1

IN THE SUPREME COURT OF THE STATE OF NEW MEXICO

Opinion Number: 2011-NMSC-004

Filing Date: January 24, 2011

Docket No. 32,197

STATE OF NEW MEXICO ex rel. GARY K. KING,

Attorney General of the State of New Mexico,

Petitioner,

v.

PATRICK H. LYONS, Commissioner of Public Lands,

Respondent.

ORIGINAL PROCEEDING 

Gary K. King, Attorney General

Seth T. Cohen, Assistant Attorney General

Santa Fe, NM

for Petitioner

Robert Allen Stranahan, IV

Santa Fe, NM 

Peifer, Hanson & Mullins, P.A.

Charles R. Peifer

Lauren Keefe

Albuquerque, NM

for Respondent

Montoya Law, Inc.

Dennis William Montoya

Albuquerque, NM

for Amicus Curiae

League of United Latin American Citizens
2

Modrall, Sperling, Roehl, Harris & Sisk, P.A.

Patrick J. Rogers

Nathan T. Nieman

Albuquerque, NM

for Amici Curiae

Easter Seals El Mirador and Union Pacific Railroad Company

Alvin Rey Garcia

Albuquerque, NM

Michael A. Saul

Boulder, CO 

for Amici Curiae

New Mexico Wildlife Federation and National Wildlife Federation

Rodey, Dickason, Sloan, Akin & Robb, P.A.

Edward Ricco

Jocelyn C. Drennan

Albuquerque, NM

K. Lee Peifer

Albuquerque, NM

for Amicus Curiae

University of New Mexico 

Cuddy & McCarthy, LLP

John F. Kennedy

Santa Fe, NM

for Amicus Curiae

New Mexico School for the Blind and Visually Impaired 

OPINION

BOSSON, Justice.

{1} The Attorney General of New Mexico petitions this Court, for a Writ of Mandamus,

requiring the New Mexico Commissioner of Public Lands (Land Commissioner) to comply

with the New Mexico Enabling Act and the New Mexico Constitution, and thus to cancel

or discontinue four separate land exchanges of considerable size and complexity. These

exchanges would transfer or have transferred state trust land in the White Peak area of Mora
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and Colfax counties and elsewhere to private ownership in return for certain private land

situated in the same area and elsewhere. According to the Land Commissioner, these

exchanges will reduce “checkerboard” ownership of state trust land and consolidate state

land into larger, contiguous parcels, thereby improving land management and reducing

boundary and access issues that have arisen in that area. See, e.g., State ex rel. King v. UU

Bar Ranch Ltd. P’ship, 2009-NMSC-010, ¶¶ 17-18, 63, 145 N.M. 769, 205 P.3d 816.

{2} This Opinion does not pass judgment on either the wisdom or the efficacy of the

Land Commissioner’s proposed exchanges. Instead, we are asked only to determine whether

those exchanges are lawful. Specifically, we inquire whether these exchanges are legally

authorized under New Mexico’s Enabling Act, a 1910 act of Congress that, among other

things, identified public lands for transfer to the state and imposed certain conditions. In our

state constitution, the people of New Mexico expressly consented to the provisions of the

Enabling Act. See N.M. Const. art. XXI, § 9. We conclude that the exchanges are not

authorized because they violate the requirements of the Enabling Act, and therefore we issue

our Writ of Mandamus in the manner requested by the Attorney General, directing the Land

Commissioner to cancel these exchanges. We also give certain additional directives as

indicated in this Opinion.

BACKGROUND

I. New Mexico Enabling Act and History of State Trust Land Exchanges

{3} The 1910 Enabling Act provided for New Mexico’s admission as a state into the

federal union and set forth certain basic conditions for statehood. Act of June 20, 1910, ch.

310, §§ 1-18, 36 Stat. 557 (Enabling Act); N.M. Const. art. XXI, § 9 (adopting the

provisions of the Enabling Act). The Act was adopted during New Mexico’s constitutional

convention, making it “fundamental law to the same extent as if it had been directly

incorporated into the Constitution.” Lake Arthur Drainage Dist. v. Field, 27 N.M. 183, 190,

199 P. 112, 115 (1921).

{4} The Enabling Act required that the people of New Mexico incorporate its mandates

into the state constitution, and it specified that those mandates could not be modified without

the consent of Congress and a ratifying vote of our citizens. See Enabling Act § 2; see also

N.M. Const. art. XXI, §§ 1-11 (incorporating all Enabling Act measures into the New

Mexico Constitution and making the Act irrevocable without the consent of the United States

and the people of this State); N.M. Const. art. XIX, § 4 (providing for citizen voting on

constitutional amendments); Bryant v. Bd. of Loan Comm'rs, 28 N.M. 319, 329, 211 P. 597,

601 (1922) (“Congress contemplated that any change . . . to the use of the proceeds of the

lands granted to the state should be effectuated by amendment to the Constitution, and the

Constitution . . . provides that the ordinance accepting these grants of land is to be

irrevocable without the consent of the United States and the people of the state, and . . . any

change in the use and application of the proceeds of these land grants may . . . be done by

way of a constitutional amendment.”).
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{5} Section 10 of the Enabling Act governs state trust land management. The Act

granted over thirteen million acres of federal land to the State of New Mexico, to be held in

trust for the benefit of various public schools and other institutions. See Enabling Act §§ 6-

7, 10; 1990 WL 110523 (Cong. Rec.), 136 Cong. Rec. 21,234 (1990) (statement of Sen. Pete

Domenici); United States v. Ervien, 246 F. 277, 277 (8th Cir. 1917). Our state constitution

created the office of Commissioner of Public Lands, vesting it with the “direction, control,

care and disposition of all public lands, under the provisions of the acts of congress relating

thereto and such regulations as may be provided by law.” N.M. Const. art. XIII, § 2. This

Court has long acknowledged that the Land Commissioner’s broad authority to manage state

trust lands is subject to the terms of the Enabling Act. See, e.g., Burguete v. Del Curto, 49

N.M. 292, 295-96, 163 P.2d 257, 259 (1945) (per curiam) (“It’s well settled in New Mexico

that under the Enabling Act, our Constitution and the statutes based thereupon, the

Commissioner of Public Lands has complete dominion, which is to say complete control,

over state lands. This ‘dominion’ is, of course, subject to the restrictions imposed by the

Enabling Act, the Constitution, and the statutes, and the manner of its exercise is subject to

review by the courts.” (citations omitted)).

{6} Section 10 of the Enabling Act defines the Land Commissioner’s power to sell or

lease state trust land, but also limits those powers. Sale proceeds are deposited in the Land

Grant Permanent Fund and invested by the State Investment Officer for the benefit of

enumerated public institutions. See N.M. Const. art. XII, §§ 2, 7; NMSA 1978, §§ 6-8-1 to

-22 (1957) (amended 2010); NMSA 1978, § 19-1-17 (1957) (amended 2010); State v.

Llewellyn, 23 N.M. 43, 70, 167 P. 414, 423 (1917). Proceeds from leases are distributed

directly to the beneficiary institutions. NMSA 1978, §§ 19-1-11, -13 (1989).

{7} Section 10's conditions include the proviso that state trust lands “shall be by the said

state held in trust, to be disposed of in whole or in part only in manner as herein provided.”

(Emphasis added.) When adopted, the only means of disposal provided in the Enabling Act

were sale and lease, under certain conditions. The Act provided that land “shall not be sold

or leased, in whole or in part, except to the highest and best bidder at a public auction” with

detailed advance notice to the public. Section 10 further provides that “[a]ll lands . . . before

being offered shall be appraised at their true value, and no sale or other disposal thereof shall

be made for a consideration less than the value so ascertained, nor in any case less than the

minimum price hereinafter fixed . . . .” These conditions, crucial to our later discussion in

this Opinion, can be summarized as follows: first, disposals of land are limited to the

disposals described in the Enabling Act; second, land can only be sold or leased at a public

auction to the highest and best bidder; and third, all sales and leases must yield at least the

appraised value of the land. As will be discussed more fully in this Opinion, the Enabling

Act imposed its conditions and restrictions upon the Land Commissioner’s authority to

dispose of public lands so as to prevent the kind of corruption and exploitation of the public

trust for private advantage that had been widely exposed over the latter part of the 19th

Century.

{8} Over time, several attempts have been made to loosen the Enabling Act’s constraints
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The United Nuclear exchange in 1984 is the only private exchange documented in

the “SLO Exchanges by Administration/Action,” submitted by the Land Commissioner.

That list, however, appears to only document land exchanges consummated before 1987.

Attached press releases describe six land exchanges occurring between 2005 and 2009. One

of those press releases suggests another private “transfer,” an exchange with Easter Seals

Santa Maria El Mirador on August 25, 2009.

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on land disposals by amending the Act to provide the Land Commissioner with authority to

exchange state land, for land held by others without the constraints of the conditions

described above. Only once have both Congress and the people of New Mexico voted to

provide the Land Commissioner with exchange authority. In 1926, Congress approved an

amendment to allow the Land Commissioner and the U.S. Secretary of the Interior to

exchange state trust land for national forest land. Act of June 15, 1926, ch. 590, § 1, 44 Stat.

746. New Mexico voters twice rejected the amendment before they approved it in 1932. See

N.M. Const. art. XXI, § 11. Voters rejected another proposed amendment in 1935, which

would have given the Land Commissioner broader authority to exchange land with the

federal government.

{9} Significant to our inquiry today, in 1990 New Mexico voters overwhelmingly

rejected a proposed amendment of the Enabling Act which would have provided the Land

Commissioner with the very authority he seeks to exercise today. The proposed—and

defeated—constitutional amendment would have authorized the Land Commissioner to

exchange state trust land for land held by private persons or entities, among others. It was

defeated by a vote of 57.7 percent against and only 42.3 percent in favor. As will be

discussed later in this Opinion, we regard this popular vote as significant. The amendment

would not have been necessary had the Enabling Act authorized exchanges all along. To the

contrary, its rejection signifies that a significant majority of our electorate understood at least

two things: 1) the Enabling Act did not authorize Land Commissioner exchanges, and 2) the

Land Commissioner should not be empowered to conduct such exchanges.

{10} Despite a history of uncertainty surrounding the authority to exchange state trust

land, the Land Commissioner has for decades engaged in land exchanges with a variety of

state and local public entities involving hundreds of thousands of acres of state trust land.

Land Commissioner documents submitted to this Court indicate only two exchanges have

been conducted with private entities: a 1984 exchange of 314 acres of state trust land for

200 acres from United Nuclear Corporation and a 2009 exchange of 28 acres of state trust

land for 53 acres of land from Easter Seals Santa Maria El Mirador.1

 The Attorney General

has not challenged any exchanges prior to the four challenged exchanges in the present

litigation, and as will be explained, this Opinion does not affect any prior exchanges.

II. The Four Challenged Exchanges

{11} In this case, the Attorney General seeks to cancel or prohibit four separate land
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NMSA 1978, Section 19-1-1 (1912), established the State Land Office, with the

Commissioner of Public Lands as its executive officer.

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exchanges, each with a private party: the “Stanley Ranch exchange,” the “UU Bar

exchange,” the “CS Ranch Bar exchange,” and the “Galloway exchange.” Each exchange

involves state trust lands situated in the White Peak area of Mora or Colfax counties.

Combined, the exchanges would transfer 14,600 acres of state trust land, at an appraised

value of $22,500,000, for approximately 9,560 acres of private land at an appraised value

of $23,200,000.

{12} Only the Stanley Ranch exchange has been fully consummated with title passing

from the state to the Stanley Ranch. The state has deeded fourteen parcels of land ranging

in size from 40 to 1,727 acres, with a total of 7,205.75 acres, valued at $6,356,000. In

exchange, the state has received from the Stanley Ranch multiple parcels of land, totaling

3,336.221 acres appraised at $6,413,000. The Stanley Ranch began the exchange process

by submitting an “Initial Application” to the State Land Office2

 on October 11, 2007. The

application specified parcels of state trust land that the Stanley Ranch sought to acquire

through an exchange.

{13} The State Land Office agreed to proceed with the transaction on June 5, 2008, eight

months after the initial application, on the condition that certain lands be added to and

removed from the proposed exchange. Accordingly, Stanley Ranch completed an amended

application on August 5, 2008, and submitted it to the State Land Office. On September 8,

2009, almost two years after the initial application, the State Land Office issued a “Notice

of Public Auction for Exchange of Land by Sealed Bid” detailing the land sought by the

Stanley Ranch. The notice was published for ten weeks, from September 18 through

November 19, 2009. Stanley Ranch submitted the only bid on November 19, 2009, more

than two years after its initial application, which was accepted on November 30, 2009. On

January 7, 2010, the State Land Office executed an “Exchange Patent,” conveying the

specified state trust lands to the Stanley Ranch. The State received the specified lands from

the Stanley Ranch, and the transaction was closed.

{14} The UU Bar Ranch exchange, not yet completed, involves three parcels of state trust

land located in Mora and Colfax counties, ranging in size from 120 to 1,721 acres, totaling

3,431.34 acres and valued at $2,381,000. The Land Commissioner has agreed to transfer this

land in exchange for 3,610.19 acres of the UU Bar Ranch property, also in Mora and Colfax

counties, valued at $2,383,000. The UU Bar Ranch initiated the exchange on March 5, 2008,

submitting an “Initial Application” for land exchange to the State Land Office. Over six

months later, on October 1, 2008, the State Land Office informed the UU Bar Ranch that it

“would proceed with the land exchange process” and requested further information from the

UU Bar Ranch.

{15} On September 15, 2009, the Land Commissioner issued a “Notice of Public Auction
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for Exchange of Land by Sealed Bid,” offering for auction the 3,431.34 acres of state trust

land already agreed upon for exchange with the UU Bar Ranch. Notice was published for

ten weeks, starting October 1, 2009. The UU Bar Ranch submitted the only bid on

December 8, 2009, over a year and a half after its initial application, and was notified of its

acceptance on December 17, 2009. For the moment, the State Land Office retains title to

these state trust lands. 

{16} The CS Ranch and Galloway exchanges have been in negotiation with the State Land

Office, but have not yet proceeded to public notice. CS Ranch initiated its proposed

exchange by submitting an “Initial Application” on April 9, 2008. The State Land Office

responded on July 8, 2008, calling for further investigation into the exchange proposal and

reporting that it had advised staff to “proceed with the exchange process.” Until the Petition

was filed in this case, appraisals and appraisal reviews of the targeted state trust lands were

under way, and the State Land Office and CS Ranch were negotiating the details of the

exchange.

{17} Under the most recent terms of the exchange, the Land Commissioner contemplates

conveying approximately 166 acres of state trust land in Colfax County valued at $734,000;

3,630 acres in Santa Fe County valued at $9,935,000; and 40 acres in Bernalillo County

valued at $2,250,000. In return, CS Ranch is offering 2,600 acres of its land in Colfax

County valued at $13,480,000. The proposed exchange has been described by the State

Land Office as part of the “White’s Peak Consolidation Strategy” and “the second of four

(4) proposed exchanges,” focusing on consolidation and access. When the Attorney

General’s petition was filed on February 1, 2010, almost twenty-two months had passed

since the initial CS Ranch application was filed with the State Land Office.

{18} Finally, the Galloway exchange is the fourth, and smallest, of the four exchanges.

It would transfer 160 acres of state trust lands in Colfax County valued at $840,000, in

exchange for approximately 110 acres of Galloway land in Colfax County valued at

$951,500. On July 10, 2008, William Galloway submitted an “Initial Application” for

exchange of public lands. Two months prior to his “Initial Application,” Galloway proposed

an exchange with the Land Commissioner, declaring his interest in “establish[ing] a

dialog/consideration process for swapping certain deeded land,” and promoting the exchange

as a way to improve land management and public access.

{19} On August 28, 2008, the State Land Office sent Galloway a letter indicating that

“further investigation of the suggested exchange [was] warranted” and that the Land

Commissioner had “advised staff to proceed with the exchange process.” On June 18, 2009,

Galloway submitted an “UPDATED Initial Application,” indicating that the state trust lands

he desired were the “CS Ranch 160 acre tract . . . (part of the global swap occurring).”

Galloway further explained that his interest in the land exchange was “[p]art of the global

swap happening with many local owners and state of NM.” The Galloway exchange had not

yet been advertised when, more than eighteen months after Galloway’s “Initial Application,”

the Attorney General filed a petition requesting that this Court stay the exchange.
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{20} On February 1, 2010, the Attorney General filed a Petition for Writ of Mandamus

challenging the Land Commissioner’s authority to conduct the four exchanges described

above. The next day, we granted the Attorney General’s request to stay all transactions

pending a resolution of the dispute.

DISCUSSION

I. Mandamus Jurisdiction Is Proper

{21} This Court will exercise its original jurisdiction in mandamus 

when the petitioner presents a purely legal issue concerning the nondiscretionary duty of a government official that (1) implicates fundamental

constitutional questions of great public importance, (2) can be answered on

the basis of virtually undisputed facts, and (3) calls for an expeditious

resolution that cannot be obtained through other channels such as a direct

appeal.

State ex rel. Sandel v. N.M. Pub. Util. Comm’n, 1999-NMSC-019, ¶ 11, 127 N.M. 272, 980

P.2d 55; see also N.M. Const. art. VI, § 3 (“The supreme court shall have original

jurisdiction in quo warranto and mandamus against all state officers, boards and

commissions . . . .”); NMSA 1978, § 44-2-5 (1884) (“The writ shall not issue in any case

where there is a plain, speedy and adequate remedy in the ordinary course of law.”).

{22} The Attorney General’s petition raises questions implicating the Land

Commissioner’s constitutional ability to engage in land exchanges. As noted, the scope of

the Land Commissioner’s authority has been the subject of the Enabling Act, congressional

acts, the New Mexico Constitution, state legislative initiatives, state and federal judicial

opinions, and proposed constitutional amendments. The meaning of the law that created the

Land Commissioner’s post and established his charge, and the outcome in this case, could

have far reaching implications for millions of acres of state trust land and the trust

beneficiary institutions. At issue, therefore, are fundamental constitutional questions of the

greatest public importance.

{23} This case also demands an expeditious resolution that can only come through our

exercise of mandamus. The largest of the land exchanges has already been consummated,

another is nearly complete, and the remaining two are in advanced stages of negotiation.

Until this dispute is resolved, the legal status of thousands of acres of land, along with the

property rights of the private parties involved, hang in the balance. Although the district

court has concurrent jurisdiction in mandamus cases, “when issues of sufficient public

importance are presented which involve a legal and not a factual determination, we will not

hesitate to accept the responsibility of rendering a just and speedy disposition.” State ex rel.

Bird v. Apodaca, 91 N.M. 279, 282, 573 P.2d 213, 216 (1977); see also State ex rel. Taylor

v. Johnson, 1998-NMSC-015, ¶ 17, 125 N.M. 343, 961 P.2d 768 (finding that a significant
9

and purely legal question of government-actor powers under the New Mexico Constitution

would find its way to this Court, even if the action began in the district court).

{24} The Land Commissioner contends that alternative channels exist to challenge the

exchanges, making mandamus improper. Specifically, he suggests either an administrative

contest, declaratory or injunctive relief, or a challenge to the Land Commissioner’s

regulations under the Administrative Procedures Act. These alternatives are all inadequate.

{25} An administrative contest is permitted by “any persons or corporation claiming any

right, title, interest or priority of claim, in or to any state lands, covered by any lease,

contract, grant or any other instrument executed by the commissioner.” NMSA 1978, § 19-

7-64 (1912); see also 19.2.15.1 to .18 NMAC (6/30/2004). It also allows “[a] person

aggrieved by a decision of the commissioner” to challenge any final agency action in district

court. NMSA 1978, § 19-7-67 (1999). Yet the Attorney General is not personally aggrieved

by the Land Commissioner’s decisions, nor does he have any “right, title, interest, or priority

of claim, in or to any state lands, covered by any lease, contract, grant or any other

instrument executed by the commissioner.” Section 19-7-64. Rather, the Attorney General

is acting on behalf of state interests—state trust land and the beneficiaries of the trust—as

the office requires. See NMSA 1978, § 8-5-2(A) (1975) (“[T]he attorney general shall . . .

prosecute and defend all causes in the supreme court and court of appeals in which the state

is a party or interested.”); State ex rel. Burg v. City of Albuquerque, 31 N.M. 576, 584-85,

249 P. 242, 246 (1926).

{26} Declaratory judgment, although theoretically an option, does not constitute an

adequate remedy at law that would preclude mandamus relief. See City of Albuquerque v.

Ryon, 106 N.M. 600, 602-03, 747 P.2d 248-49 (1987) (providing that declaratory judgment

actions are not intended to substitute for remedies such as mandamus). Finally, the

Administrative Procedures Act is not a vehicle for challenge in this case because that act

only applies “to agencies made subject to its coverage by law, or by agency rule or

regulation if permitted by law.” NMSA 1978, § 12-8-23 (1969). No laws or agency rules

have been adopted making that act applicable to the State Land Office or the Land

Commissioner.

{27} The last issue regarding our exercise of mandamus jurisdiction turns on whether the

Attorney General’s petition presents a purely legal question concerning a ministerial duty

of the Land Commissioner. See NMSA 1978, § 44-2-4 (1884) (“[Mandamus] may be issued

. . . to compel the performance of an act which the law specially enjoins as a duty resulting

from an office, trust or station.”). “A ministerial act . . . is an act or thing which [a public

officer] is required to perform by direction of law upon a given state of facts being shown

to exist, regardless of his own opinion as to the propriety or impropriety of doing the act in

the particular case.” State ex rel. Four Corners Exploration Co. v. Walker, 60 N.M. 459,

463, 292 P.2d 329, 332 (1956).

{28} We recognize that the Land Commissioner has broad discretion to manage state trust
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lands, and mandamus cannot be used to compel an executive officer acting within his

discretion. See Bird, 91 N.M. at 282, 573 P.2d at 216 (citing Mitchell v. King, 537 F.2d 385

(10th Cir. 1976)); see also N.M. Const. art. 5, § 1 (creating the executive department and

including the “commissioner of public lands”). We have held, however, that mandamus is

appropriate to determine the outer bounds of that discretion. See, e.g., State ex rel. Shepard

v. Mechem, 56 N.M. 762, 767, 250 P.2d 897, 900 (1952); Sender v. Montoya, 73 N.M. 287,

292, 387 P.2d 860, 863 (1963) (holding that mandamus is proper when an officer is

performing ministerial duties, and explaining that “language . . ., to the effect that mandamus

is inappropriate where interpretation and judgment are necessary, must be considered in

context, not as an inflexible rule”), overruled on other grounds by State ex rel. Reynolds v.

Molybdenum Corp. of Am., 83 N.M. 690, 695, 496 P.2d 1086, 1091 (1972).

{29} We do not question the Land Commissioner’s motivation or judgment in engaging

in land exchanges. Rather, we address two specific legal questions regarding the Enabling

Act’s limitations on the Land Commissioner’s discretion. We address each of the legal

questions in turn. First, “Does the Enabling Act authorize the Land Commissioner to

exchange land with private parties, without application of Section 10's sales provisions?”

This is a purely legal question that we answer in the negative in Section II. We further

conclude that land exchanges for monetary (appraised) value are in-kind sales and are thus

subject to the Enabling Act’s sales provisions.

{30} Because we conclude that land exchanges for monetary (appraised) value are subject

to the Enabling Act’s sales provisions, we move on to a second purely legal question: “As

a matter of law, do the challenged exchanges comply with the required elements for a valid

sale of land, including the requirement of a public auction to the highest and best bidder?”

In Section III, we conclude that, as a matter of law, the exchanges do not comply with

Enabling Act’s Section 10 requirement that “lands shall not be sold or leased, in whole or

in part, except to the highest and best bidder at a public auction.” The Land Commissioner

is correct that he cannot be compelled to hold a public land offering. That decision is within

the Land Commissioner’s discretion. If he does decide to sell (or exchange) land, however,

the Land Commissioner has an enforceable, ministerial duty to comply with the sales

provisions of Section 10 of the Enabling Act. He has no discretion to do otherwise.

{31} It is a factual determination, which we need not reach, whether making land

exchanges is generally beneficial to the trust. It is also a factual determination whether the

exchanges at issue would benefit the trust. The Land Commissioner makes a cogent

argument supporting his conclusion that certain private land exchanges would improve the

management and value of state trust lands. We accept the Land Commissioner’s argument.

{32} This case hinges upon the meaning of the Enabling Act that created the trust and

provided for its administration. Neighbor-to-neighbor exchanges may well be in the best

interest of the trust, but if the Enabling Act does not provide the Land Commissioner with

authority to conduct exchanges, then they cannot be done. If they are permitted, they must

conform to conditions imposed by the Act. 
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II. The Enabling Act Does Not Permit Exchanges Unless They Are In-Kind Sales

{33} This section addresses the first legal question we posed above regarding the Enabling

Act’s limitations on the Land Commissioner’s discretion: “Does the Enabling Act authorize

the Land Commissioner to exchange land with private parties, without application of Section

10's sales provisions?” We conclude that the Enabling Act does not authorize those

exchanges. We also recognize, however, that exchanges for appraised monetary value, such

as the challenged exchanges, may be considered in-kind sales. Thus, assuming exchanges

for monetary value are in-kind sales, they are subject to the Enabling Act’s sales provisions,

including public auction to the highest and best bidder.

A. The Enabling Act’s Plain Language Limits Land Disposals

{34} Although Section 10 of the Enabling Act never used the word “exchange” until the

word was specifically added in an amendment to give the Land Commissioner exchange

power with the Secretary of the Interior, the Land Commissioner interprets the word

“dispos[e]” in Section 10 as a general, implicit grant of authority beyond sales or leases to

include exchanges. Under that interpretation, the authority to exchange would only be

conditioned upon an appraisal of the exchange lands and obtaining at least the appraised

value in exchange for the state lands; there would be no companion requirement of notice

and public auction to the highest and best bidder. The Land Commissioner reasons that an

exchange is a form of disposal, not expressly prohibited by the Enabling Act, and thus it falls

within his general “disposal” authority.

{35} We reject the Land Commissioner’s interpretation. We cannot accept the notion that

use of the word “dispose[d]” in Section 10 grants additional, residual authority to convey

trust land beyond a sale or lease. Significantly, Section 10 of the Enabling Act requires that

disposals occur “only in the manner provided herein,” thus limiting, rather than broadly

granting, the Land Commissioner’s power to dispose. The word “dispose” appears three

times in Section 10 of the Enabling Act:

[A]ll lands hereby granted . . . shall be . . . held in trust, to be disposed of in

whole or in part only in manner as herein provided and for the several

objects specified in the respective granting and confirmatory provisions . . .

. 

Disposition of any of said lands . . . for any object other than that for

which such particular lands, or the lands from which such money or thing of

value shall have been derived, were granted or confirmed, or in any manner

contrary to the provisions of this act, shall be deemed a breach of trust . . .

.

. . . .

All lands, leaseholds, timber and other products of land before being

offered shall be appraised at their true value, and no sale or other disposal

thereof shall be made for a consideration less than the value so ascertained
12

. . . .

(Emphasis added.) The first two uses explicitly negate an expansive interpretation. They

direct the reader to the Act’s limitations (lands are “to be disposed of . . . only in manner as

herein provided” and “[d]isposition . . . in any manner contrary . . . shall be deemed a breach

of trust”). Any infraction of the Act’s limited bounds is prohibited as a “breach of trust.”

{36} The third use of “disposal” specifies the “manner” in which disposals of land should

occur. It directs that land trust holdings shall be appraised and no sale or other disposal shall

be made for a consideration less than appraised value. The Land Commissioner is correct

to interpret this passage as requiring an appraisal before any transaction involving state trust

land, not only for sales but also for leases. Because leaseholds are also expressly

contemplated in Section 10, “sale or other disposal” is necessary language to include such

conveyances. The phrase “or other disposal,” does not create, however, a new universe of

possible disposals, such as swaps or exchanges, exempt from the conditions required for

sales and leases. We have repeatedly recognized that “[w]here authority is given to do a

particular thing and a mode of doing it is prescribed, it is limited to be done in that mode;

all other modes are excluded. This is a part of the so-called doctrine of expressio unius est

exclusio alterius.” Fernandez v. Espanola Pub. Sch. Dist., 2005-NMSC-026, ¶ 6, 138 N.M.

283, 119 P.3d 163 (internal quotation marks and citation omitted).

{37} The Enabling Act’s plain language is more than sufficient to establish the absence

of any implicit grant of land exchange power. Despite this, we put forth the congressional

history showing the factors that formed the Act’s restrictions and the election history that

demonstrates voter intent to refrain from amending the Act to allow for land transfers. These

histories further illustrate the intended limitations on the Land Commissioner’s disposal of

land.

B. Enabling Act Drafters Purposely Constrained Land Commissioner Authority

{38} To infer broad authority from the word “dispos[e]” would be to construe the Enabling

Act precisely in the manner that Congress and the leaders of the New Mexico Territory

sought to avoid. The Enabling Act was written to “preclude any license of construction or

liberties of inference.” Ervien v. United States, 251 U.S. 41, 47 (1919). Contrary to the

consistent “narrow interpretation” by the U.S. Supreme Court, see, e.g., United States v.

N.M., 535 F.2d 1324, 1327 (10th Cir. 1796), the Land Commissioner would have us construe

“dispos[e]” to afford additional, broad, and almost unrestrained authority to convey state

trust land, subject only to the single requirement that any such disposal obtain at least true

appraised value. The Land Commissioner’s view, however, would ignore the history that

influenced the Enabling Act’s restrictions on land disposal. See Robert W. Larson, New

Mexico’s Quest for Statehood 1846-1912 268 (1968) (“Lands granted [by the Enabling Act]

were placed in a trust to be disposed of by a specified procedure.”).

{39} As the Arizona Supreme Court has noted, “the Enabling Act for New Mexico and
13

Arizona marked a complete and absolute departure from the enabling acts under which other

states were admitted to the Union.” Murphy v. State, 181 P.2d 336, 344 (Ariz. 1947). More

specifically, the Enabling Act was a response to, and an attempt to preclude, the types of

abuses that had occurred in other states and in territorial New Mexico. Id. Unfettered local

control of trust lands had

left a scandal in virtually every state, and these granted lands and the monies

derived from a disposition thereof were so poorly administered, so unwisely

invested and dissipated, that Congress concluded to make sure, in light of

experiences of the past, that such would not occur in the new states of New

Mexico and Arizona.

Id. New Mexico’s own scandal involved land covered with valuable timber that had been

granted to the Territory of New Mexico through a federal act in 1898; territorial authorities

had violated the law in disposing of the timber. Id. at 345. The Enabling Act was drafted

in the wake of twelve pending U.S. Department of Justice lawsuits in the New Mexico

Territory against corporations or against the Territory in conjunction with a corporation. S.

Rep. No. 61-454, at 37 (2d Sess. 1910). In addition, it has been widely represented that

during the years following the Civil War and leading up to New Mexico’s statehood,

members of the so-called “Santa Fe Ring,” a group of land speculators, including prominent

politicians, lawyers, and other leading citizens of the territory, assumed huge land holdings

through corrupt practices, taking advantage of legal discrepancies and ignorance of the land

law on part of land grant holders. See generally David Correia, Appendix: Land Grant

Speculation in New Mexico During the Territorial Period, 48 Nat. Res. J. 927 (2008).

{40} The history surrounding the Enabling Act demonstrates an intent to prevent future

corruption by strictly limiting the ability of the Land Commissioner to dispose of trust lands.

See, e.g., Larson, supra, at 267 (explaining that the reasons for the “[h]arsh restrictions on

the handling of public lands,” included in the Senate version of the statehood bill and

eventually adopted in the Enabling Act, “may be traced back to the land fraud scandals”).

The Enabling Act’s land disposal conditions were designed to protect the Land

Commissioner from exposure to corrupt and coercive forces. Indeed, Senator Beveridge of

Indiana, Chairman of the Committee on the Territories, considered the restrictions on

disposal of the land to be “quite the most important item” in the legislation. Lassen v.

Arizona ex rel. Arizona Highway Dep’t, 385 U.S. 458, 468 (1967). The Senate Bill

stipulated that any conveyance of public trust land must be at a public auction, after adequate

public notice, to the highest bidder, at no less than appraised value. In addition,

“transactions upon credit” were prohibited unless “accompanied by security.” S. Rep. No.

61-454, at 18.

{41} Senator Beveridge had good reason for his opinion that the restrictions on land

disposals were the most important part of the Enabling Act legislation. Concerns about

disposal of New Mexico’s land were held at the highest level of government, by President

Roosevelt. See 2 Ralph Emerson Twitchell, The Leading Facts of New Mexican History 549
14

(Sunstone Press 2007) (1912). In 1906, when Herbert J. Hagerman was appointed governor

of the territory of New Mexico, “[i]t was generally believed that [Hagerman] had been

chosen for the express purpose of assisting in uncovering frauds in the sale and disposal of

lands . . . to corporations and special interests, to some of which the territorial officials and

their friends were parties . . . .” Id. at 549.

{42} In authoring and signing the Enabling Act, members of Congress sought to limit the

power of the Land Commissioner by requiring transparent and fair disposal of public land

for the public’s benefit. In addition to discussing the ongoing lawsuits in the Territory,

Senator Beveridge’s Committee on the Territories Report, accompanying the Senate bill,

highlighted testimony by two leaders representing the Territory of New Mexico. See id. at

20. At that time, L. Bradford Prince was a former New Mexico Territorial Governor, id., and

Charles A. Speiss was President of the New Mexico Constitutional Convention of 1910.

New Mexico Blue Book 2007-2008 48 (Mary Herrera, Secretary of State ed. 2008). Each

New Mexican leader responded to questions from the Committee Chairman:

The CHAIRMAN. . . . . I understand you to say in private

conversation that you highly approved, as you said every other man did who

thought of the subject, of the safeguards thrown about the disposition of

public lands granted in this bill.

Mr. PRINCE. We approve of the strictest safeguards that can possibly

be found in order to insure the perpetuity of that fund and its inviolability.

S. Rep. No. 61-454, at 20. This Court also considers the restrictions on land disposals

inviolate. The Report’s highlighted testimony continued:

The CHAIRMAN. At that point, let me ask you this question: In the bill

introduced in the Senate, known as the Senate bill, very careful restrictions

have been thrown around the disposition of this land. I understand you to say

to me in private conversation that you were entirely satisfied that the

restriction could not be made too strong.

Mr. SPIESS. Absolutely, Senator, and more than that. We would have

adopted those same restrictions by our constitutional convention—

Id.

The CHAIRMAN (interposing): So you have no objection to these

restrictions?

Mr. SPIESS: No sir.

Hearing Before the Committee on Territories, United States Senate, 61st Cong. 19 (1910)

(statements by Sen. Albert Beveridge, Chairman, S. Comm. on the Territories). Testimony

from Arizona representatives expressed similar support for the restrictions, asserting “the

restrictions on such public lands can not be made too broad.” S. Rep. No. 61-454, at 21. An
15

Arizona representative even testified that he desired measures that would prevent the public

trust lands from being disposed of “in large areas.” Id. at 20.

{43} While this Court will usually defer to an executive official’s discretion, the Enabling

Act’s conditions and limitations were purposefully designed to circumscribe discretion. See

United States v. New Mexico, 536 F.2d 1324, 1327 (10th Cir. 1976) (“In construing the

Enabling Act, the Supreme Court citing the restrictions placed on the use of the trust lands

has consistently applied a narrow interpretation to the terms of the Enabling Act.”). 

The central problem which confronted the [Enabling] Act's draftsmen was .

. . to devise constraints which would assure that the trust received in full fair

compensation for trust lands. The method of transfer and the transferee were

material only so far as necessary to assure that the trust sought and obtained

appropriate compensation. This is confirmed by the legislative history of the

Enabling Act. All the restrictions on the use and disposition of the trust lands,

including those on the powers of sale and lease, were first inserted by the

Senate Committee on the Territories. Senator Beveridge, the committee's

chairman, made clear on the floor of the Senate that the committee's

determination to require the restrictions sprang from its fear that the trust

would be exploited for private advantage. He emphasized that the committee

was influenced chiefly by the repeated violations of a similar grant made to

New Mexico in 1898. The violations had there allegedly consisted of private

sales at unreasonably low prices, and the committee evidently hoped to

prevent such depredations here by requiring public notice and sale. The

restrictions were thus intended to guarantee, by preventing particular abuses

through the prohibition of specific practices, that the trust received

appropriate compensation for trust lands.

Lassen, 385 U.S. at 463-64 (1967) (emphasis added) (footnotes omitted); see also State ex

rel. State Eng’r v. Comm’n of Pub. Lands, 2009-NMCA-004, ¶ 30, 145 N.M. 433, 200 P.3d

86 (declining to interpret the terms of the Enabling Act expansively when the congressional

intent behind the terms was clear).

{44} The implications of the Land Commissioner’s interpretation of the Enabling Act

cannot be overstated. The inescapable result of validating these exchanges under his

reasoning would be to authorize future public-private exchanges of any scale, subjecting

millions of acres of trust land to “disposition” at the discretion of the Land Commissioner.

We fail to understand why Congress would have taken such pains to safeguard sales and

leases for the benefit of the trust, and then leave open all other kinds of “dispositions” from

the trust to the vagaries of influence and manipulation. The Land Commissioner’s

interpretation would open the door to collusive deals and favoritism, a door the framers of

the Enabling Act explicitly stated intentions to shut. It would allow private deals favoring

select private parties.
16

C. The Failed 1990 Constitutional Amendment

{45} In addition to the Enabling Act’s plain language and its historical context, the recent

1990 election further confirms that the Enabling Act does not implicitly authorize

exchanges. The proposed 1990 constitutional amendment would have added the following

new language to Section 10 of the Enabling Act: 

The State commissioner of public lands may exchange any land granted or

confirmed by this Act for any land of the United States or an agency thereof,

a State agency or political subdivision, a beneficiary of lands granted or

confirmed by this Act, an Indian tribe or pueblo, or a private entity when the

commissioner finds, after consultation with the chief administrative officer

of the affected beneficiary of lands granted or confirmed by this Act, that—

(1) based upon appraisals of the true value thereof, the

value of the land to be received by the State is equal to or

greater than the land to be conveyed by the State; and

(2) the proposed exchange is beneficial to the interests

of the affected beneficiary.

Act of June 20, 1910, Pub. L. No. 101-386, § 1, 104 Stat. 739 (1990) (amending the Act of

June 20, 1910) (emphasis added) (quotation marks omitted). The amendment required first

a vote of Congress, Enabling Act, § 2(I), then a vote of the New Mexico Legislature, and

finally the approving vote of the people, N.M. Const. art. 19, § 4. It failed the popular vote

by a substantial margin. The amendment essentially would have given the Land

Commissioner the authority to enter into exchanges with private land owners, subject only

to appraised value and without a public auction, authority that a 1988 New Mexico Attorney

General Opinion had concluded did not exist.

{46} The 1988 Opinion had concluded that “the Commissioner of Public Lands may not

exchange state trust lands for lands of equal value held by private persons, local governing

bodies, trust land beneficiary institutions, state agencies or federal agencies other than the

Interior Department.” N.M. Att’y Gen. Op. 88-35 (1988). The Attorney General Opinion

had also concluded that, since the Enabling Act requires that lands be assigned a monetary

value, then “any disposition of trust lands will be for an agreed upon value and will result

in a ‘sale’ rather than an ‘exchange.’” Id. Continuing on, the 1988 Opinion had also

concluded that, “[b]ecause of the mandatory appraisal, it is not possible for the

Commissioner to engage in ‘exchanges’ of trust land for other land. The conveyances by

the Commissioner will be ‘sales,’ and moreover must comply with the Enabling Act’s

requirements, including appraisal, advertisement and public auction with sale to the highest

bidder.” Id.

{47} Following the defeat of the proposed 1990 amendment, a subsequent attorney general

overruled the 1988 Opinion. See N.M. Att’y Gen. Op. 91-15 (1991). The 1991 Opinion

concluded that the Enabling Act’s use of the word “dispose” gives the Land Commissioner
3

We note that this Court is not bound by opinions issued by the Attorney General and

will give them only such weight as deemed appropriate. See First Thrift & Loan Ass’n v.

State ex rel. Robinson, 62 N.M. 61, 70, 304 P.2d 582, 588 (1956).

17

broad authority to convey land beyond just a sale or a lease, including a private exchange.

Id. (“The authority of the Commissioner to ‘dispose’ of public lands granted by the New

Mexico Constitution and, with restrictions, by the Enabling Act includes the power to

exchange public lands.”). The 1991 Opinion also concluded that some of the sale and lease

restrictions in Section 10 of the Enabling Act applied to exchanges (such as the requirement

for sale at no less than appraised value), but that other restrictions (notice and public auction)

did not apply.3

 Id. Thus, the 1991 Opinion advised that the Land Commissioner had the

very exchange authority the people had rejected in the 1990 popular vote.

{48} The proposal and failure of the 1990 constitutional amendment attests to the lack of

legal authority to conduct unrestricted land exchanges with private entities under the

Enabling Act. The Land Commissioner disagrees. He argues that the authority to exchange

land with private parties existed even before 1990, and that the 1988 Opinion was simply

misguided when it asserted the contrary. Accordingly, the proposed (and defeated)

amendment was meant merely to “clarify” the preexisting authority. According to the Land

Commissioner, the voters’ rejection in 1990 meant only that, in their judgment, the Enabling

Act did not need clarification because the Land Commissioner had exchange authority all

along. We are not persuaded.

{49} Following the Land Commissioner’s logic, the legislative machineries of both the

U.S. Congress and the State of New Mexico were put into motion simply to clarify an

exchange authority that the Land Commissioner already had. And from there, the Land

Commissioner’s logic would lead us to conclude that the voters’ decisive rejection of the

proposed amendment was actually an endorsement of his exchange authority.

{50} We operate from a working assumption that the Legislature (and for that matter the

U.S. Congress) is well informed about the law and that its legislation is usually “intended

to change the law as it previously existed.” Bird, 91 N.M. at 284, 573 P.2d at 218; see also

Stone v. INS, 514 U.S. 386, 397 (1995) (“When Congress acts to amend a statute, we

presume it intends its amendment to have real and substantial effect.”). We conclude that

this intention is especially true for amendments to the State Constitution and the Enabling

Act—our most fundamental law.

{51} When New Mexico Senator Domenici addressed the U.S. Senate in support of the

proposed amendment, he explained that it would “permit the State of New Mexico to

exchange . . . lands granted . . . by the United States,” and that without the proposed

amendment “[u]nder the Enabling Act, the Public Lands Commissioner can only dispose of

trust lands by sale or lease to the highest bidder at a public auction.” 136 Cong. Rec. 21,234,

1990 WL 110523 (emphasis added). Senator Domenici went on to explain that “New Mexico
18

has not amended its Enabling Act to permit such exchanges, except for the limited purposes

of exchanging trust lands for National Forest Lands.” Id.

{52} Congressman Vento of Minnesota, Chairman of the Subcommittee on National Parks

and Public Lands, described the proposed amendment as a “noncontroversial measure”

dealing with a “technical . . . problem.” 136 Cong. Record 23,619 (1990), 1990 WL 129809.

He admitted that the amendment was necessary because of doubt as to “the legal ability of

the State, under the enabling act, to carry out . . . exchanges.” Id.

{53} New Mexico Congressman Skeen urged passage of the “essential” amendment

because “current authority is too restrictive to allow the land commissioner to properly carry

out his responsibilities.” Id. at 23,620. In fact, Congressman Skeen advised that “[t]o

remedy this void, Congress must pass this legislation allowing a change in the State's

Enabling Act. The voters of New Mexico must then approve a constitutional amendment.”

Id. These excerpts suggest that New Mexico’s members of Congress knew, and that

Congress was surely advised, that without a change in the Enabling Act, the Land

Commissioner could not legally engage in private land exchanges no matter how advisable

or beneficial they might be.

{54} The voters likely understood the proposed amendment in similar terms. Despite its

title, “To clarify the authority of the Commissioner of Public Lands to exchange lands under

his control,” the thrust of the proposed amendment was a grant of new authority to the Land

Commissioner. The 1990 proposed amendment was not the first time the Land

Commissioner had attempted to expand his authority, and it was not the first time such an

expansion was rejected by the people. Former Land Commissioner Humphries was well

aware of this trend when he addressed the Subcommittee on Public Lands, National Parks

and Forests in support of the amendment: “[H]istory clearly reveals that the people of New

Mexico have acted upon several exchange amendments and have clearly limited the

commissioner’s authority to exchange.” 136 Cong. Rec. 21,235, 1990 WL 110523 (adopting

Humphries’ earlier subcommittee statement into the record on the Senate floor).

{55} In 1990, the people of New Mexico once again “acted upon” an “exchange

amendment[],” and once again they “clearly limited the commissioner’s authority to

exchange.” Id. We have no basis to conclude that the way people voted on the issue of the

Land Commissioner’s exchange authority in 1990 was any different than the way they have

always voted. If the Land Commissioner wants exchange authority, then he must ask the

people, and if the people turn his proposal down, then he does not have the desired authority.

The Land Commissioner would have us engage in logical and semantical gymnastics.

Instead, we subscribe to the reasoning that, if the Enabling Act had always granted the Land

Commissioner authority to conduct exchanges, there would have been no need for the
4

Unlike the New Mexico Enabling Act, the Arizona Enabling Act was amended

authorizing Arizona “to exchange any lands owned by it for other lands, public or private,

under such regulations as the legislature thereof may prescribe: Provided, That such

exchanges involving public lands may be made only as authorized by Acts of Congress and

regulations thereunder.” Act of June 5, 1936, ch. 517, § 28, 49 Stat. 1477, 1478 (amending

the Enabling Act for the State of Arizona, approved June 20, 1910). The Arizona Supreme

Court interpreted the amendment as “Congress merely consent[ing] to removal of the

restrictions against exchange of trust land, but . . . not requir[ing] Arizona . . . to amend its

constitution or to pass legislation to allow exchanges.” Fain Land & Cattle Co. v. Hassell,

790 P.2d 242, 249-50 (Ariz. 1990) (in banc) (footnote omitted).

19

amendment.4

 Fain Land & Cattle Co. v. Hassell, 790 P.2d 242, 248 (Ariz. 1990) (in banc);

see also Thompson v. Legislative Audit Comm’n, 79 N.M. 693, 696, 448 P.2d 799, 802

(1968) (“[T]he [constitutional amendment] was defeated, thus showing that the people were

not willing to allow [an amendment] to sanction the legislative [action providing the same

as the amendment that] would not only thwart the constitutional provision but would

circumvent the will of the people as expressed at the ballot box.”).

D. Exchanges for a Minimum Monetary Value May Be Considered In-Kind Sales

{56} Because disposals are limited to the manner provided within the Enabling Act and

exchanges are not provided for, if any exchanges are permitted, such exchanges must be inkind sales. Exchanges of land based on the monetary value of each parcel may be

considered equivalent to a sale where the appraised consideration is not cash, but land.

Thus, any exchange authority is subject to the same restrictions that apply to all sales

governed by Section 10: public notice, a public auction with sale to the highest and best

bidder, and sale at a price no less than appraised value.

{57} This understanding of the Enabling Act recognizes the Act’s common ground with

Arizona’s Enabling Act. Arizona is our sister state—the same federal legislation enacted the

New Mexico and the Arizona enabling acts, and the Arizona Enabling Act was nearly

identical to the New Mexico Enabling Act when Arizona entered the Union. Compare

Enabling Act, ch. 310, §§ 1-18, 36 Stat. 557, 557-68 with §§ 19-35, 36 Stat. 557, 568-79.

In Fain, the Arizona Supreme Court considered the Arizona Enabling Act. Despite an

amendment to the Arizona Enabling Act that “clearly permit[ted] Arizona to authorize

exchanges of public trust lands,” the court concluded that such exchanges, still subject to the

requirement for a minimum monetary value in return, amounted to in-kind sales that were

subject to the Enabling Act’s sales requirements. Fain, 790 P.2d at 246-47; but see id. at 253

(Corcoran, J., concurring in result) (“The best indication that an exchange is not a ‘sale’ . .

. is that exchanges were not allowed as ‘sales’ under the 1910 Enabling Act until it was

amended in 1936 to include them. Implicit in that amendment is a recognition by Congress

that the Enabling Act of 1910 did not allow exchanges.”). Fain explained that when “there

is a fixed value at which the exchange is to be made,” 790 P.2d at 247, the transaction is
20

really a sale with consideration received in-kind rather than as cash, see id. at 246-48

(distinguishing its conclusion from jurisdictions that have differentiated between land

exchanges and sales by quoting 30 Am. Jur. 2d Exchange of Property § 3, 365-66 (1967),

which explained that the exchange of properties without measuring the value in terms of

money is an exchange, but that the disposal of property for valuable consideration measured

in terms of money is a sale).

{58} Although the New Mexico Enabling Act has not been amended to “clearly permit .

. . exchanges” like the Arizona Enabling Act, except in terms of exchanges with the U.S.

Department of the Interior, we find Fain persuasive. A conveyance of land in exchange for

other land, when the value is measured in monetary terms, may be considered an in-kind

sale. This conclusion is also consistent with the 1988 Opinion by the New Mexico Attorney

General, characterizing exchanges for a minimum monetary value as in-kind sales. N.M.

Att’y Gen. Op. 88-35. Indeed, given the Enabling Act’s restrictions, the Land Commissioner

can exchange only if the transaction passes scrutiny as a sale. As noted in Fain, Section 10

of the Enabling Act states in the most explicit terms that all state trust lands, leaseholds,

timber, and so forth, “shall be appraised at their true value” and cannot be sold or otherwise

disposed of “for a consideration less than the value so ascertained.” Thus, the Land

Commissioner may not dispose of any trust land without first establishing its value in

monetary terms and obtaining at least that monetary value as consideration. 

{59} For all the reasons discussed in this Section, we hold that, as an in-kind sale, any

exchange of land must comply with the Enabling Act’s sales provisions. We stress that a

constitutional amendment remains an option to obtain authority to conduct land exchanges

without these restrictions. The Land Commissioner’s argument, that the 1988 Attorney

General Opinion created so much confusion that congressional action and a constitutional

amendment were required, concedes that the same need for such a constitutional amendment

exists today. In the meantime, any ambiguity should be construed consistently with

congressional intent and electoral will, and both counsel against the Land Commissioner’s

expansive interpretation.

III. Public Auction to the Highest and Best Bidder

{60} The State Land Office has promulgated regulations that, the Land Commissioner

argues, adequately provide for a public auction. We do not dispute whether the four

challenged exchanges were conducted under these regulations. Rather, in this Section, we

examine the second purely legal question regarding the Enabling Act’s limitations on the

Land Commissioner’s discretion that we put forth above in our mandamus discussion: “As

a matter of law, do the challenged exchanges comply with the required elements for a valid

sale of land, including the requirement of a public auction to the highest and best bidder?”

A. A Public Auction Defined

{61} An auction is “[a] public sale of property to the highest bidder.” Black’s Law
21

Dictionary 149 (9th ed. 2009). In 1876, the Ohio Supreme Court described the history of

the auction:

This practice is said to have originated with the Romans, who gave

it the descriptive name of auction, an increase, because the offered property

was sold to him who would offer the most for it. This method of sale was

established by the Romans for the disposal of military spoils, and was

conducted sub hasta—-that is, under the spear; on such occasions the spear

was stuck in the ground. This practice has passed away as to the spear, but

the method still continues.

Crandall v. State, 28 Ohio St. 479, 481 (1876). The court described some “modern”

variations, including the “Dutch method” and “sale by candle,” but concluded that all

variations have common elements: 

At auctions the bidders fix by competition the price at which the

offered property is sold. This competition is an element of each offer and

each bid. Into each of the methods named, competition is a necessary

element in the offer, the bid and the act of selling the offered property.

Id. Thus, competition is the means by which an auction achieves the primary goal, obtaining

the best return for the seller. Around the same time, the U.S. Supreme Court described its

understanding of a public auction: “When the law requires a sale of property, real or

personal, to be made at public auction, after due notice, it is for the purpose of inviting

competition among bidders that the highest price may be obtained for what is sold.” Porter

v. Graves, 104 U.S. 171, 174 (1881).

{62} Contemporaneously with the passage of New Mexico’s Enabling Act, several state

courts discussed the required elements for an auction. The Montana Supreme Court

interpreted the requirement that “sales of state lands shall be at public auction,” to mean “a

sale to the highest and best bidder with absolute freedom for competitive bidding.” State ex

rel. Danaher v. Miller, 160 P. 513, 515 (Mont. 1916) (internal quotation marks and citation

omitted). The court further warned that “[a]ny agreement . . . to stifle competition or chill

the bidding is a fraud upon the principle upon which the sale is founded.” Id. The Supreme

Court of the Territory of Hawaii explained that “competition . . . is that which distinguishes

a sale at auction from other sales where the attempt to sell and to agree on a price is made

with but one prospective purchaser at a time.” Territory v. Toyota, 19 Haw. 651, 653 (1909).

The Idaho Supreme Court adopted Hawaii’s perspective: “In an auction, competition is a

necessary element . . . .” Hammond v. Alexander, 177 P. 400, 401 (Idaho 1918) (citing

Toyota, 19 Haw. at 653).

{63} The foregoing opinions, issued around the same time that New Mexico became a

state, are some indication of what the framers of the Enabling Act likely meant when they

said: “Said lands shall not be sold or leased, in whole or in part, except to the highest and
22

best bidder at a public auction.” Over time, courts have continued to focus on the element

of competition as essential to a public auction. See In re Peoples Cab Co., 89 F. Supp. 577,

580 (W.D. Pa. 1950) (“[T]he very purpose of an auction . . . is to fetch together all those who

may be interested to buy and set them against each other with whatever stimulus that may

provide, as opposed to other kinds of sale.”); B.H. Stief Jewelry Co. v. Walker, 256 S.W.2d

392, 397 (Tenn. Ct. App. 1952) (“Competitive bidding, up or down, is an essential element

of an auction sale. A sale at fixed or flat prices, no higher nor lower, is not an auction sale

regardless of the manner in which the merchandise is offered for sale at the fixed price.”);

State v. Pub. Util. Comm’n of Tex., 246 S.W.3d 324, 343-44 (Tex. App. 2008) (explaining

the legislature’s intent in requiring an auction was to encourage competition); Kolbo v. Blair,

379 S.W.2d 125, 129 (Tex. App. 1964) (“[A] sale at public auction is a sale to the highest

bidder—its object, a fair price—its means, competition—its results, a sale, presumed as a

matter of law to be fairly conducted.”); Mfrs. Hanover Trust Co. v. Koubek, 396 S.E.2d 669,

671-72 (Va. 1990) (explaining that a public sale and auction require a competitive

environment and that the early policies behind the requirement, protecting financial return,

still apply today). We recognize that competition has been an essential element of a public

auction since before the time New Mexico adopted the Enabling Act, that it was essential

when New Mexico adopted the Enabling Act, and that it is still essential today.

{64} Courts have also emphasized that an auction’s purpose is distinct from other types

of sales. The Hawaii Territorial Court, for example, instructed that “[t]he main purpose of

auction sales is to obtain the best financial returns for the owners of the property sold.”

Toyota, 19 Haw. at 652. The public auction, thus, is a mechanism to make sales using an

objective basis, the highest financial gain, to discern between offers. This characteristic of

an auction made it an attractive tool when states sought to safeguard public land sales against

favoritism. The Minnesota Supreme Court explained that the public auction requirement for

sales of its state school lands was “to foster and conserve the school fund, to prevent school

lands from being sold at an inadequate price, and to secure competition therefor, and to

guard against favoritism in the disposition thereof.” State v. Evans, 108 N.W. 958, 959

(Minn. 1906)

{65} The U.S. Supreme Court stated that the public auction and notice requirements in the

Arizona and New Mexico Enabling Act “were . . . intended to guarantee, by preventing

particular abuses through the prohibition of specific practices, that the trust received

appropriate compensation for trust lands.” Lassen, 385 U.S. at 464 (considering Arizona’s

identical Enabling Act); see also Fain, 790 P.2d at 248 (“The purpose of [the auction]

provision is to ensure that the trust receives the most benefit possible from sale or other use

of the trust lands. Without sale at public auction, the trust is not guaranteed the additional

profit that might result from competitive bidding.” (internal citation omitted)). As

previously explained, the “particular abuses” that Congress sought to prevent were “the

repeated violations of a similar grant made to New Mexico in 1898 . . . [that] allegedly

consisted of private sales at unreasonably low prices, and the [Senate Committee on the

Territories] evidently hoped to prevent such depredations here by requiring public notice and

sale.” Lassen, 385 U.S. at 464 (footnote omitted).
23

{66} Finally, courts recognize that for a valid auction to occur it must be “fair and open.”

See, e.g., Springer v. Kleinsorge, 18 Mo. 152, 163 (1884) (“The offer of property at public

auction is itself a proclamation by the seller that the highest bidder, in a fair and open

competition, is to obtain the property.”). Open competition furthers the purpose of using an

auction as a sale mechanism because it dissuades favoritism and encourages objectivity.

This raises the question as to what “open” means. Case law and our own Enabling Act’s

history demonstrate that an auction remains “open” even if general parameters are

established for the purpose of ensuring that the highest bid also results in the highest

financial delivery. In other words, limiting bids to those parties whose credit is secured or

parties who have other indicia of reliability in order to guarantee the “best financial returns,”

is acceptable.

Some measure of discretion is vested in auctioneers as to the precise methods

to be pursued in attaining [the best financial returns], for example, bids need

not be accepted from minors or from persons irresponsible either financially

or mentally or from drunken persons or from one offering in bad faith or even

from one making but a slight raise in his bid over the bid last announced.

Toyota, 19 Haw. at 653.

{67} Section 10 of the Enabling Act incorporates the idea that an “open” auction can be

limited to pursue the best financial return as well. S. Rep. No. 61-454, at 18. Significantly,

a prior version Section 10 of the New Mexico Enabling Act did not provide for an auction

to the “highest and best bidder,” but rather only the “highest bidder,” S. Rep. No. 61-454,

at 18. That earlier version also prohibited land sales on credit, “unless accompanied by

security,” id., the credit sales provision was later removed, and the term “and best” was

added, requiring that the winning bidder be the “highest and best,” Enabling Act § 10. The

initially proposed limitation on credit sales is precisely the type of limitation contemplated

by the requirement that the highest bid also be the “best bid.” Requiring sale to the “highest

and best” bidder therefore provides for objective selection of the winning bid at a public

auction, while ensuring that the sale remain open to competitive bidding.

{68} Thus, the Enabling Act’s mandate that sales be only to “the highest and best bidder

at a public auction” requires more than just a minimum floor price. It means that the trust

beneficiaries have, at least, an opportunity by way of a sale driven by open competition

among bidders for the best price. The inclusion of the term “best” does not, however,

provide discretion in selecting the winning bidder. Just as other courts have done before us,

we recognize that the purpose of an auction is to obtain the highest financial return. Further,

we recognize that Congress selected a public auction as the mechanism for selling public

lands in New Mexico to allow an objective means for buyer selection, thus eliminating the

risk of favoritism that was pervasive in public land sales, particularly in the New Mexico

Territory before the Enabling Act.

B. Private Negotiations and Bargaining
24

{69} Before today our Court had not discussed the elements required for a valid public

auction. In State ex rel. Otto v. Field, however, we wrote that the Enabling Act requires the

same basis for all bids and bidders and that a negotiated contract, established after an

auction, would be objectionable because it would defeat that requirement. 31 N.M. 120,

179, 241 P. 1027, 1050 (1925). Other jurisdictions have found that negotiations and

bargaining prior to an auction impede competition and are inconsistent with the meaning of

a true auction. As we shall see, the presence of extended negotiations with one bidder long

before notice to the public of an auction presents a particular problem for the Land

Commissioner in this case.

{70} The U.S. Supreme Court long ago recognized the contradiction between private

negotiation and public auction. See Porter v. Graves. 104 U.S. 171 (1881). In Porter, a

seller negotiated for the sale of property left intestate, for which state law required sale of

the intestate property at a public auction. Id. at 172-73. In order to “comply” with that law,

the property was advertised and then announced at the sale by the auctioneer as “sold to

perfect a contract for sale” to the buyer’s company. Id. at 173. The Court found that, if the

sale were challenged by parties “interested in having the property bring its full value,” the

sale would surely have been set aside because it was not a valid auction. Id. at 174.

Continuing on, in language particularly appropriate to the four challenged exchanges in this

case, the Court stated:

To make a private bargain beforehand between the party who wishes to buy

and the person authorized to sell, as to the price and other incidents of the

contract, and then invoke the forms of a public sale with competition to give

effect to the private bargain is a course of procedure well calculated to defeat

the purpose for which the public sale is required.

Id. at 174.

{71} Similarly, state courts have found negotiations and bargaining between bidders prior

to an auction to be antithetical to a valid auction. In Hammond, the Idaho Supreme Court

found that a conveyance of state trust land was not sold by auction as required by the state’s

constitution, when negotiations occurred between the bidding parties. 177 P. at 400-01.

Before bidding started, auction participants drew lots among themselves for the parcels of

land available and then took turns “bidding,” one party per parcel, as determined by the lots

drawn. Id. Although the court found that not all agreements among prospective bidders

would defeat an auction, “if the purpose in so agreeing is to stifle competition, and if it

causes the property to be awarded to a bidder, or bidders, for less than would have otherwise

been offered, the vendor may avoid the sale.” Id. at 401. Because the court found the sale

was void, it rejected the writ of mandamus requesting enforcement of the sale. Id.

{72} We recognize that bargaining and negotiation between buyers and sellers or between

buyers prior to a sale negates the essence of what it means to have a public auction free and

open to competition. Rather than seeking the highest financial gain through objective means,
25

negotiation and bargaining design a satisfactory exchange for two parties to the exclusion

of the public. See Black’s Law Dictionary, supra, at 169 (defining a bargain as “[a]n

agreement between parties for the exchange of promises or performances), 1136 (defining

a negotiation as “[a] consensual bargaining process in which the parties attempt to reach

agreement on a disputed or potentially disputed matter”). “Negotiation usu[ally] involves

complete autonomy for the parties involved, without the intervention of third parties.”

Black’s Law Dictionary, supra, at 1136.

C. The Challenged Exchanges

{73} For the following reasons, the four challenged land exchanges do not comply with

the Enabling Act’s requirement for a public auction. The undisputed facts on record show

that each land exchange process involved extensive private negotiations with specific parties.

Those private parties had significant advantages over any possible “competitors.” The Land

Commissioner “target[ed]” the exchange lands as part of an overall plan, whereby the

purpose of the exchanges was not to secure the highest financial gain to the trust through

selection of the “highest and best” bid, but rather to accomplish other land management

goals. Finally, the means for selecting the winning bid were not objective. Thus, the

exchanges embody the elements indicative of favoritism that the drafters of the Enabling Act

sought to avoid by requiring public notice and public auction.

{74} In describing the Stanley Ranch exchange, the Land Commissioner concedes that the

exchange would not have been possible or desirable to the state:

In the absence of this kind of discussion and a bidding process that allowed

for a single transaction in which certain trust lands would be conveyed for

other lands which would justify the disposition, it is unlikely that any kind

of transaction could be completed that would provide sufficient benefit to the

trust.

In other words, the negotiations that took place for the Stanley Exchange were the only way

to accomplish the goals the State Land Office had set for that land exchange. Because no

other parties had the opportunity to participate in such discussions that made “any kind of

transaction . . . sufficient[ly] benefi[cial] to the trust,” there was no competition, no

safeguards of objectivity, no openness, and thus no “public auction.”

{75} The Land Commissioner insists there was no taint of favoritism. But the requirement

of a public auction means that the people should not have to take anyone’s word attesting

to his or her objectivity. To the contrary, the Enabling Act chose a mechanism to protect

against favoritism and stipulated a public auction “to the highest and best bidder” through

open competition. The people did not select, and in fact rejected, “private negotiation” as

an approved mechanism for the sale of public land.

D. Lack of Competition
26

{76} During oral argument the Attorney General compared the challenged land exchanges

to the sale of a tailor-made suit; he questioned whether any true competition could take

place when an auctioned product was custom-made for only one particular customer. The

metaphor is a good one, if incomplete. More precisely, each transaction is better thought of

as an exchange of tailor-made suits, in which the “auctioned” suit is custom-made for the

buyer, suits are the preferred currency, and the “winning” suit is custom-made for the seller.

No one else has such a suit, or as a practical matter, can find one. Competition is surely in

jeopardy when the bidding party also holds the one and only suit custom-made for the seller.

{77} The uncontested facts demonstrate, more clearly than an exchange of custom-made

suits, that the land exchange procedure applied in each of the four challenged exchanges

lacked competition. First, each applicant (a neighboring landowner) contacted the State

Land Office to specify land desired in exchange for specific land held by the State Land

Office. This first step in the exchange procedure allowed the applicant the opportunity to

craft the land available for sale to his own interests. While this step of the process, alone,

may not have precluded competition entirely, it contributed to the lack of competition when

combined with the next steps.

{78} The State Land Office then appraised the exchange proposal for the land’s value and

its ability to ameliorate management and access issues. If interested in the applicant’s

proposal, the State Land Office then began working with the applicants to plan a sale that

satisfactorily met the interests of both parties—the applicant and the State Land Office. This

second step of the exchange process allowed the applicants an extended time period,

compared to the notice for any other parties, to design their bids through back and forth

communication over a substantial period of time. These communications and adjustments

occurred long before other potential bidders were notified that the Land Commissioner

would be exchanging land.

{79} Even the Land Commissioner describes this process as a “negotiation” with each

private land owner. In the case of the Stanley Ranch exchange, the initial evaluation by the

Land Commissioner found “substantial changes would need to be made in order to proceed

with the consideration of any exchange.” State Land Office staff then spent many months

discussing “an exchange that would meet legal requirements and be beneficial to the trust.”

The Stanley Ranch negotiations took two years before the Land Office announced an

“auction.” The UU Bar Ranch negotiation took over a year and a half, and the CS Ranch

and Galloway exchange negotiations had been going on for over a year and a half before the

Attorney General filed its Writ of Mandamus early in 2010.

{80} Based on the foregoing process, by the time an auction was announced by the Land

Commissioner at the tail end of the process, one applicant already knew that its previously

proposed and negotiated exchange was mutually agreeable. In contrast, all other potential

bidders were permitted only ten weeks between announcement of the sale and an opportunity

to participate in the sale. During those ten weeks other potential bidders had to (1) ascertain

the desirability of the lands offered by the State Land Office, (2) determine the risk/reward
27

of spending the time and money to appraise their lands when another bid already existed that

was acceptable to the State, (3) appraise their exchange land, and (4) construct a competitive

bid of greater value than the lands offered, either independently or in cooperation with

others.

{81} All the while, other potential bidders would know that the Land Commissioner did

not have to accept their bids, even if superior in price and ability to perform—because, as

we shall see in the discussion below, the Land Commissioner’s criteria for selecting the

winning bids were not objective, nor were they focused on the “highest and best” bid. Even

if competing bids were theoretically possible in the face of the advantages to the bidding

landowner and disadvantages to other bidders, the process was designed such that other

bidders would not likely succeed. The foregoing procedure made competition—the essential

element of an auction—improbable rather than fundamental.

E. Public Auction Purpose Frustrated

{82} In addition to the lack of competition, the challenged exchanges and the State Land

Office’s exchange process frustrate the intended purpose of a public auction as well as the

purpose of the Enabling Act’s inclusion of the public auction sales requirement. As we

discussed, supra, the purpose of an auction is to obtain the highest financial gain, and the

purpose of Congress’s requirement that an auction be the mechanism used for public land

sales was to require an objective means of sale, eliminating the possibility of private

favoritism.

{83} We should be candid about the objectives of these particular exchanges. They were

designed to achieve a predetermined result. The exchanges were for the purpose of

addressing specific land management problems in specific geographical

regions—checkerboard areas—that could only be resolved by privately negotiated

exchanges with neighboring landowners. Only certain land, however, along the

checkerboard border could be exchanged in a manner that would ameliorate land

management problems of both the State Land Office and its neighbors. Outside land (land

from somewhere else) might be worth more, even a lot more, but it could not address the

checkerboarding issue; it would only replace one owner for another into the same

checkerboarding problem. It is no stretch for us to recognize that these problems could only

be resolved through a privately negotiated exchange, which is exactly what the parties

attempted to accomplish.

{84} For example, the Stanley Ranch exchange would provide the ability to fulfill the

State Land Office’s “plan” for an access road and campsites, all part of creating “a prime

recreational and quality hunting area.” The UU Bar Ranch proposal was of interest because

it offered in-fill parcels. The CS Ranch exchange would allow construction of a loop road

and would fill in land holdings. The Galloway proposal would provide in-fill parcels and

an access road.
28

{85} The State Land Office frankly states in its Brief in Opposition, at page 40, that 

[t]he checkerboarding problems in the White Peak area created a “compelling

reason” for the Commissioner to target specific lands for exchange in order

to consolidate, or “unitize,” the existing state trust lands in the area, thereby

increasing the value of those lands by more than $13 million, enhancing the

Commissioner’s ability to protect that land, increasing the recreational

opportunities available within the area, increasing access to the trust lands,

and augmenting grazing revenues.

(Emphasis added.) Not only were the lands targeted for exchange, but the State Land Office

describes the exchanges as the Land Commissioner exercising his “power to manage lands

through exchanges designed to address the checkerboarding problems in various parts of the

state.” (Emphasis added.) The State Land Office’s exchange rules, in fact, state that “the

commissioner . . . may select the proposal or proposals he determines are the highest and

best, that is, the proposal or proposals that he believes will be most beneficial to the trust in

accordance with the standards set forth in Subsection A and C of 19.2.21.8 NMAC.”

19.2.21.10 NMAC (6/15/2004). Subsection A provides that “[t]he commissioner may enter

into an exchange when the commissioner determines that the exchange will result in a

material benefit to the trust and the purpose of the exchange would serve the best interests

of the trust.” 19.2.21.8(A) NMAC (6/15/2004). Subsection C, similarly, allows “the

commissioner [to] select another method of determining true value [one that does not involve

a qualified appraiser] if he determines that such method is in the best interests of the trust

and conform to law.” 19.2.21.8(C) NMAC. According to the State Land Office Rules, the

purposes of land exchanges are subjectively defined by the Land Commissioner, and

financial advantage to the trust is not emphasized as the priority. In line with these rules,

both the Stanley Ranch and the UU Bar Ranch bid specifications vested the Land

Commissioner with discretion to select the winning bid, based on subjective factors rather

than absolute financial benefit to the trust fund. The “Selection of the Winning Bid”

provision of the Bid Information Packets for both exchanges provided, in full:

The Commissioner will exercise his discretion in selecting the exchange

proposal which is in the best interest of the State trust, considering the

following factors:

(1) the extent to which the appraised value of the

Offered Lands, as determined by the

Commissioner, exceeds the appraised value of

the Exchange Lands;

(2) the effect, if any, that the bidder’s proposed

use of the Exchange Lands would have on the

utility and value of any adjacent state trust

lands;

(3) the proximity of the Offered Lands to other

state trust lands, and any land management
29

issues;

(4) the difference in acreage between the Offered

Lands and the Exchange lands;

(5) any other benefits accruing to, or detriments

to, the state trust from the proposed

acquisition.

None of the five factors provides an objective, measurable means of distinguishing between

bids. Even if a bid were highest in monetary value and demonstrably superior in all respects

under factors (1)-(4), factor (5) would give the Land Commissioner discretion to reject that

bid based essentially on anything he determined to be in the “best interest” of the trust. Such

opportunity for discretion is a direct affront to the purposes of the public auction

requirement.

{86} In sum, the four challenged exchanges and the State Land Office exchange

procedures, in general, preclude the existence of a public auction. As a matter of law,

private negotiation negates the required competition. Further, the Land Commissioner’s

discretion to select a buyer negates the safeguards intended by the Enabling Act’s auction

requirement. Without the benefit of an auction’s objective means of sale, awards of land

only for the highest financial return to the state trust, there is no protection against

favoritism. Therefore, such private land exchanges represent a departure from the Land

Commissioner’s ministerial duties under the Enabling Act. When the Land Commissioner

chooses to dispose of land, he must do so by a true public auction.

IV. Scope of the Writ

A. Completed Exchanges.

{87} The Land Commissioner exceeded the bounds of permitted authority under the

Enabling Act by conducting the Stanley Ranch and the UU Bar Ranch exchanges. Section

10 of the Enabling Act provides that “[e]very sale, lease, conveyance or contract of or

concerning any of the lands hereby granted or confirmed, or the use thereof or the natural

products thereof, not made in substantial conformity with the provisions of this Act shall be

null and void . . . .” Under NMSA 1978, Section 19-7-8 (1912), the Land Commissioner has

the “power to cancel any lease, contract or other instrument executed by him which shall

have been obtained by fraud or executed through mistake or without authority of law.” As

such, the Stanley Ranch and the UU Bar Ranch exchanges are null and void and must be

cancelled. A Writ of Mandamus will issue ordering the Land Commissioner to cancel all

documents or other legal instruments purporting to implement these two exchanges including

any transfers of title.

B. The Planned CS Ranch and Galloway Exchanges

{88} While the CS Ranch and Galloway exchanges have not been consummated with an
5

We are led to believe that numerous exchanges with public entities have taken place

over the years. At oral argument the Land Commissioner suggested that the State Land

Office has exchanged land with numerous private parties as well. However, the only private

exchange referenced in the Land Commissioner’s briefing was the 1983 United Nuclear

Corporation exchange, involving less than 500 acres of land and a recent exchange with

Easter Seals Santa Maria El Mirador. After oral argument before this Court and

supplemental briefing from the parties, Easter Seals Santa Maria El Mirador and Union

Pacific Railroad Company submitted a joint amicus curiae brief, asserting they had each

consummated private exchanges for small amounts of land with the Land Commissioner.

This Opinion has no effect upon any previous exchanges.

30

auction or a transfer of title, they have proceeded thus far in the same manner as the unlawful

Stanley Ranch and UU Bar Ranch exchanges. We have held that “Public functionaries may

be restrained by mandamus from doing what they know is an illegal act.” Kiddy v. Bd. of

Cnty. Comm’rs of Eddy Cnty., 57 N.M. 145, 152, 255 P.2d 678, 683 (1953). If these

exchanges were to continue as planned, the Land Commissioner would once again be in

violation of the Enabling Act. Therefore, a Writ of Mandamus will issue compelling the

Land Commissioner to comply with the sales requirements of the Enabling Act and ordering

the Land Commissioner not to consummate or proceed any further with the CS Ranch and

Galloway exchanges. See State ex rel. Clark v. Johnson, 120 N.M. 562, 570, 904 P.2d 11,

19 (1995) (“It is well settled that the two processes, mandamus and injunction, are

correlative in their character and operation. As a rule, whenever a court will interpose by

mandamus to compel the performance of a duty, it will exercise its restraining power to

prevent a corresponding violation of duty.” (quoting In re Sloan, 5 N.M. 590, 628, 25 P. 930,

942 (1891))).

C. Prospective Application

{89} In light of the previously debated state of the law regarding the question of

exchanges, we apply our writ and the reasoning behind it only to the exchanges challenged

by the Attorney General in this case and not to any exchanges that may have taken place in

the past. See Beavers v. Johnson Controls World Servs., Inc., 118 N.M. 391, 397 n.7, 881

P.2d 1376, 1382 n.7 (1994) (explaining the availability of selective prospective or modified

prospective decisions when the Court explicitly declares such a holding). We do not wish

to leave any cloud on previously transferred titles that are not before us.5

 We have

previously applied our opinions prospectively when policy considerations compelled such

a choice. See Montano v. Gabaldon, 108 N.M. 94, 96, 766 P.2d 1328, 1330 (1989) (holding

that Valencia County’s revenue bonds were unconstitutional but applying the holding

prospectively so as not to disturb similar, previous bond transactions that had taken place in

reliance on a then-accepted understanding of the law); see also Hicks v. State, 88 N.M. 588,

592-93, 544 P.2d 1153, 1157-58 (1975) (abolishing common law sovereign immunity

prospectively so as to give the legislature opportunity to create a risk management fund and

to institute selective statutory sovereign immunity). We also observe that the Attorney
31

General has not sought to challenge the Land Commissioner’s authority to engage in any

future exchanges with public entities. Accordingly, we express no view on that subject. 

CONCLUSION

{90} The Petitioner’s Writ of Mandamus is granted.

{91} IT IS SO ORDERED.

______________________________________

RICHARD C. BOSSON, Justice

WE CONCUR:

______________________________________

PATRICIO M. SERNA, Justice

______________________________________

PETRA JIMENEZ MAES, Justice

EDWARD L. CHÁVEZ, Justice (dissenting)

CHARLES W. DANIELS, Chief Justice (joining in the dissent)

CHÁVEZ, Justice, dissenting.

{92} The Land Commissioner is not simply an auctioneer charged with the responsibility

to sell public trust lands. The Commissioner is a trustee of public lands with fiduciary

responsibilities to preserve, protect, and manage trust lands so as to make the lands

productive for the benefit of the trust beneficiaries to whom he owes an undivided loyalty.

The majority has eliminated a seldom used, but occasionally necessary and effective land

management strategy available to the Land Commissioner, which can increase the value of

the trust corpus and make management of the property more efficient and economical,

thereby maximizing the benefit to the trust beneficiaries. Constraining the Land

Commissioner’s fiduciary responsibilities and the exercise of his discretion exceeds the

limits of our power to issue writs of mandamus, and is detrimental to the interests of the trust

lands’ beneficiaries. Therefore, I respectfully dissent.

{93} This Court has repeatedly observed that the writ of mandamus is an extraordinary

remedy to be reserved for extraordinary circumstances. To ensure that the writ issues only

in extraordinary circumstances, since before statehood this Court has required (1) that a party

seeking issuance have no other adequate means to attain the desired relief, and (2) the duty

sought to be enforced is clear and indisputable. Regents of Agric. Coll. v. Vaughn, 12 N.M.

333, 342-43, 78 P. 51, 53 (1904). Other adequate means do exist to challenge the land
32

exchanges at issue, including the remedy provided for in the Enabling Act. N.M. Territorial

Laws & Treaties, Enabling Act for New Mexico (Act of June 20, 1910, 36 Stat. 557, ch. 310)

(“the Enabling Act”). In addition, as is evident from the briefs filed by both the parties and

Amici, the Land Commissioner’s duty not to exchange trust lands for more valuable and

productive lands is neither clear nor indisputable. On the contrary, land exchanges that (1)

substantially conform to the requirements of the Enabling Act, (2) are consistent with the

best interests of the beneficiaries, and (3) comport with the rules adopted by the Land

Commissioner are permissible.

{94} This mandamus proceeding is also inappropriate because whether the subject land

exchanges satisfy these criteria requires the development of a factual record. The

Commissioner has asserted that the subject land exchanges have increased the value of the

trust corpus by $13,000,000 and have met his objectives to (1) improve boundary distinction

for trust lands; (2) consolidate holdings so that the State would own 43,000 contiguous acres

(25,000 contiguous on the east side of White Peak and 18,000 contiguous on the west side

of White Peak); (3) facilitate effective land management strategies; (4) mitigate trespass,

vandalism, theft, illegal vehicle use, and poaching; (5) create a quality game and wildlife

area; (6) improve existing roads and construct new, all-weather roads to provide safe access;

(7) close unnecessary roads to conserve wildlife habitat; (8) develop campgrounds and

facilities for hunters and recreational users; (9) implement forest restoration programs to

improve forest health and wildlife habitat. Whether the exchanges did in fact increase the

value of the trust corpus and meet objectives that are consistent with the best interests of the

trust beneficiaries requires the development of facts. Therefore, those with standing who

believe these exchanges are inconsistent with the Land Commissioner’s fiduciary obligations

may sue in a court of general jurisdiction to void any exchange which does not substantially

conform with the requirements of the Enabling Act.

I. MANDAMUS IS APPROPRIATE ONLY WHEN THE DUTY AT ISSUE IS

CLEAR AND INDISPUTABLE

{95} Although a writ of prohibition cannot lie against a state official, see State ex rel. Bird

v. Apodaca, 91 N.M. 279, 281-82, 573 P.2d 213, 215-16 (1977) (“Prohibition, by its very

nature, will not lie against state officers.”), mandamus can be used in a prohibitory manner

to prohibit unlawful or unconstitutional official action. See Kiddy v. Bd. of Cnty. Comm’rs

of Eddy Cnty., 57 N.M. 145, 152, 255 P.2d 678, 683 (1953) (“Public functionaries may be

restrained by mandamus from doing what they know is an illegal act.”). In considering

whether to issue a prohibitory mandamus, we do not assess the wisdom of the public

official’s act, we determine whether that act goes beyond the bounds established by the New

Mexico Constitution. State ex rel. Clark v. Johnson, 120 N.M. 562, 570, 904 P.2d 11, 19

(1995).

{96} The Constitution and laws of New Mexico define the limits of authority for each

branch of government. In 1904, the limits of our authority to issue a writ of mandamus were

defined by the Territorial Supreme Court when it wrote “[i]t is said by the highest judicial
33

tribunal in the land that, ‘mandamus lies to compel the performance of a statutory duty only

when it is clear and indisputable.’” Vaughn, 12 N.M. at 342-43, 78 P. at 53 (quoting Bayard

v. United States ex rel. White, 127 U.S. 246, 250 (1888)). We have never abandoned the

requirement of a clear and indisputable duty as essential for the issuance of a writ of

mandamus. Johnson v. Vigil-Giron, 2006-NMSC-051, ¶ 22, 140 N.M. 667, 146 P.3d 312.

Instead, because it is such an extraordinary writ that must be issued only in extraordinary

circumstances, we have carefully defined its limits.

Mandamus is a drastic remedy to be invoked only in extraordinary

circumstances. The writ shall not issue in any case where there is a plain,

speedy and adequate remedy in the ordinary course of law. It shall issue on

the information of the party beneficially interested. [A] writ of mandamus

is available only to one who has a clear legal right to the performance sought;

it is available only in limited circumstances to achieve limited purposes.

State ex rel. Coll v. Johnson, 1999-NMSC-036, ¶ 12, 128 N.M. 154, 990 P.2d 1277 (internal

quotation marks and citations omitted).

While mandamus will not lie to correct or control the judgment or

discretion of a public officer in matters committed to his care in the ordinary

discharge of his duties, it is nevertheless well established that mandamus will

lie to compel the performance of mere ministerial acts or duties imposed by

law upon a public officer to do a particular act or thing upon the existence of

certain facts or conditions being shown, even though the officer be required

to exercise judgment before acting.

State ex rel. Four Corners Exploration Co. v. Walker, 60 N.M. 459, 463, 292 P.2d 329,

331-32 (1956) (citations omitted). “A ministerial act is an act which an officer performs

under a given state of facts, in a prescribed manner, in obedience to a mandate of legal

authority, without regard to the exercise of his own judgment upon the propriety of the act

being done.” State ex rel. Perea v. Bd. of Comm’rs of De Baca Cnty., 25 N.M. 338, 340, 182

P. 865, 866 (1919). Therefore, our jurisprudence instructs that before we are empowered to

issue a writ of mandamus, (1) the boundaries of the duty at issue must be clear and

indisputable, (2) the public official must not have discretion in the performance of the duty,

and (3) there must not exist another plain, speedy, and adequate remedy in the ordinary

course of law.

{97} In this case, despite notice to the public as required by the Land Commissioner’s

rules, 19.2.21.9(D) NMAC, only one bid was received, and no members of the public

objected to the bid process. The Attorney General has not filed this mandamus proceeding

on behalf of any specific beneficiary who contends that the Land Commissioner breached

his fiduciary duty to them by engaging in the subject land exchanges. The Attorney General

does not contend that the Land Commissioner failed to comply with the Enabling Act’s

public notice requirements; failed to open the bidding to all members of the public; engaged
34

in an exchange of trust lands for a value that was less than the true appraised value of the

trust lands; or that the exchange will not serve the best interests of the trust beneficiaries by

making management of the trust corpus more efficient and economical. Instead, the

Attorney General contends that the Land Commissioner did not comply with the public

auction requirements because the Commissioner required competing bidders to offer, at a

minimum, land with at least the same value as the trust land, and only for all of the trust land

the Commissioner proposed to dispose of. These bid requirements, argues the Attorney

General, substantially constrained the public auction to achieve a predetermined result. In

other words, the Attorney General wants this Court to hold that the Land Commissioner must

allow a bidder to bid for trust land in cash, land, other items of value or a combination

thereof, and the bidder may also bid on a portion of the land being offered at auction.

{98} Thus, the question before us is whether the Land Commissioner has a clear and

indisputable duty to allow bidders to offer any and all forms of consideration and on any

portion of the land the Commissioner seeks to dispose of in a public auction. As will be

discussed, this duty is not clear and indisputable. The Land Commissioner has the discretion

to establish the terms of the auction that are in the best interests of the trust beneficiaries.

In addition, there are adequate remedies, including the remedy given in Section 10 of the

Enabling Act, that authorize an action to enforce the provisions of the Enabling Act and

render null and void any “sale, lease, conveyance or contract of or concerning any of the

[trust] lands” which are not made in “substantial conformity with the provisions of [the

Enabling] act.” Enabling Act § 10.

{99} Despite the Attorney General’s narrow complaints, the majority has raised its own

concerns with the auction process and would preclude the Land Commissioner from having

any discussions with a potential bidder before the auction and from considering any criteria

other than financial criteria. I do not agree that such discussions are precluded. Instead,

such discussions will aid the Land Commissioner in defining the best interests of the trust

beneficiaries, thus defining a bid’s minimum requirements. Any member of the public is still

invited to meet or exceed the minimum bid requirement. The Land Commissioner may still

be called to answer whether such a bid exceeded the true appraised value of the trust land

and whether the bid was in the trust beneficiaries’ best interests. When evaluating which is

the highest and best bid that is consistent with the trust beneficiaries’ best interests,

immediate revenue is not the only consideration.

II. FIDUCIARY DUTIES OF THE LAND COMMISSIONER

{100} New Mexico Constitution Article XIII, Section 2 delegates to the commissioner of

public lands the responsibility to “select, locate, classify and have the direction, control, care

and disposition of all public lands, under the provisions of the acts of congress relating
6

New Mexico Constitution Article XXIV, Section 1 reserves unto the Legislature the

authority to specify the terms and conditions of leases and contracts reserving a royalty to

the State from minerals, geothermal steam, and waters on lands confirmed to the State by the

act of Congress of June 20, 1910 (the Enabling Act).

35

thereto and such regulations as may be provided by law.”6

 To carry out these constitutional

responsibilities, the Legislature empowered the Commissioner to “make rules and

regulations for the control, management, disposition, lease and sale of state lands.” NMSA

1978, § 19-1-2 (1953). See also State ex rel. Otto v. Field, 31 N.M. 120, 133, 241 P. 1027,

1032 (1925) (“The commissioner was given ample power to make rules and regulations ‘for

the control, management, disposition, lease and sale of state lands.’”). On August 5, 1992,

the Land Commissioner adopted State Land Office Rule 21, which specifically addresses

land exchanges. 19.2.21 NMAC (recodified 12/13/02). The Commissioner is also

authorized by statute to “execute and authenticate for the state all deeds, leases, contracts or

other instruments affecting” state lands. Section 19-1-2.

{101} The New Mexico Enabling Act declares that all lands granted to the State of New

Mexico are to be held in trust. 36 Stat. 557, Sec. 10 (1910). “[T]he emergence of the trust

concept was originally initiated by the states,” and Congress influenced by these practices,

“incorporated trust language into the last enabling act that created the states of New Mexico

and Arizona.” Sean E. O’Day, School Trust Lands: The Land Manager’s Dilemma Between

Educational Funding and Environmental Conservation, a Hobson’s Choice?, 8 N.Y.U.

Envtl. L. J. 163, 184 (1999) (footnotes omitted). The trust concept arose because although

some trust land was lost due to incompetence or corruption, most of the land was lost

because states regularly chose to rapidly sell the lands for the purpose of funding schools.

Sally K. Fairfax, et al., School Trust Lands: A Fresh Look at Conventional Wisdom, 22

Envtl. L. 797, 807 (1992). However, states began to recognize that liquidating trust lands

would make sustaining a continuing source of funding difficult. O’Day, supra, at 182. As

a result, the trend in the states shifted from dissipating the trust lands they had been granted

by the federal government to retaining those lands. Id. at 181.

One consequence of this gradual and implicit evolution toward land

retention is that the states continue to have a choice regarding whether to sell

or retain the lands. Even today, like the federal government, the states

continue to engage in land sales and exchanges. Hence, the shift to retention

does not imply that no state trust lands will ever be sold, but rather that the

presumption is in favor of retaining rather than disposing of the lands.

Fairfax, supra, at 824 & 824 n.93 (footnotes omitted) (“State trust land managers tend to

maintain a portfolio of lands for investment and management purposes. . . . All states except

California engage in land exchanges to block in their scattered sections. Oregon and Arizona

have moved particularly effectively in this direction.”).
36

{102} New Mexico has interpreted the trust language in the Enabling Act as creating a

charitable trust with the beneficiaries comprised of the citizens of New Mexico. Forest

Guardians v. Powell, 2001-NMCA-028, ¶¶ 9-10, 130 N.M. 368, 24 P.3d 803. However, the

Land Commissioner’s undivided loyalty is to the designated beneficiaries and not the State

as a whole. State ex rel. Shepard v. Mechem, 56 N.M. 762, 770, 250 P.2d 897, 902 (1952)

(funds from lands granted by the Enabling Act may not be used to defray general

government expenses). In Ervien v. United States, 251 U.S. 41, 48 (1919), the United States

Supreme Court held that the New Mexico Land Commissioner could not expend money

derived from the sale of trust lands to promote the state. The Court reasoned that “[t]here

is in the Enabling Act a specific enumeration of the purposes for which the lands were

granted and the enumeration is necessarily exclusive of any other purpose.” Id. at 47; see

also Lassen v. Arizona ex rel. Arizona Highway Dep’t, 385 U.S. 458, 468 (1967) (“the

purposes of Congress require that the Act’s designated beneficiaries ‘derive the full benefit’

of the grant” (citation and footnote omitted)); Cnty. of Skamania v. State, 685 P.2d 576, 580

(Wash. 1984) (en banc) (“A trustee must act with undivided loyalty to the trust beneficiaries,

to the exclusion of all other interests.”). The beneficiaries of the trust lands at issue are

identified as the public schools in New Mexico, New Mexico State University, Las Vegas

Medical Center, New Mexico Military Institute, New Mexico Tech, New Mexico School for

the Deaf, the State Penitentiary, Miners’ Colfax Medical Center, the School for the Blind,

and charitable and penal reform.

{103} The Commissioner is subject to the same fiduciary obligations as any private trustee.

Cnty. of Skamania, 685 P.2d at 580. “All powers of trusteeship are held in the trustee’s

fiduciary capacity and must be exercised in good faith and to serve the interests of the

beneficiaries.” Restatement (Third) of Trusts § 86, cmt. b (2007). A trustee’s duties include

the protection and management of the trust property to provide returns or other benefits to

the trust, id. § 76; duty of prudence, id. § 77; and loyalty, id. § 78. To carry out these duties,

the Commissioner must decide whether it is better for the trust beneficiary to sell the lands

and invest the receipts or retain and manage the lands. When the Commissioner retains and

manages trust lands, he must also be concerned about the allocation of personnel and

management resources to make the land productive, maintain fences and roads, prevent

overgrazing, control soil erosion, minimize trespass damage and the risk of fires, and

enhance wildlife habitat, among other duties. The benefit to the trust is maximizing

revenues and profits while minimizing the costs incurred to manage the property.

Accordingly, the Commissioner should have the flexibility to manage the land in a manner

that enhances the opportunity for the largest return consistent with the beneficiaries’

objectives. The objectives of the beneficiaries can hardly be said to be the consumption of

the entire trust corpus. 

{104} The flexibility required to manage the land necessarily calls for the exercise of

discretion consistent with the terms and purpose of the trust or as required by the exercise

of the trustee’s fiduciary duties. Id. § 87. A court should not interfere with a trustee’s

exercise of a discretionary power when that exercise is reasonable and consistent with the

trust purposes and the trustee’s fiduciary duties. Id. The purpose of the Enabling Act is to
37

prevent the sale of land at unreasonably low prices. Lassen, 385 U.S. at 464. Indeed, written

into Section 10 of the Enabling Act is the requirement that no sale or other disposal of trust

property be made for a consideration less than the true appraised value of the trust property.

Id. Thus, one of the express purposes of the Enabling Act is to obtain the fair market value

of the property being sold. Branson Sch. Dist. RE-82 v. Romer, 161 F.3d 619, 637 (10th Cir.

1998).

{105} We have held that the Land Commissioner has broad discretion to decide the policy

question of how he or she will offer trust lands for sale and the quantity of land to sell.

Stovall v. Vesely, 38 N.M. 415, 418-19, 34 P.2d 862, 864-65 (1934) (citing Field, 31 N.M.

at 149-50, 241 P. at 1039).

“It seems to us that this language is in accord with our view that, under the

Enabling Act, Constitution, and statutes of New Mexico, the commissioner

may sell or hold the state lands as his judgment and discretion may dictate,

and that he may exercise ‘entire discretion as to the time of selling these

lands and the extent to which they should be sold,’ and that no one has the

right to compel the commissioner to sell the lands in its [sic] entirety or

otherwise, and that, if he elects to sell the land otherwise than in its entirety,

he is within his jurisdiction to do so. To hold otherwise would lead to an

absurd result. * * * As we have seen, the commissioner was given almost

unlimited power with respect to the public lands owned by the state ‘except

as may be otherwise specifically provided by law.’ * * * Nowhere in the

statute is any provision made for any supervisory control over the acts of the

commissioner excepting in the case of contest concerning lands when an

appeal may be taken from the decision of the commissioner to the district

court. He is responsible alone to the electorate for any lack of proper

business capacity or any misdoings in office.”

Id. at 419, 34 P.2d at 864-65 (quoting Field, 31 N.M. at 150-56, 241 P. at 1039-41).

{106} The Field Court’s interpretation of the broad discretion enjoyed by the Commissioner

is consistent with that of other jurisdictions. See Campana v. Arizona State Land Dep’t, 860

P.2d 1341, 1344 (Ariz. Ct. App. 1993) (land commissioner can establish the terms of sale

that are in the trust’s best interests and has discretion as to how to structure the proposed

sale); Pike v. State Bd. of Land Comm’rs, 113 P. 447, 454-55 (Idaho 1911) (commissioner

did not abuse discretion in advertising for auction 24,000 acres of land without allowing bids

for smaller parcels); Big Island Small Ranchers Ass’n v. State, 588 P.2d 430, 437 (Haw.

1978) (commissioner did not abuse his discretion by auctioning 42,000 acres of land at one

time). In addition, when a power is granted by statute, everything necessary to carry out the

power will be implied. Kennecott Copper Corp. v. Emp’t Sec. Comm’n, 78 N.M. 398, 402,

432 P.2d 109, 113 (1967). This Court has held that the general power granted to the Land

Commissioner should not be limited by implication unless its exercise would interfere with,

frustrate, or to some extent defeat the purpose for which the power was granted. Field, 31
38

N.M. at 154, 241 P. at 1041 (internal quotation marks and citation omitted).

III. ALL PARTIES AND AMICI AGREE THAT THE ENABLING ACT DOES

NOT EXPRESSLY PRECLUDE LAND EXCHANGES

{107} Section 10 of the Enabling Act does impose upon the Commissioner certain nondiscretionary obligations. The trust lands must be appraised at their true value, the money

or other things of value obtained from the disposition of the lands must be used for specified

purposes, and the consideration received must at least equal the true appraised value of the

trust lands. Section 10 also imposes certain duties on the Commissioner with respect to the

sale or lease of trust lands. The lands must be sold at a public auction to the highest and best

bidder, with specific requirements for public notice of the auction. There must also be a true

value appraisal of the lands and the lands cannot be sold for less than the appraised value or

the minimum price fixed in the Enabling Act. 36 Stat. 557, § 10 (1910). However, none of

the restrictions in the Enabling Act expressly or implicitly forbid the Commissioner or the

State from exchanging land. Indeed, the parties to this case and Amici do not contend that

the Enabling Act imposes a clear and indisputable duty on the State not to exchange trust

lands.

{108} On the contrary, the Attorney General himself states that “[n]either the Enabling Act

nor other authorities expressly provide for or prohibit the acceptance of land as consideration

in a sale of State Trust Lands.” In fact, the Attorney General issued two competing opinions

on this subject, one in 1988 suggesting that a land exchange was not permissible, and a

second one overruling that opinion in 1991, making it clear that land exchanges are

permissible. In his 1991 opinion, the Attorney General stated “[t]he authority of the

Commissioner to ‘dispose’ of public lands granted by the New Mexico Constitution and,

with restrictions, by the Enabling Act includes the power to exchange public lands.” N.M.

Att’y Gen. Op. 91-15 (1991), overruling N.M. Att’y Gen. Op. 88-35 (1988). The Attorney

General conceded as much during oral argument. He was asked, “Are you saying that the

Commissioner cannot exchange for land, period?” His response was an unequivocal “No,

absolutely not.” Expanding on the discussion, the Attorney General stated “Our position is

that there’s a limited, narrow authority to do land exchanges under existing law, and that

authority exists in those cases where you can hold a meaningful public auction.” Regarding

whether the current Attorney General agreed with the Attorney General who wrote the 1991

opinion, during oral argument the present Attorney General said that he “fundamentally

agreed with the conclusions of that opinion.” The Attorney General also did not challenge

the Commissioner’s authority to accept public or private land in exchange for trust lands.

{109} Amicus Curiae New Mexico School for the Blind, relying on the Enabling Act, the

New Mexico Constitution, and New Mexico case law, argues that exchanges are clearly

permitted. Amicus Curiae University of New Mexico, relying on the Enabling Act and

standard rules of statutory construction, argues that the plain language of the Enabling Act

authorizes land exchanges. Amicus Curiae Easter Seals and Union Pacific Railroad

Company also conclude that the Enabling Act does not forbid land exchanges. Amicus
39

Curiae New Mexico Wildlife Federation and the National Wildlife Federation do not argue

that the Enabling Act clearly and indisputably forbids land exchanges; they simply urge this

Court not to address the legality of land exchanges between the Commissioner and state or

federal governmental entities. This suggested approach is not helpful because the Enabling

Act does not distinguish between the disposition of trust lands to private or public parties.

The only reference to the exchange of lands from the federal government is in the last

paragraph of Section 10, where an exchange of state land for consideration of less than or

equal to the appraised value of the state land is permissible. This would imply that other

land exchanges are permissible so long as they are for consideration equal to or greater than

the appraised value of the state land.

IV. THE ENABLING ACT ALLOWS LAND EXCHANGES

{110} However, there is other language in Section 10 that can reasonably be interpreted to

allow land exchanges. The second paragraph of Section 10 provides, in part, that

[d]isposition of any of said lands, or of any money or thing of value directly

or indirectly derived therefrom, for any object other than that for which such

particular lands, or the lands from which such money or thing of value shall

have been derived, were granted or confirmed, or in any manner contrary to

the provisions of this act, shall be deemed a breach of trust.

(Emphasis added.) A “thing of value” derived from the disposition of land could quite

clearly encompass land received in consideration for the disposition of the trust lands. The

inclusion of money in the sentence also implies that consideration other than money may be

accepted in the disposition of land.

{111} This last point is corroborated in the fourth paragraph of Section 10, which reads in

part: “All lands, leaseholds, timber and other products of land before being offered shall be

appraised at their true value, and no sale or other disposal thereof shall be made for a

consideration less than the value so ascertained.” Two observations can be made about this

language. First, the language pertains to the “sale or other disposal” of lands, leaseholds,

timber and other products. Second, the language refers to “consideration,” not just money.

In Field, 31 N.M. at 144, 241 P. at 1037, this Court acknowledged the obvious--the

expression “dispose of” is not synonymous with the word “sell.”

It will be noted under the provisions of our Constitution the lands

may be held or disposed of. In the language of the Supreme Court of the

United States . . . . The expression “to dispose of” is very broad, and signifies

more than “to sell.” Selling is but one mode of disposing of property. . . .

And again, it is said that, when a contract respecting property contains an

agreement to be performed by the owner of it when he shall “dispose of” or

“sell” it, it is obvious that the words “dispose of” are not synonymous with

the word “sell”; and their meaning must be determined by considering the
40

remainder of the contract.

Id. (internal quotation marks and citations omitted).

{112} Although the majority concludes that the phrase “disposal thereof” refers to

“leasehold,” Maj. Op. ¶ 38, the seventh paragraph of Section 10 suggests that the

Commissioner may do more than sell or lease the land. The seventh paragraph reads, in

pertinent part: “Every sale, lease, conveyance or contract of or concerning any of the lands

hereby granted or confirmed, or the use thereof or the natural products thereof, not made in

substantial conformity with the provisions of this act shall be null and void.” (Emphasis

added.) If the Commissioner were limited to selling or leasing trust property, then why

would Congress refer to other conveyances or contracts concerning the trust properties?

Why would the Legislature mandate the Commissioner to “make rules and regulations for

the control, management, disposition, lease and sale of state lands” and authorize the

Commissioner to “execute and authenticate for the state all deeds, leases, contracts or other

instruments affecting such lands”? Section 19-1-2 (emphasis added). Why would the New

Mexico Constitution specify that the Commissioner “shall select, locate, classify and have

the direction, control, care and disposition of all public lands”? N.M. Const. art. XIII, § 2.

We do not interpret statutes in a way that renders language superfluous. Lion’s Gate Water

v. D’Antonio, 2009-NMSC-057, ¶ 29, 147 N.M. 523, 226 P.3d 622.

V. THE COMMISSIONER’S PUBLIC NOTICE AND PUBLIC AUCTION

REQUIREMENTS FOR A LAND EXCHANGE SUBSTANTIALLY

CONFORM WITH THE PROVISIONS OF THE ENABLING ACT

{113} I am of the opinion that the Enabling Act may be reasonably construed to allow land

exchanges, provided that (1) the exchange is for land with a value at least equal to the value

of the trust lands, and (2) the exchange is consistent with the best interests of the trust

beneficiaries. I am also of the opinion that the exchange may take place without a public

auction, since the third paragraph of Section 10 reads “lands shall not be sold or leased . . .

to the highest and best bidder at a public auction,” not “lands shall not be sold, leased or

otherwise disposed of . . . to the highest and best bidder at a public auction.” Nevertheless,

the Commissioner’s rules pertaining to land exchanges closely follow the sale requirements

in the Enabling Act. Specifically, the rules require an appraisal of the true value of the lands

proposed for exchange and public notice, and the public at large is invited to submit

competing proposals. 19.2.21.8(C) NMAC; 19.2.21.9(D) NMAC. A competitive selection

process for land exchanges is required. 19.2.21.2 NMAC.

{114} The specific questions raised by the Attorney General in his petition for writ of

mandamus are whether the subject land exchanges comply with the public auction

requirement when the Commissioner required bids composed of land with a value equal to

the true fair market value of the trust lands and also required bidders to bid on all of the trust

lands being offered. The questions raised by the Attorney General are answered by Field

and Vesely. In those cases, we made it clear that “no one has the right to compel the
41

commissioner to sell the lands in its [sic] entirety or otherwise, and that, if he elects to sell

the land otherwise than in its entirety, he is within his jurisdiction to do so.” Field, 31 N.M.

at 151, 241 P. at 1039; Stovall, 38 N.M. at 418-19, 34 P.2d at 864-65. Just as the

Commissioner may decide when to sell or how much land to sell, he or she is the one to

decide the terms and conditions that would be in the best interests of the trust beneficiaries.

[I]t may not be doubted that the Legislature of 1912, in creating the state land

office, intended that the commissioner should exercise the power theretofore

reposed in the commissioner of public lands to use his discretion in making

deeds, contracts, and grants upon such terms and conditions as he may deem

for the best interests of the state.

Field, 31 N.M. at 164, 241 P. at 1044.

{115} In this case, the Commissioner offered a specified quantity of trust lands for land

with a value at least equal to the true appraised value of the trust lands. However, a bidder

was not precluded from offering a cash bonus. I fail to understand why we would yield to

the Attorney General’s demand when it is the Land Commissioner who has the fiduciary

duty regarding our trust lands. The Attorney General seeks to protect the best interests of

the bidders, not the best interests of the trust beneficiaries.

{116} The majority raise concerns in addition to those expressed by the Attorney General.

The majority conclude that it is not a public auction if the Commissioner has pre-public

auction discussions with a bidder and the Commissioner is limited to accepting the greatest

financial return when deciding what is the “highest and best bid.” Instead of analyzing the

Commissioner’s duties through the lens of his fiduciary responsibilities to the trust

beneficiaries, the majority analyze his responsibilities as if he or she were simply an

auctioneer.

{117} When scrutinized through the lens of the Commissioner’s fiduciary obligations, the

Commissioner has discretion to enter into pre-auction discussions and to determine which

is the highest and best bid. The Commissioner has established a detailed procedure for land

exchanges in Rule 19.2.21.8(A) NMAC with the “best interests of the trust” the watchword.

The Commissioner may have “preliminary informal discussions or other preliminary

communications with potential exchange applicants prior to any exchange application or

exchange proposal being submitted and prior to any publication soliciting exchange

proposals.” 19.2.21.9(A) NMAC. Only after an application is filed and “the commissioner

determines that the proposed exchange appears to offer sufficient benefit to the trust and an

advertisement soliciting proposals for the exchange has not already been published, the

commissioner shall cause an advertisement soliciting further exchange proposals to be

published.” 19.2.21.9(B)(6) NMAC. Within a reasonable time after the published closing

date, the Commissioner “may select the proposal or proposals he determines are the highest

and best, that is, the proposal or proposals that he believes will be most beneficial to the trust

in accordance with the standards set forth in Subsections A and C of 19.2.21.8 NMAC
42

above, and reject the rest.” 19.2.21.10(A) NMAC. He is not obligated to accept the

proposal of the party who initially applied for the land exchange. Instead, the initial land

exchange proposal is what informs the Commissioner regarding the minimum standards for

the public auction. In the final analysis, the Commissioner may decide that it is not in the

best interests of the trust beneficiaries to accept any bid, in which case he may reject all bids.

19.2.21.10(A) NMAC.

{118} The majority has declared this procedure invalid. Maj. Op. ¶ 70. I am more

persuaded by the following analysis of the Hawai’i Territorial Supreme Court in Fasi v.

King, 41 Haw. 461, 1956 WL 10320 (1956).

So, in this case, a situation is presented where a prospective purchaser

states to the commissioner that it desires to purchase a parcel of land which

in location and area is suited for a particular type of use that it is

contemplating and that it is willing to make improvements thereon of

specified minimum cost. The commissioner determines that the proposal is

in the interest of the development of the area in which the land is located. She

makes a decision to offer the land for sale. The board of public lands agrees.

The decision is not that the sale be made to this prospective purchaser. The

decision is that here is a proposal for improvement which is in the interest

of the development of the area; here is a prospective purchaser who is

willing to meet the minimum standard of improvement which is deemed

desirable by the commissioner and the board; there may be other prospective

purchasers who may be willing to exceed that standard; so let the Territory

offer the land for sale with conditions to assure that at least that minimum

standard will be met.

Id. at 468 (emphasis added). Pre-auction discussions will assist the Commissioner in

determining the minimum standards that will help him or her develop new and profitable

strategies that are consistent with enhancing the trust corpus and honoring the best interests

of the trust beneficiaries. The public auction itself will permit the public to exceed the

minimum standards, thus giving rise to the highest and best bid.

{119} In this case, the Commissioner asserts that the land exchange will increase the value

of the trust corpus by $13,000,000 and make management of the land more efficient and

economical. Advertising these minimum standards seems to me to be consistent with the

Commissioner’s fiduciary obligations. Certainly other minimum standards will shrink the

universe of minimum bidders, yet we would not declare such minimum standards to be

invalid. For example, in leasing lands for grazing, the Commissioner might insist on the

bidder having specified minimum levels of competence, such as range management

experience or education in order to ensure a level of competence that will help protect the

land from overgrazing, soil erosion, damage to streams, and other damage. These

management strategies are better left to the Commissioner’s discretion. His position is not
43

apolitical. Because he is an elected official, the pressures of the general public may very

well influence his management strategies. However, we should not interfere with his

discretion when the exercise of that discretion is proven to be in the trust beneficiaries’ best

interests.

{120} With respect to the highest and best bid, immediate revenue is not the sole

consideration in determining the trust beneficiaries’ best interests. Campana, 860 P.2d at

1344. The requirement of a highest and best bid is not for the bidders’ benefit; it is for the

benefit of the trust beneficiaries. Bancamerica-Blair Corp. v. State Highway Comm’n, 95

S.W.2d 1068, 1070-71 (Ky. Ct. App. 1936), superseded by statute on other grounds as

stated in Pendleton Bros. Vending, Inc. v. Commonwealth Finance & Admin. Cabinet, 758

S.W.2d 24 (Ky. 1988). However, because the consideration for the land is not limited to

money, the Commissioner must exercise judgment to determine whether the bids would

advance the interests of the trust and its beneficiaries. See Brown v. City of Phoenix, 272

P.2d 358, 363-64 (Ariz. 1954). As minimum security to the trust beneficiaries, the Enabling

Act requires that the trust lands be appraised at their true value, and the consideration

received must at least equal that appraised value. Enabling Act § 10. If in addition to

obtaining consideration with at least equal the true appraised value of the trust lands the

Commissioner is able to reduce the expense of land management and prevent the destruction

of the trust property, one cannot contend that the Commissioner has breached his fiduciary

duty. In addition, the concerns expressed by Congress when enacting the Enabling Act will

have been allayed, since the land will not have been disposed of for less than its fair value.

VI. VOTER REJECTION OF A CONSTITUTIONAL AMENDMENT DOES NOT

DEFINE THE STATUS QUO

{121} The majority finds significant to its analysis the 1990 voter rejection of an

amendment to the Enabling Act. Maj. Op. ¶ 9. The proposed amendment sought to “clarify

the authority of the Commissioner of Public Lands to exchange lands under his control.”

The fact that the electorate rejected the amendment does not define the status quo; we must

still interpret existing law. Law is not made by defeating bills or constitutional amendments.

State ex rel Udall v. Pub. Employees Ret. Bd., 118 N.M. 507, 512, 882 P.2d 548, 553 (Ct.

App. 1994), rev’d on other grounds, 120 N.M. 786, 907 P.2d 190 (1995). Rejection of

legislation does not offer any insight into the meaning of existing law. Red Lion Broad. Co.

v. FCC, 395 U.S. 367, 381 n.11 (1969) (“unsuccessful attempts at legislation are not the best

of guides to legislative intent”); Ingersoll v. Palmer, 743 P.2d 1299, 1318 (Cal. 1987) (“We

can rarely determine from the failure of the Legislature to pass a particular bill what the

intent of the Legislature is with respect to existing law.”); State ex rel. Douglas v. Beermann,

347 N.W.2d 297, 305 (Neb. 1984). I am not persuaded that the popular vote is significant

to the analysis in this case.

{122} History teaches us that the rejection of an amendment does not define the limits of

the law. For example, the Child Labor Constitutional Amendment, which would have

authorized Congress to limit, regulate, and prohibit the labor of persons under eighteen years
44

of age, was never ratified. Yet the Fair Labor Standards Act has provisions designed to

protect the educational opportunities of youth, prohibit their employment in jobs that are

detrimental to their health and safety, and restrict the hours that youth under sixteen years

of age can work. Fair Labor Standards Act of 1938, 29 U.S.C. § 212 (1974). The

constitutionality of the Fair Labor Standards Act has been upheld. United States v. Darby,

312 U.S. 100 (1941). The Equal Rights Amendment, which provided that “[e]quality of

rights under the law shall not be denied or abridged by the United States or by any State on

account of sex,” was never ratified. Yet the Civil Rights Act of 1964 forbids discrimination

on account of gender.

{123} Finally, if indeed the 1990 popular vote rejecting amendment of the Enabling Act is

as significant as the majority suggests, then why has the majority declined to follow the will

of the people during that same election when they declined to validate, ratify, and confirm

all exchanges completed by the Land Commissioner before January 1, 1990? If I were

persuaded that the Commissioner has a clear and indisputable duty not to engage in land

exchanges, I would enforce the Enabling Act as written and declare the land exchanges void.

I cannot agree that this Court has the authority to apply its holding prospectively when the

Enabling Act itself provides that “[e]very sale, lease, conveyance or contract of or

concerning any of the lands hereby granted or confirmed . . . not made in substantial

conformity with the provisions of this act shall be null and void.” Enabling Act § 10.

{124} For the foregoing reasons, I respectfully dissent.

______________________________________

EDWARD L. CHÁVEZ, Justice

I CONCUR:

______________________________________

CHARLES W. DANIELS, Chief Justice

Topic Index for State of N.M. ex rel. King v. Lyons, Docket No. 32,197

AE APPEAL AND ERROR

AE-AJ Appellate Jurisdiction

CP CIVIL PROCEDURE

CP-QL Questions of Law and Questions of Fact

CP-RT Retroactivity

CP-WR Writ of Mandamus

CT CONSTITUTIONAL LAW

CT-AM Amendment to Constitution
45

CT-CG Constitutional Law, General

CT-NM New Mexico Constitution, General

GV GOVERNMENT

GV-LU Land Use

GV-PF Public Funds

GV-PL Public Lands

GV-SA State Agencies

JD JURISDICTION

JD-AJ Appellate Jurisdiction

JD-SC Supreme Court

PR PROPERTY

PR-LG Land Grants

PR-PU Public Lands

RE REMEDIES

RE-EO Extraordinary Writs

RE-EC Exclusive Remedy

RE-WM Writ of Mandamus

ST STATUTES

ST-IP Interpretation

ST-LI Legislative Intent

ST-RC Rules of Construction