New Mexico State Land Right-of-Way Overview (3-NM-b)
The commissioner of the NMSLO (Commissioner) regulates ROW easements pursuant to N.M. Stat. Ann. § 19-7-57.
State Land Right-of-Way Overview Process
3-NM-b.1 – Review NMSLO Records and Determine Third Party Rights, If Any
Prior to applying for a ROW easement, developers are responsible for reviewing NMSLO records to determine which rights, if any, have been conveyed to or contracted for by third parties, which would limit or prohibit the Commissioner’s issuance of additional interests. N.M. Code R. § 126.96.36.199.
3-NM-b.2 to 3-NM-b.6 – Does the Commissioner Waive the Surveying Requirement?
Developers seeking a ROW easement are required to survey the proposed land in accordance with N.M. Code R. § 188.8.131.52, unless the Commissioner waives the survey requirement. Even if waived, the developer must provide the Commissioner with a plat encompassing a detailed legal description of the proposed land as outlined in N.M. Code R. § 184.108.40.206(B).
If the survey requirement is not waived, a developer must gain survey permission from the Commissioner prior to entry for surveying activities. The written notice of intent to conduct a survey of land subject to proposed ROW may be in letter form and should describe the purpose and general location of the land. N.M. Code R. § 220.127.116.11.
The Commissioner may choose to deny the survey request, approve as is, or approve with added conditions. A denial of the survey request ends the ROW easement process. If accepted, the developer may direct a professional surveyor (as defined in N.M. Code R. § 18.104.22.168(A)) to survey the plat(s).
3-NM-b.7 – Application for Right of Way Easement
Once the plat is properly surveyed, or if the Commissioner waived the survey requirement, a developer may submit a NMSLO Application for ROW Easement. Applications must include a $100 application fee, a $75 appraisement fee, and one of the following to cover payment for damages that might occur to the state land improvements of a surface lessee:
- A single bond in the amount of $500;
- A ROW bond in the amount of $2,500 (satisfied if a $2,500 blanket bond is already on file with the NMSLO); or
- A waiver of property damage bond by the surface lessee coupled with a request that the Commissioner waive the bond requirement. N.M. Code R. § 22.214.171.124.
In addition, the application must contain a legal description of the land to be burdened by the proposed ROW, together with the survey plat (unless waived) described in 3-NM-b.2 to 3-NM-b.6. N.M. Code R. § 126.96.36.199.
3-NM-b.8 to 3-NM-b.9 – Review Application Materials for Completeness
Upon receipt of the application, the NMSLO will review the application materials for completeness. Applicants submitting incomplete applications will receive written notice of incompleteness and are allowed a reasonable amount of time to cure the deficiency. If an application is complete, the Commissioner will determine whether or not to issue the proposed ROW easement.
3-NM-b.10 - Is the Application Approved?
The Commission may approve or deny an application for a state right of way easement.
3-NM-b.11 – Right of Way Easement
The Commissioner will issue a Right of Way Easement if doing so is in the best interests of the state trust lands. The Commissioner may attach conditions to issuance of the ROW, including consideration amounts other than the amounts outlined in the applicable price schedule. N.M. Code R. § 188.8.131.52. The Commissioner may terminate the ROW easement in whole or part if the developer fails to comply with any term or condition of the grant or any applicable law or regulation. In such a case, the Commissioner will give the developer written notice that the ROW is subject to termination and allow the developer 30 days to cure the problem. N.M. Code R. § 184.108.40.206.
3-NM-b.12 – Construct Easement or ROW
Upon issuance of a ROW easement, the developer may begin construction on the lands subject to the ROW in accordance with the terms and conditions of the grant by the Commissioner.
3-NM-b.13 – Affidavit of Completion
Upon completion of construction of the ROW easement, the developer must, within 60 days after completion of construction, file with the Commissioner a NMSLO Affidavit of Completion of ROW Construction. If the developer fails to file the affidavit within 60 days, the ROW Easement is subject to termination by the Commissioner. N.M. Code R. § 220.127.116.11.
3-NM-b.14 to 3-NM-b.16 – Does Developer Require Access Beyond the Bounds of the ROW?
Developers with a valid ROW easement have no right of access over trust lands not within the actual dimensions of the ROW easement. However, if a ROW easement is not large enough to allow for vehicular or other access necessary for the maintenance, repair, or improvement of the ROW easement, developers may obtain access by applying for and receiving a temporary access permit. The process for obtaining a temporary access permit is analogous to the process for obtaining a Right of Entry Permit, see:
Right of Entry / Temporary Access Permit:
3-NM-b.17 – Does the Developer Seek Reconsideration of the Decision?
The developer may request reconsideration by NMSLO of the denial of an application for a right of way easement. N.M. Code R. § 18.104.22.168.
3-NM-b.18 – Request for Reconsideration
The developer must submit a written Request for Reconsideration to NMSLO. The request must describe the decision for which reconsideration is requested, state the grounds for reconsideration and the relief sought, and be submitted to NMSLO within 15 days after the date of the decision for which reconsideration is requested. N.M. Code R. § 22.214.171.124.
3-NM-b.19 – Review Reconsideration Request and Decision on Right of Way
NMSLO will review the reconsideration request to determine whether a right of way easement should be issued. N.M. Code R. § 126.96.36.199.
3-NM-b.20 – Is the Application Approved Following Reconsideration?
NMSLO may approve or deny an application after review. If the application is approved following reconsideration, then the developer should follow the procedures outlined in 3-NM-b.11 through 3-NM-b.16.
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