PRC wants independent investigation

The New Mexico Public Regulation Commission decided it wants an independent third-party to investigate last week’s natural gas supply interruption to over 40,000 New Mexico Gas Company customers.

The PRC, at the urging of several commissioners, directed its Acting Chief of Staff to prepare an agreement providing for the retention of an independent third party to investigate and file a report with the Commission regarding the cause of the service disruption.

Commissioners say they want their investigation to focus on what happened and how to prevent future gas delivery failures. They also want the investigator to examine whether New Mexico Gas Company's response to the situation was appropriate, such as whether NMGC’s decisions regarding which customers should be curtailed and for how long, and what steps can be taken to ensure that such a situation does not occur again in the future.

PRC Chairman Pat Lyons said that having an independent entity conduct the investigation protect the public’s interest.

“We believe that in order for us to get the most comprehensive and objective information possible, an outside source must be contracted,” Chairman Lyons said. “The Commission will, of course, consider the views of NMGC, Commission Staff, the Attorney General and other interested parties before coming to any decisions. There were far too many people adversely affected by this situation and we want to ensure that New Mexicans never have to endure this kind of hardship again.”

Lyons’ desire to hire an independent investigator was largely endorsed by his Commission colleagues who approved the measure. An NMGC representative who attended Tuesday’s meeting said he agreed that an independent investigation would be prudent.

The Commission expects to finalize its order early next week, thus commencing the investigation process.

The PRC’s Pipeline Safety Bureau and its Utility Division will assist in the investigation.

“We want this done promptly, but we also want to make sure that it’s done thoroughly,” Chairman Lyons added. “New Mexico’s citizens deserve nothing less.”

Several taxpayers say the PRC is already independent of the legislature and executive branches and that they believe it's the commissioners job to do the investigation.

One person we talked to said, "That's what what we pay the PRC members to do."

The final structure and format of the investigation will be determined by the Commission at its Feb. 15 meeting.

From a news release.

Land office lawyers call AG's claims ludicrous

Attorneys representing the State Land Office say because Land Commissioner Pat Lyons is granted ”complete control over the care, control, and disposition of state trust lands,” the Supreme Court should reject Attorney General Gary King’s premise that four controversial land swaps at Whites Peak were predetermined “shams.”

A month ago, the Supreme Court granted an emergency petition filed by King that effectively halted those swaps. Now justices will have to decide if Lyons’ proposals violate any laws or if they may continue as planned.

Land Office Chief Legal Counsel Robert Stranahan, who directed a team of contract attorneys and filed the Land Office’s response with the court last week, told us that the “SLO is not a public auction house,” and that “the AG is “100 percent wrong on the law.”

“The Attorney General’s Office already has an opinion that says we can do land exchanges,” Stranahan said, referring to an opinion issued by former Attorney General Tom Udall.

“The commissioner is the one that decides what’s in the best interest of the trust – he has a fiduciary duty to the trust, and that’s what he’s exercising,” Stranahan said.

Stranahan said the commissioner’s authority is laid out in the state’s constitution, and “to suggest that we would need somehow to seek some other kind of guidance on how to exercise that authority is just improper.”

The Land Office has proposed trading about 11,000 acres of trust land around Whites Peak for about 9,600 acres of private land in an effort to consolidate the checkerboard area north of Ocate. The office says it is trying to clearly define state and private holdings and help eliminate problems with trespassing and littering on private lands.

Stranahan rejects the AG’s assertion that the bids were steered to predetermined parties.

“To suggest that we had negotiations with private parties is absolutely true. You bet we did. It’s completely within the province of the commissioner to do that,” Stranahan said. “If we are trying to fix this issue we need to go with the people who would potentially be bidders, but that doesn’t preclude someone else from bidding.”

He claims the SLO doesn’t even need to conduct a public auction if the end result of an exchange increases the value of the land.

‘Bidding process was flawed’

Former game commissioner Oscar Simpson, who now works as a campaign coordinator for the New Mexico Wildlife Federation, disagrees.

He told us at a game commission meeting in Santa Fe last week “the bidding process needs to start over.” Simpson is upset because, he said, he doesn’t believe the SLO’s bid process was transparent or fair.

“It was a flawed process,” Simpson said. “The attorney general quite plainly asked the court to intervene because of the process in which the State Land Office proceeded.”

Families in the area, hunters and sportsmen groups have protested the deals. They claim Lyons is giving away pristine wilderness area that has been hunted by generations of New Mexico families, and they fear the land will be closed off to them and the public by the private ranchers.

“Every aspect of what they did to inform the public and the game commission was devious,” Simpson said. “The attorney general looked at all the records and said it wasn’t a public process – that it was an inside deal. By the time anyone else found out it was too late.”

He told us he thinks Lyons is “trying to get these land swaps pushed through” because it’s his final year in the land office.

“This is his last-ditch effort to appease his friends and political contributors,” Simpson said. “He’s certainly giving private ranchers a primo deal as far as big game parks, ranches and their land.”

'The public hasn't really benefited'

Simpson said he thinks state laws that regulate land exchanges are antiquated, and the “process of public auctions has basically been prostituted.”

“In the past, we’ve lost about four or five million acres of state land. A lot of this has been under the cover, and the public hasn’t really benefited – especially all the trustees and beneficiaries.”

Hunting guide Albert Goake agrees.

“This land swap has nothing to do with boundaries, vandalism or poaching. It’s all about the money,” Goake said. “Those ranchers are going to make millions of dollars selling trespasser fees for the elk permits.”

Simpson claims big land owners are coming in from out of state and buying up ranches because of the value of wildlife, “especially where you have a lot of big game and bull elk.”

“The big game hunts, that run anywhere from $8,000 to $15,000, are worth a lot of money, and are worth a helluva of a lot more than cattle grazing, and this basically augments the value of the ranch, because you can get so many elk tags, and the resale value is tremendous,” Simpson said.

Land worth more

On the same day that the SLO attorneys filed their response with the court, the League of United Latin American Citizens (LULAC) filed a brief in support of the Attorney General’s efforts. LULAC wants the justices to consider historic land grants given to Spanish settlers in the Whites Peak area.

In its brief, LULAC said, “The Whites Peak land and other land at issue here is highly likely to have originally been land held within community land grants.”

They claim land involved in the proposed exchange “is worth far more than the Land Commissioner asserts when its cultural and historic value is adequately taken into consideration.”

Attorney General spokesman Phil Sisneros told us that the attorney general’s office is still reviewing the response filed with the Supreme Court by the SLO.

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.

Is NM Land Office making deals behind closed doors?

Rep. Brian Egolf
by Peter St. Cyr

Tuesday is the the final day to submit a bid at the State Land Office to acquire thousands of state land near Whites Peak in Northern New Mexico.

“We’re losing 4,000 acres of prime hunting and fishing land in exchange for scrub brush along a desolate highway,” State Rep. Brian Egolf (D-Santa Fe) said. “It’s not a fair trade to give up timber, wooded areas and incredible water resources on the mesa top. It doesn’t make any sense to me.”

The first-term representative believes the only way to stop a deal planned by New Mexico State Land Commissioner Pat Lyons and two private ranchers is for the state public schools (which are the beneficiaries of state lands) to file a lawsuit.

Egolf told us he believes the deal between Express UU Bar Ranches, LLC, Stanley Ranches, and the state land office has been in the works for months, if not years.

So on Friday, Egolf grilled Lyons, at a Legislative Finance Committee hearing in Santa Fe, about the land office’s plan with the ranchers.

“There has been no public process up to this point,” Egolf said. “It has all been done behind closed doors which is the opposite of the way we need to be doing things with our public lands.”

Land Commissioner Pat Lyons

A complicated deal defines boundaries

Lyons told 770KKOB News that the land swap includes four different exchanges and his detractors shouldn’t analyze just one. He insists the four land swaps need to be looked at as a group.

“It’s been very controversial area for about 50 years because it’s all checker boarded,” Lyons said. “It has private land mingled in with state land, and state land mingled in with private land. So it’s always been a contention of private property rights versus access.”

The land commissioner said after the deal is completed “it’s going to be continuous acres of 25,000 acres on one side and 18,000 acres on the other side with the state land being in the middle and that way we’ll know where the definite boundaries are.”

Still, Egolf wants to know how the deal helps public school children. At the hearing, Egolf asked Lyons to provide the benefits.

“I’m very sad to say that I learned that he can present no justification whatsoever for doing this land transfer,” Egolf said. “I asked him explicitly -- ‘how does this land transfer benefit the school children of the State of New Mexico?’ -- and he couldn’t answer the question.”

But, Lyons is defending the deal, which he said has been advertised, as required by law, for 10-days.

“The state trust always has to receive benefits,” Lyons said. “We make at least 10%. We only exchange surface for surface. We always keep our subsurface, because we don’t know what the value of the mineral is underneath there. ”

The land commissioner, who is term-limited, and is not running for re-election in 2010, also insists the land office benefits on the appraised value of each exchange.

Is the deal really a win-win?

“The major thing about it is we’re going to improve the wildlife habitat so much up there. And it’s going to improve the quality of the hunting up there,” Lyons said. “We’re going to close some roads that are eroded that aren’t good for the environment. At the same time we’re going to try to get one good all-weather road in there for all familes to have access. It’s a win-win situation.”

But it’s hunting and fishing that have Gov. Bill Richardson and Egolf concerned. They fear once fences and gates are put up the ranchers will be “in a great position to open private hunting camp with pristine land.”

“Once its private land the regular folks can’t hunt on it anymore, because it’s not public property, so UU Bar and Stanley Ranches will be able to fence this land off and keep people out,” Egolf said. “People from the North who traditionally have used this as prime hunting and fishing land they’re not going to be able to go there anymore. White Peaks is not some anonymous random piece of property. This is an important area culturally for the Northern part of the state.”

The issue of access began to emerged six years ago when the ranchers from Oklahoma put up a barrier — which prevented sportsman from crossing through the ranch on a public road to access the state lands.

After litigation in 2003, the New Mexico Supreme Court ruled against UU Bar and the road was reopened.

“You take land people have enjoyed for generations and because one person decides it’s a good idea it’s going to be gone forever,” Egolf said. “The governor and legislature can’t do things like that. We’ve got constituents to answer to and we’ve got public meeting requirements and all these things to make sure that there’s huge amount of public input to every decision we make. At the land office it’s the opposite. They’re doing everything they can to keep it secret.”

Lyons claims nothing was done in secret and said public comment remains open until 4pm on Tuesday.

“The bid process closes Tuesday for one of the first part of the exchange. The second one is on December 8th, and the third and fourth haven’t been advertised yet, so we don’t even have a bid in the office yet," Lyons said. "They don’t even come in until the last day. When the come in we’ll evaluate all of them and see what’s in the best interest of the trust and then we’ll go from there.”

More public hearings proposed for land deals

But Egolf, who couldn’t find any maps on the land office’s website finally received maps and other documents after filing an inspection of public records request, doesn’t believe the process has been open at all.

In fact, he believes the land office “wanted as little attention as possible because they know that this is a bad deal for New Mexico.”

“You would expect if that’s true they wouldn’t know every inch of property that they are swapping for because they haven’t received a bid yet, but they have this map that is incredibly detailed that shows not only all the land the state land office has put up, it also shows all the land they are anticipating getting and each parcel that they expect to get has been appraised and measured. So how do they know what’s coming if they haven’t gotten the bid yet?” Egolf asked.

Now Egolf is proposing more oversight, review and public hearings on state land exchanges.

“The State Land office is the most powerful office you’ve never heard of,” Egolf said. “He’s got no oversight, no review, and no public process. So as long as he publishes a notice in a newspaper that he wants to dispose of this property he can sell it to anybody he wants to for any price that he thinks is appropriate. He doesn’t have to show any analysis about what makes this a good deal for the school kids of New Mexico.”

Egolf said he’s considering introducing legislation to make future land deals follow the same open meeting rules that the government agencies and the legislature follow.

“I will be pursuing legislation to require that these land swaps and distributions and distributions of public land be done after public hearings and after a proper analysis of the economics of these kinds of swaps,” Egolf said. “I believe everything can be done through legislation. I don’t think you need a change in the constitution to add to some oversight to the process.”

For now, Egolf believes the only way to stop the proposed land deal is to file suit.

“Public scrutiny is critical in this process. He [Lyons] needs to understand that people are paying attention,” Egolf said. “hopefully we won’t have these kinds of bad deals done in the future.”