PART 24 CULTURAL PROPERTIES PROTECTION
19.2.24.1 ISSUING AGENCY: Commissioner of Public Lands - New Mexico State Land Office - 310 Old
Santa Fe Trail - P.O. Box 1148 - Santa Fe, New Mexico 87501.
[19.2.24.1 NMAC - N, 12/01/2022]
19.2.24.2 SCOPE: This part pertains to the identification and protection of cultural
properties on state trust lands.
[19.2.24.2 NMAC - N, 12/01/2022]
19.2.24.3
STATUTORY AUTHORITY: The commissioner is the executive officer of the state land office,
pursuant to Section 19-1-1 NMSA 1978. The
commissioner’s authority to manage, control, and care for state trust lands is
found in N.M. Const., art. XIII, Section 2 and in Section 19-1-1 NMSA 1978. The New Mexico Cultural Properties Protection
Act, Sections 18-6A-1 to 18-6A-6 NMSA 1978, requires the state land office, as
an agency with jurisdiction over state land, to exercise due caution to ensure
that cultural properties on state trust lands are not inadvertently damaged or
destroyed. The New Mexico Cultural
Properties Act, Sections 18-6-1 to 18-6-17 NMSA 1978, authorizes the
commissioner to initiate action against any person who violates the Cultural
Properties Act by causing damage to
or destroying cultural properties located on state trust lands. The authority to promulgate this part is
found in Section 19-1-2 NMSA 1978.
[19.2.24.3 NMAC - N, 12/01/2022]
19.2.24.4 DURATION: Permanent.
[19.2.24.4 NMAC - N, 12/01/2022]
19.2.24.5 EFFECTIVE DATE: December1, 2022 unless a
later date is cited at the end of a section.
[19.2.24.5 NMAC - N, 12/01/2022]
19.2.24.6 OBJECTIVE: The objective of this part is to establish and maintain processes to
proactively identify cultural properties on state trust lands to ensure that
such properties are not damaged or destroyed, by
generally requiring informational reviews and archaeological surveys before surface
disturbing activity on state trust lands takes place, requiring avoidance and
mitigation of damage to cultural
properties, and providing mechanisms to enforce
protections for cultural properties. This part applies to all state
trust lands, the surface of which is held in trust by the commissioner.
[19.2.24.6 NMAC - N, 12/01/2022]
19.2.24.7 DEFINITIONS:
As used in 19.2.24 NMAC, the following terms have the meaning set forth in this section unless otherwise
indicated in the text of this rule:
A. “Archaeological survey” or “Survey” means a visual inspection of land to examine, identify, record, evaluate, and interpret
cultural properties, which may include communications with potentially impacted tribes
and may include limited tests but shall not include
excavation or test excavation, as provided in 4.10.15 NMAC. An archaeological survey is conducted by an
archaeologist who meets the professional qualification standards in accordance
with 4.10.8 NMAC.
B. “Area of potential effect” or “APE”
means the geographic area or areas within which a project may directly
or indirectly cause changes in the character
or use of a cultural
property, if any such properties exist, as provided
in 4.10.15 NMAC. The APE is influenced
by the scale and nature of the project, variation in topography and vegetation,
and the results of consultations, and may be different for different kinds of
effects caused by the undertaking and may include a buffer.
C. “ARMS inspection” means a search of the New Mexico cultural resources information
system (NMCRIS) and the other cultural resource records maintained by the archaeological
records management section (ARMS) of the historic preservation division of the New Mexico department of cultural affairs,
in accordance with 4.10.15.9
NMAC.
D. “Commissioner” means the commissioner of public lands. The commissioner is the executive officer of the state
land office and may delegate to state land office staff
the performance of duties required
of the commissioner under
this rule.
E. “Cultural property” means a structure, place, site, object, or resource having historic,
archaeological, scientific, architectural, or other cultural significance. A cultural property includes a property
listed on or eligible for inclusion on either the New Mexico register of
cultural properties pursuant to the Cultural Properties Act, or listed on or
eligible for listing on the national register of historic places pursuant to
the National Historic Preservation Act, 54 U.S.C. 300101 et seq.
F. “Cultural Properties Act” means the New Mexico Cultural Properties Act,
Sections 18-6-1 through 18-6-17 NMSA 1978.
G. “Cultural Properties Protection Act” means the New Mexico Cultural Properties
Protection Act, Sections 18-6A-1 through 18-6A-6 NMSA 1978.
H. “Party” means any person
applying to the commissioner for a lease, sublease, easement, permit, license,
grant, amendment, certificate or other instrument issued by the commissioner of
public lands; any person to whom the commissioner has issued a lease, sublease,
easement, permit, license, grant, amendment; certificate or other instrument;
and any person who is otherwise lawfully present and conducting activities on
state trust lands, including well operators and unit operators.
I. “Person” is a natural
person or group of persons, or a partnership, corporate entity, association or organization,
governmental entity, or any other legal entity.
J. “Project” means any surface disturbing activity or proposed surface disturbing
activity on state trust lands that requires a lease, sublease, easement,
permit, license, grant, amendment, certificate, or other entitlement from the
commissioner, as well as any surface disturbing activity that is directly
undertaken by the state land office.
Project activity includes temporary work spaces and installation surface
disturbing activities.
K. “State historic preservation officer” or “SHPO”
means the individual appointed pursuant to Section 18-6-8 NMSA 1978 of the Cultural Properties Act who serves as the director
of the historic preservation division
of the New Mexico department
of cultural affairs.
L. “State land office” means the New Mexico state land office.
M. “State trust lands” or “trust lands” means those lands, their natural products,
and all assets derived from them, which are under the care, custody, and
control of the commissioner.
N. “Surface disturbance” or “Surface disturbing” means any ground disturbing or ground
breaking activity, including
but not limited
to blading, scraping, contouring, excavating, trenching, drilling, digging,
burying, paving, covering, or compacting soil surfaces, whether or not
previously disturbed, and whether or not the person engaged in those activities
is authorized to occupy or use state trust lands.
O. “Tribe” means any tribe, nation, or pueblo that may or may not
be federally recognized but has indicated cultural affinity to New Mexico areas
as documented in the tribal consultation list maintained by the historic
preservation division of the New Mexico department of cultural affairs.
P. “Trust” means
the trust established by the Enabling Act (Act of June 20, 1910, 36 Statutes at
Large 557, Chapter 310) and that trust’s assets, which are administered through
the state land office by the commissioner.
[19.2.24.7 NMAC - N, 12/01/2022]
19.2.24.8 GENERAL REQUIREMENTS:
A. Avoidance of damage.
Any persons engaged
in activities on state trust lands are subject to the requirements of the
Cultural Properties Act, the Cultural Properties Protection Act, and 19.2.24.13
NMAC. Persons shall not disturb,
dislodge, damage, destroy, or remove any cultural properties on state trust
lands. Any project on state trust lands
that has the potential to directly or indirectly damage cultural properties is
additionally subject to the requirements of Subsections B, C, D, and E of 19.2.24.8
NMAC.
B. Signed acknowledgment.
Parties shall
acknowledge, on a form prescribed by the commissioner, that they understand and agree to comply with applicable laws and rules pertaining
to the protection of cultural properties on state trust lands.
C. ARMS inspection and survey. Prior
to conducting surface disturbing activities, parties shall cause a permitted
archaeologist to submit to the state land office an ARMS inspection of the
entire area of potential effect. More
detailed guidance regarding the submission process for ARMS inspection and
surveys under this subpart will be provided in an instructional document to be
published on the state land office’s website and also will be provided to any
party or other interested person upon request.
The time when that submission is required is provided in Subsection E of
this section. In the best interest of
the trust, the commissioner, in the commissioner’s discretion, may elect to
provide the ARMS inspection for any particular portion of state trust land. The following subparagraphs describe the
necessary steps to be taken after an ARMS inspection is conducted.
(1) If the ARMS inspection demonstrates
that the entire area of potential effect has been surveyed, and that no
cultural properties are located within the area of potential effect, then the party
shall cause a permitted archaeologist to submit the ARMS inspection to the
state land office, in which case the required archaeological review is complete.
(2) If the ARMS inspection or survey demonstrates that the entire area of potential effect has been surveyed, and cultural properties are identified within the area of potential effect, the party shall cause a permitted archaeologist to submit the most recent applicable survey(s) to the state land office. If a prior survey is submitted that is more than ten years old, the state land office will determine if the survey conforms to the requirements of 4.10.15 NMAC and if it does not, may require an updated survey. The party shall be subject to the requirements of Subsection D of this section.
(3) If the ARMS inspection demonstrates
that the entire area of potential effect has not been surveyed, a complete
archaeological survey must be conducted by a permitted archaeologist in
accordance with the requirements of 4.10.15 NMAC and submitted to the state
land office. The new survey need not
include areas already subjected to acceptable surveys. The party shall be
subject to the requirements of Subsection D of this section, if cultural
properties are identified in the survey.
D. Compliance measures.
For any application
or project where any survey has identified cultural properties within the area
of potential effect, the party shall cause a permitted archaeologist to develop
and submit to the state land office compliance measures related to project
siting, and avoidance and mitigation of damage to cultural properties; those
compliance measures may be included within the survey that is submitted to the
state land office on behalf of any party, or may be submitted separately. The state land office will review any
applicable compliance measures, and determine if those measures are sufficient
to protect or mitigate damages to the affected cultural properties, a review
that may include consultation with the SHPO and shall include consultation with
any impacted tribe. In the best
interests of the trust, the state land office may require additional or
different compliance measures as a condition to approval of the application or
project. This review process will be
completed within 60 calendar days of submission of an administratively complete
submission (ARMS inspection or survey, and any applicable compliance measures),
but that time period may be extended in the commissioner’s discretion for up to
an additional 60 calendar days as may be necessary to ensure appropriate
review. Upon commissioner approval, the
relevant leasing division shall include appropriate compliance measures in the
relevant lease, easement, or other instrument, if applicable, consistent with
applicable statutes and rules.
E. Timing of requirements.
The undertakings
required in Subsections A, B, and C of 19.2.24.8 NMAC are required at different
points in time depending on the nature of the application or project, as follows:
(1) Leases, easements, or other instruments
not requiring subsequent approval. For applications or projects where no review
or approval is required after issuance of the applicable lease, easement, or
other instrument: the acknowledgment
specified in Subsection B of 19.2.24.8 NMAC, an ARMS inspection and survey
specified in Subsection C of 19.2.24.8 NMAC, and any applicable compliance
measures specified in Subsection D of 19.2.24.8 NMAC, are required at the time
of submission of the application for the lease, easement, or other instrument, and
in any event prior to commencement of surface-disturbing activities.
(2) Leases, easements, or other
instruments requiring subsequent approval.
For applications or
projects where subsequent review by the commissioner is required after a lease,
easement, or other instrument may be issued, and before project activities may
take place: the acknowledgment specified
in Subsection B of 19.2.24.8 NMAC is required at the time of submission of
application or bid. The ARMS inspection or
survey specified in Subsection C of 19.2.24.8 NMAC, and any applicable
compliance measures specified in Subsection D of 19.2.24.8 NMAC, are required
at the time of submission of the project plans or, if no project plans are
required to be submitted, at least 60 calendar days prior to commencement of
surface disturbing activities.
(3) Oil and gas leases. This subpart applies to oil and gas leases. The acknowledgment specified in Subsection B
of 19.2.24.8 NMAC is required prior to issuance of a lease or any lease assignment. For all surface disturbing activities
(whether under a new or existing lease or lease assignment), the description
and location of the project, the ARMS inspection or survey specified in Subsection
C of 19.2.24.8 NMAC, and any applicable compliance measures specified in Subsection
D of 19.2.24.8 NMAC, must be received, reviewed, and approved by the state land
office prior to any surface disturbing activity, along with the acknowledgment
specified in Subsection B of 19.2.24.8 NMAC if one has not already been
submitted by the party undertaking the surface disturbing activity for that
particular lease. Upon authorization
from the state land office, the party may commence the surface disturbing activity.
(4) Mining
leases. This subpart applies to
leases for mining as specified in Chapter 19, Articles 8-9 NMSA 1978, and
19.2.2, 19.2.3, 19.2.4, 19.2.5, 19.2.6, and 19.2.7 NMAC. The acknowledgment specified in Subsection B
of 19.2.24.8 NMAC is required at the time of submission of an application or
bid to lease. The ARMS inspection or
survey specified in Subsection C of 19.2.24.8 NMAC and any applicable
compliance measures specified in Subsection D of 19.2.24.8 NMAC, are required
at the time of submission of an application for a mining permit with the mining
and minerals division of the New Mexico energy, minerals, and natural resources
department, or equivalent permitting agency, for leases that are subject to
19.2.2 and 19.2.6 NMAC; and prior to commencement of any surface disturbing
activity for all other types of mineral leases.
F. Archaeological survey permits and notifications to survey. Individuals with valid archaeological survey permits issued by the New
Mexico cultural properties review committee, as provided in 4.10.8 NMAC, are
preapproved to access state trust lands for the sole purpose of conducting
archaeological surveys pursuant to this rule, without the need for a separate
authorization from the commissioner. For
other project purposes (that is, other than archaeological surveys), parties
who are already authorized to access and occupy particular state trust lands by
virtue of a lease or easement are not required to obtain separate authorization
from the commissioner. All other persons
needing access to state trust lands for other project purposes (that is, other
than archaeological surveys) shall apply for a right of entry permit on a form
prescribed by the commissioner, and the state land office will process such
application on a timely basis. The state
land office should be notified at least 15 calendar days before an
archaeological survey is conducted, except for exigent situations, including
but not limited to responses to spills or hazardous conditions, in which case
the state land office should be notified as soon as possible and in any event
prior to the survey.
[19.2.24.8 NMAC - N, 12/01/2022]
A. renewals or reissues, assignments, conversions, and subleases of existing grants, leases or permits, and agricultural improvement replacements, where no new surface disturbance will occur, or when the area of potential effect of a new project activity is entirely within a previously disturbed area of the same nature and extent of disturbance;
B. applications for new agricultural leases in open acreage or through competitive bid; and
C. applications for non-surface disturbing rights of entry, with the final decision vested with the commissioner about whether or not the relevant activity is surface disturbing.
[19.2.24.9 NMAC - N, 12/01/2022]
A. The following activities are exempt from the acknowledgment, ARMS inspection and survey, and compliance measures requirements of
this rule. These exemptions do not provide authorization
to enter or occupy state trust lands, which must be granted by the commissioner
under a valid lease, easement, permit, or other instrument:
(1) law enforcement, emergency
response, or natural disaster response (“emergency response”) activities,
whether or not undertaken by or in coordination with the state land office,
that are necessary to protect immediate threats to public health, safety, or
the environment, including but not limited to firefighting, flood management, or
for controlling, containing, or capturing releases of hazardous or harmful
materials. If the state land office is
not already involved in undertaking or coordinating the emergency response, it shall
be notified of the response as soon as practicable. Any known cultural property within the area
of emergency response should be monitored to the extent practicable so that any
adverse effects to the cultural property can be avoided, mitigated, or
minimized;
(2) administrative actions performed
by the state land office, such as executive orders or rule making activities, and
any internal agency processes or decisions that do not create new surface
disturbance;
(3) memoranda of understanding or
agreements to cooperate executed by the commissioner;
(4) easements, leases, or other
instruments granted by the commissioner to any person that do not directly
expand current surface uses or create new surface disturbance;
(5) recreational access permits and
educational access permits, applications for such permits, non-surface
disturbing natural resource authorizations, or activities that already require
the presence of an archaeological monitor such as special use agreements;
(6) projects analyzed under the National
Environmental Policy Act of 1969, 42 U.S.C. Section 4321 et seq. and the
National Historic Preservation Act of 1966, 16 U.S.C. Section 470 et seq., and
their implementing regulations, so long as such analysis includes impacted
state trust lands. For such projects, the party shall submit a copy to the
state land office of the survey or portions thereof pertaining to impacted
state trust lands;
(7) acquisition or disposition of lands
through exchange or sale; and
(8) plugging, restoration, remediation,
or reclamation activities that do not involve new surface disturbing activity
outside the authorized boundaries of any existing roads, rights of way, well
pads, associated oil and gas facilities or other structures.
B. Parties or other persons engaged in
the activities exempted in Subsection
A of 19.2.24.10 NMAC remain subject to the
requirements of the Cultural Properties Act, the Cultural Properties Protection Act, and 19.2.24.13 NMAC.
C. Notwithstanding any other
provision of this part, the commissioner may require an ARMS inspection or survey
for any project when determined to be in the best interest of the trust.
[19.2.24.10 NMAC - N, 12/01/2022]
19.2.24.11 CONFIDENTIALITY: Consistent with the Cultural Properties Act, Section 18-6-11.1 NMSA
1978 and Section 19-1-2.1 NMSA 1978, any information in the custody of the
state land office concerning the location of cultural properties, the
preservation of which is in the interest of the state of New Mexico, shall remain
confidential and not subject to inspection under the New Mexico Inspection of
Public Records Act, Section 14-2-1 to Section 14-2-12
NMSA 1978 unless the commissioner determines that the dissemination of such information will further the purposes of the Cultural Properties Act and
will not create a risk of loss of cultural properties. [19.2.24.11 NMAC - N, 12/01/2022]
A. In the event any party becomes
aware of actual or threatened damage to cultural properties on state trust
lands where that party is conducting project activities or has filed an
application to conduct project activities, the party shall immediately notify the
state land office, which will then notify the SHPO, and the party shall
immediately suspend all project activities in the immediate area of the damage
or the threatened cultural property, in consultation with the state land
office. Project activities shall remain
suspended until the state land office, in consultation with the SHPO and any
impacted tribe, approves resumption of those activities, and such approval may
be conditioned on the party’s adoption of compliance measures relating to
project siting, avoidance, or mitigation of impacts to the cultural properties
at issue. If human remains are
uncovered, project activities within 50 feet shall stop immediately and the
party shall notify the local law enforcement agency with jurisdiction, the
state land office and the SHPO pursuant to the Cultural Properties Act, Subsection
C of Section 18-6-11.2 NMSA 1978. Subsequent
response by local law enforcement is governed by 4.10.11 NMAC.
B. In the event a party conducts
project activities without first performing a survey or does not comply with
any applicable avoidance and mitigation measures established by the survey or
contained within the relevant lease, permit, or other instrument, and cultural
property is damaged in the process, the party will be required to conduct an
archaeological damage assessment at the party’s own expense and will be liable
for damages as determined by the archaeological damage assessment in the amount
equal to the cost of restoration, stabilization, and interpretation of the damaged
cultural property. If the party failed
to conduct an archaeological survey as required by this rule prior to
conducting surface disturbing activity, that party shall undertake such survey
after the fact. In addition, the
commissioner may recover an amount equal to twice the cost of restoration,
stabilization, and interpretation of the damaged cultural property, in
accordance with the Cultural Properties Act, Section 18-6-9.2 NMSA 1978.
C. All parties that are subject to
any provision of 19.2.24.8 and 19.2.24.9 NMAC
shall promptly provide
to the state land office
all records relating
to compliance with this part upon request.
D. As provided by the Cultural
Properties Act, Section 18-6-9.2 NMSA 1978 the commissioner may initiate a
civil action against any person violating the Cultural Properties Act on or
with respect to state trust lands. This
remedy is not exclusive and does not limit the rights or remedies that are
otherwise available to the commissioner and the state land office under
applicable law, including action against a lease, easement, or other instrument
issued by the commissioner.
E. The commissioner may refer a
criminal violation of the Cultural Properties Act, Sections 18-6-9, 18-6-9.1,
and 18-6-9.3 NMSA 1978 to the New Mexico attorney general or to the district
attorney in whose district the violation took place.
F. The state land office may
undertake monitoring and staff training to protect against damage to cultural properties.
G. The
commissioner will develop instructional materials and forms necessary for the
implementation of this rule.
[19.2.24.12 NMAC - N, 12/01/2022]