Sizing Up Traditional Cultural Property in New Mexico

New Mexico is a land of vast expanses, mountains, mesas, and rich cultural heritages.  Cultural and historic properties are protected by New Mexico law in a manner that can impose significant restrictions and additional permitting requirements.  But should that protection extend to properties that are as large as a prominent mountain and its mesas?  Mount Taylor and its associated mesas span over 700 square miles in several counties in western New Mexico, near the city of Grants.  The “Mount Taylor Traditional Cultural Property,” as listed on the State Register of Cultural Properties in 2009, covered an area more than half the size of Rhode Island.  Earlier this year a State court decision invalidated the listing, holding as one of several grounds, that the area was too large to be listed under the New Cultural Properties Act.

Mount Taylor is important to different people for varying reasons.  Its federal, state, and private lands and resources have been used for mining, ranching, logging, and recreation.  Also, some Native Americans claim that Mount Taylor is a part of their cultural and religious beliefs.  In 2009, five Indian tribes and pueblos, concerned about potential renewed uranium exploration and development activity in the Mount Taylor area, used the New Mexico Cultural Properties Act to nominate the Mount Taylor Traditional Cultural Property to the New Mexico State Register of Cultural Properties.  A “traditional cultural property” has been defined as a property that is eligible for listing because of its association with certain cultural practices or beliefs of a community.  The tribes asserted that the nominated property had traditional religious and cultural importance to them.  Because a listing on the State Register may impose additional permitting requirements on any activity that requires a state permit and is within (and in some circumstances, merely near) the listed property, property owners and others in the Mount Taylor vicinity who could be affected by a listing expressed great concern about the nomination.

Acting on the tribes’ nomination, the state Cultural Properties Review Committee listed the Property under the Act in 2009.  But earlier this year, a reviewing court overturned the listing and held that, under New Mexico law, the size of the listing, combined with the indefinite nature of the Mount Taylor Traditional Cultural Property boundaries, was overbroad, arbitrary and capricious.  It also held that the process the Committee used for the listing was an unconstitutional violation of due process because it did not provide notice of the proposed listing to the mineral interest owners.  The attempted Mount Taylor Traditional Cultural Property listing would have been by far the largest by the State of New Mexico and possibly the largest by any state in the United States.  The matter is currently on appeal to the New Mexico Court of Appeals, and briefing has recently been completed.  The appeal also includes issues besides the size of the traditional cultural property and whether due process was afforded in the listing.  A decision could be entered by the New Mexico Court of Appeals in 2012.

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