N.M. Admin. Code § 19.2.10.9

Current through Register Vol. 35, No. 23, December 10, 2024

Section 19.2.10.9 - TRESPASS

A. Any use of trust lands for right of way or easement purposes prior to the grant of a right of way or easement as provided by this Part 10 shall constitute an unauthorized use of such lands and will be deemed a trespass. The use of trust lands for easement or right of way purposes, if based upon any approval by any means other than as provided for in this Part 10, will likewise be deemed a trespass. However, in extenuating circumstances and for good cause shown, the commissioner may, in the commissioner's discretion and upon written request, waive the trespass penalties set out below when the trespass consists of an inadvertent failure to obtain or renew an easement or right of way and that failure is promptly corrected when discovered.

B. Upon notification or determination that an unauthorized use exists, the commissioner shall initiate criminal or civil trespass sanctions, or both, against the unauthorized user; provided, however, that prior to the initiation of such action, the commissioner may attempt to remedy the trespass non-judicially by such means as the commissioner deems best including, but not limited to:

1) offering the unauthorized user the opportunity to terminate the unauthorized use, restore the lands to their condition prior to the unauthorized use, and pay the prorated fair market value of the unauthorized use through the date of termination; or,

2) offering to ratify the unauthorized use upon receipt of the required consideration plus the applicable trespass penalty set forth in Subsection D of 19.2.10.9 NMAC below. The commissioner shall not initiate or otherwise pursue criminal or civil trespass sanctions against an unauthorized user if that unauthorized user accepts and complies with any non-judicial remedy offered by the commissioner to remedy the unauthorized use.

C. All time limitations imposed upon an unauthorized user by the commissioner when offering non-judicial remedies shall be reasonable, but in no case shall any such limit be less than 10 days nor more than 60 days.

D.Trespass penalties: All trespass penalties are due in addition to the consideration due under 19.2.10.15 NMAC below.

(1) An unauthorized user must pay the following trespass penalty:

(a) for the first occurrence of unauthorized use, one hundred percent of the applicable fair market value;

(b) for the second occurrence, five hundred percent of the applicable fair market value;

(c) for the third occurrence, one thousand percent of the applicable fair market value;

(d) for the fourth and subsequent occurrences, one thousand percent of the applicable fair market value and the grant of easement or right of way is limited to a maximum five-year term at the applicable fair market value for a 35-year term;

(2) Any occurrence of trespass preceded by five years of non-occurrence by the party in trespass will be treated as a first occurrence.

(3) In the commissioner's sole discretion, applicable trespass penalties will be reduced by no more than fifty percent if the trespass is self-reported before the commissioner learns of it from any other source.

(4) The trespass penalties described above apply only to unauthorized uses that commence on or after February 28, 2002. The trespass penalty for an unauthorized use that commenced prior to that date is one hundred percent of the fair market value.

N.M. Admin. Code § 19.2.10.9

19.2.10.9 NMAC - Rp, 19.2.10.9 NMAC, 06/30/04, Amended by New Mexico Register, Volume XXX, Issue 11, June 11, 2019, eff. 6/11/2019