At today's hearing on the White Peak land swap controversy, the New Mexico Supreme Court grilled lawyers representing both Attorney General Gary King and State Land Commissioner Pat Lyons—but after an hour of questioning and another 30 minutes' deliberation, the verdict was a simple: we need more information.
The Court gave the parties 30 days to submit new briefs that would answer two questions:
1. Whether the Enabling Act authorizes the Land Commissioner to dispose of public lands by accepting a land exchange and, if so, are there any limitations to that authority; and
2. To what extent, if any, the 1990 rejection by the voters of New Mexico of Constitutional Amendment 5, proposing an amendment to Article 21 [of the 1910 Enabling Act], had on this authority, if any.
"It is troubling that the attorney general is doing nothing to fight corruption is Santa Fe, yet he buckles under political pressure and spends thousands of man hours and assigns 10 attorneys to litigate a land exchange," Lyons says in a statement.(Phil Sisneros, the communications director for the Attorney General's office, says it's a good thing that the court is giving the White Peak issue ample consideration.)
King and Lyons are engaged in a sort of proxy war over White(s) Peak, a patchwork of public and private land straddling Mora and Colfax counties. For years, depending on whom you ask, White Peak has been either the site of endless trespassing and bad access or a virtual utopia. Lyons, who is of the former view, recently approved a deal to solve the patchwork problem by consolidating state trust lands and swapping them for private ranchland. An uproar ensued: Hunters, legislators and wildlife activists protested the deal, saying it was underhanded and would result in a net loss of public land. Ultimately, the pressure built to the point that King sued to stop the swap through a writ of mandamus—which was the subject of today's hearing.
King's claim is that the White Peak swap happened without proper public input—namely, an auction at which the highest bidder gets the land. Lyons maintains no such auction is necessary, a point he bases on a 1991 opinion by then-Attorney General Tom Udall.
That's one thing the court wants resolved. But in the hearing, a more subtle legal question also emerged: If the problem the Land Office is trying to solve involves "checkerboarding," or problems arising from the confusing patchwork of public and private land, then how could it be resolved without exactly this: a land swap with the particular person who owns the private land? Moreover, why would anyone else want to buy a disconnected smattering of mountainous, inaccessible state land?
So aside from David Stanley, a rancher who owns islands of private land scattered among state trust land in White Peak, "there's no one else in the universe that can solve that problem!" Justice Richard Bosson exclaimed. Which raises a whole other issue: Is a targeted land exchange really okay? Or does it just amount to going through the motions of a public process everybody knows is purely hypothetical?
At any rate, this story isn't over. Check back here 30 days hence.
Here's the court order (click to enlarge).