King said. “The public auction requirement for State Trust Land exchanges with private parties appears to be predetermined in the first two of the four proposed deals.”

But, the land office’s Chief Legal Counsel Robert Stranahan said he is confident “we have done exactly what every commissioner in the history of the land office has done.”

King wants the High Court to issue a writ of mandamus and an emergency stay to halt the deals with Express UU Bar Ranches, Stanley Ranches, CS Cattle, and Galloway Ranch.

Lyons wants to trade 14,000 acres of trust land -- most of it in the Whites Peak area north of Ocate, but the deal also includes 3,600 acres near Espanola and 40 acres at near Mesa Del Sol (South of Albuquerque) -- for 9,600 acres now owned by the four ranchers.

‘Deal doesn’t add up’

State Rep. Brian Egolf, who has characterized the deals as being too secretive, said the court filing is “a very positive step.”

Last year, Egolf called for more legislative oversight of the State Land Office and grilled Lyons about how the deal benefits public schools –the beneficiaries of the trust.

“I’m very glad that the attorney general has recognized, like so many other people, that this deal doesn’t add up and is asking for intervention so that the beneficiaries of the trust and the people of New Mexico just don’t get stuck with the damages,” Egolf said.

If the court decides to hear the case they could set a new legal precedent, because the petition filed on Monday addresses a relatively narrow question never addressed by a New Mexico court:

Does the Commissioner violate the duty imposed on him by the Enabling Act, the New Mexico Constitution, and his fiduciary obligations to the trust by conducting substantially constrained “public auctions” in order to achieve a predetermined result?

“We’re not saying that the land commssioner doesn’t have the authority to do exhanges, but in this particular case it appears he steered it to one bidder,” King said. “From my perspective this is a good valid way for two parties that disagree to get a resolution to a dispute.”

But Stranahan, said while he recognized King was testing a novel constitutional legal theory, he cautioned him against challenging some exchanges and not others.

“If they want to void this particular sale … then I’m assuming the attorney general is going to go in and void all similar sales, which could include some of his [King's] own land,” Stranahan said. “If he’s seeking to pick and choose which things he’s going to go after he needs to remember that the Enabling Act doesn’t have a time sensitive restriction on it. You can go back and void anything.”

Stranahan maintains the exchanges benefit the people of New Mexico, because “by consolidating the lands and taking out in holdings we're going to increase our land value by $13 million. No one seems to care about, the AG certainly doesn’t.”

He believes there is a political angle to the current controversy and said his boss, Lyons “has shown political fortitude to try to do this.”

“Lyons has been the far most productive commissioner in the history of the office,” Stranahan said. “You can’t try to claim that he’s not good at what’s he’s doing, because he’s obviously been the best.”

He claims the office, which has sought creative ways to develop state trust land, is being blocked by anti-development people.

“We are prohibited from law improving and developing them ourselves,” Stranahan said. “It seems to me that it’s just a desire for us to sit on the land and not do anything. Commissioners have done that in the past. We’re proactive. We’re out there trying to find solutions.”

King disputes claims that his legal action is just a politically expedient act in an election year.

“After being actually advised by our office that we had concerns about these particular land exchanges they decided to do it anyway,” King said. “This particular filing in the court didn’t come out of the blue. There have been lengthy discussions about what we think the requirements of a good land exchange are. If he had decided to do this kind of deal after the election then we’d be in court next year.”

Attorney General King says the unusual step of bypassing the lower courts and petitioning the Supreme Court was taken because of the constitutional issues in question, the immediate effects on the public interest, and the fact that more White Peak land exchanges are proposed.

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