STATE OF NEW MEXICO
OFFICE OF THE ATTORNEY GENERAL
HECTOR H. BALDERAS
ATTORNEY GENERAL
December 4, 2020
Edward Vigil, Chair
Soil and Water Conservation Commission
P.O. Box 30005, MSC 3189
Las Cruces, NM 88003
Email: rio@tularosa.net
Re: Opinion Request – Recent Amendments to the Soil and Water Conservation
District Act
Dear Mr. Vigil:
The Soil and Water Conservation Commission requested our opinion regarding statutory
changes made in 2018 and 2019 to the Soil and Water Conservation District Act, NMSA
1978, Sections 73-20-25 to -48 (1965, as amended through 2019) (hereinafter the “Act”).
1
In particular, we were asked:
1. Do the recent amendments remove the ten-year limit applicable to mill levies that
were passed by voters under the prior statutory language?
2. If a soil and water conservation district holds a previously-existing mill levy
covered by the ten-year limit, will it continue to keep this prior mill levy if voters
reject the passage of a new mill levy?
3. If voters approve an increase of an existing mill levy or the creation of a new levy,
would the original mill levy remain subject to the ten-year limitation?
4. Is it the responsibility of county clerks to ensure that candidates for local soil and
water conservation district boards satisfy the applicable statutory criteria? And,
relatedly, is a county clerk responsible for apprising a would-be candidate for a
local soil and water conservation district board of the applicable statutory criteria?
As discussed in detail below, we conclude:
1
We are also in receipt of a letter from the Valencia Soil and Water Conservation District, which largely
posed to us the same questions.
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Edward Vigil, Chair
December 4, 2020
Page 2
1. The 2018 and 2019 amendments to the Act do not affect the ten-year limit
applicable to mill levies approved by soil and water conservation district voters
under the prior law.
2. An existing mill levy subject to the ten-year limit will remain in effect if voters
reject the adoption of a new mill levy under the recent amendments to the Act.
3. If voters approve an increase in the amount of a mill levy adopted before the recent
amendments or approve a new levy under the amended provisions, the earlier mill
levy will remain subject to the ten-year limit.
4. A county clerk’s authority to ensure that candidates for a soil and water
conservation district board are qualified is limited to determining whether they are
registered to vote in the appropriate area. County clerks have no legal obligation to
inform would-be candidates of the qualifications for holding positions on a soil and
water conservation board.
Background
New Mexico’s various soil and water conservation districts are intended “to conserve and
develop beneficially the soil, water and other natural resources of the state.” NMSA 1978,
§ 73-20-26. Districts are created by landowners within given geographic areas, who may
petition the Soil and Water Conservation Commission (the “Commission”) for approval.
See generally § 73-20-33(A) (setting forth the requirements for petitions to the
Commission). The creation of such a district is subject to a local referendum of all eligible
voters. See § 73-20-34 (providing that, “in the event that approval of the proposed district
is not carried by a majority of votes cast in a referendum, the commission shall deny the
petition and shall enter and record its order”).
Individual soil and water conservation districts are authorized by the Act to carry out a
variety of functions. This includes conducting research, developing conservation plans,
publishing suggested “preventive and control measures relating to resource conservation
and development,” assisting private landowners or governmental agencies in executing
conservation
plans,
and
administering
conservation
projects
initiated
by
other
governmental agencies. Section 73-20-44. In order to fulfill these various functions, soil
and water conservation districts are explicitly authorized to “borrow money and otherwise
contract indebtedness,” which may be secured by, among other things, district revenues,
including revenues from mill levies. Section 73-20-45(D); see also § 73-20-46 (setting
forth requirements for district-wide property assessments).
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Edward Vigil, Chair
December 4, 2020
Page 3
Mill Levies
In two successive legislative sessions, the legislature made significant changes to the Act
as it relates to the ability of soil and water conservation districts to issue mill levies. Until
July 1, 2018, the relevant language of the Act read as follows:
In the event a district is unable to meet or bear the expense of the duties
imposed upon it by the Soil and Water Conservation District Act, the
supervisors may adopt a resolution that, to be effective, shall be approved
by referendum in the district and that shall provide for an annual levy for a
stated period of up to ten years in a stated amount not exceeding one dollar
($1.00) on each one thousand dollars ($1,000) of net taxable value, as that
term is defined in the Property Tax Code, of real property within the district,
except that real property within incorporated cities and towns in the district
may be excluded.
Section 73-20-46(A) (2009). This provision limited annual mill levies to one dollar per
each thousand dollars of net taxable value for a period stated in the referendum of up to ten
years.
In 2018, House Bill 98 significantly altered this language in the Act. See H.B. 98, 53rd
Leg., 2nd Sess. (N.M. 2018). As amended, and as it exists today, the relevant portion of
this statute states:
In the event a district is unable to meet or bear the expense of the duties
imposed upon it by the Soil and Water Conservation District Act, the
supervisors may adopt a resolution that, to be effective, shall be approved
by referendum in the district and that shall provide for an annual levy in a
stated amount not exceeding five dollars ($5.00) on each one thousand
dollars ($1,000) of net taxable value, as that term is defined in the Property
Tax Code [Articles 35 to 38 of Chapter 7 NMSA 1978], of real property
within the district, except that real property within incorporated cities and
towns in the district may be excluded.
Section 73-20-46(A) (2018). The 2018 amendment increased the maximum annual amount
of annual mill levies from one dollar to five dollars per each one thousand dollars of net
taxable value and removed the language limiting mill levies to a stated period of up to ten
years. The latter change means that the law no longer limits the duration of mill levies
approved by referendum.
2
Because many mill levies in existence at the time of the 2018
2
Although the 2018 amendment removed the ten-year limit on an approved mill levy, it did not affect the
requirement that a soil and water conservation district board, after the initial authorization is approved by
referendum, “adopt a resolution each following year authorizing the levy.” Section 73-20-46(A). In addition,
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Edward Vigil, Chair
December 4, 2020
Page 4
amendment (and now) had been approved with stated limits of up to ten years, the 2018
amendment created some ambiguity as to their legal status.
Possibly to address this ambiguity, the legislature revisited the Act again in 2019 and added
a new statutory provision addressing mill levies that were issued prior to the enactment of
the 2018 amendment. See H.B. 407, 54th Leg., 1st Sess. (N.M. 2019). This new provision
reads:
A levy approved by the voters of a district and authorized by the
commission pursuant to Section 73-20-46 NMSA 1978 prior to July 1, 2018
shall continue to be assessed pursuant to the laws in effect at the time the
levy was initially approved; provided that the aggregate of all levies in a
district approved prior to July 1, 2018 that continue in effect and any levies
in the same district approved on or after July 1, 2018 shall not exceed the
maximum allowable levy in a district pursuant to Subsection A of Section
73-20-46 NMSA 1978.
Section 73-20-46.1 (2019).
The plain language of Section 73-20-46.1 provides that the passage of an entirely new mill
levy would not affect the ten-year limit on mill levies approved under the law in effect
before July 1, 2018. Hence, mill levies approved and existing prior to July 1, 2018 remain
limited to a stated period of up to ten years. In addition, soil and water conservation districts
holding a mill levy that existed prior to July 1, 2018 would retain that same mill levy if the
district held a subsequent referendum and failed to approve a new mill levy or an increase
in its old levy. A district’s failure to approve a new or increased mill levy would not have
any bearing on the legal status of its previous levy, pursuant to Section 73-20-46 and
Section 73-20-46.1.
Similarly, the successful passage of a new or increased mill levy also would not affect the
ten-year limit on an existing mill levy. With respect to an increase in the amount of an older
mill levy that existed prior to July 1, 2018, these mill levies are, pursuant to Section 73-20-
46.1, governed almost entirely by the statute as it read at the time of their initial passage.
This means that such an older mill levy would remain subject to the ten-year limit after it
was increased and could only be increased up to “one dollar ($1.00) on each one thousand
dollars ($1,000) of net taxable value.” Section 73-20-46 (2009).
3
the amendment did not affect Section 73-20-46(G), which provides that, if a district board determines that
there will be sufficient funds for the operation of the district in a particular year, the board must adopt a
resolution decreasing or deleting the assessment for that year.
3
By this we mean that an older mill levy cannot be increased up to “five dollars ($5.00) on each one thousand
dollars ($1,000) of net taxable value” as Section 73-20-46 permits today. Because Section 73-20-46.1
provides that mill levies in existence on July 1, 2018 continue to be governed by the statute in place at the
time of their passage, this means both that they retain their older ten-year duration limits and that they cannot
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Edward Vigil, Chair
December 4, 2020
Page 5
We emphasize that older mill levies are not exempt from the five-dollar allowable levy
maximum per district set by Section 73-20-46. See § 73-20-46.1 (providing that “the
aggregate of all levies in a district approved prior to July 1, 2018 that continue in effect
and any levies in the same district approved on or after July 1, 2018 shall not exceed the
maximum allowable levy in a district pursuant to Subsection A of Section 73-20-46 NMSA
1978”). Soil and water conservation districts cannot, pursuant to the Act, pass new mill
levies or increase the amount of already-existing mill levies without complying with this
statutory mandate.
Duties of County Clerks
Pursuant to the Act, soil and water conservation district boards are comprised of five
elected supervisors who must reside in the district. See § 73-20-37(A). Four of these elected
supervisors must be “landowners within the defined geographical area of their district.” Id.
The Act specifies that the final elected supervisor, designated as the supervisor-at large,
“may serve the district without landowner qualification.” Id. Elections for soil and water
conservation district supervisor positions are held in accordance with the Local Election
Act, NMSA 1978, Sections 1-22-1 to -19 (2018, as amended through 2019).
Based on the relevant provisions in both the Act and the Local Election Act, county clerks
have only limited authority to determine whether a candidate for a soil and water
conservation district board has satisfied the qualifications for office. In particular, while
county clerks are responsible for determining “whether a candidate filing a declaration of
candidacy is registered to vote within the area to be elected to represent,” they do not have
the authority under the Local Election Act to determine whether the candidate either
resided in the district or owned land within the geographical boundaries of the district.
Section 1-22-10(A).
4
Instead, any registered voter may file a legal challenge to the
qualifications of candidates in the appropriate district court. See § 1-22-10(B) (providing
that, “Any voter may challenge the candidacy of any person seeking election at the regular
local election for the reason that the person does not meet the requirements for the office
sought by filing a petition in the district court within seven days after the day for filing a
declaration of candidacy.”).
Finally, as to whether county clerks are obligated to inform prospective candidates for soil
and water conservation district boards of the qualifications for office and supply those
be increased beyond “one dollar ($1.00) on each one thousand dollars ($1,000) of net taxable value.” Section
73-20-46 (1965, amended 2009).
4
Section 1-22-10 provides that county clerks, as filing officers, “shall determine whether a candidate filing
a declaration of candidacy is registered to vote within the area to be elected to represent.” See also § 1-1-5.9
(defining the term “proper filing officer” as “for the purposes of filing: … declarations of candidacy and
candidate qualification documents by all other candidates, the county clerk of the county in which the
candidate resides”).
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
Edward Vigil, Chair
December 4, 2020
Page 6
qualifications to prospective candidates, we note that no such law exists. After diligent
search, we can find no provision of law obligating a county clerk to shoulder the general
burden of informing all prospective candidates for public office, including those for soil
and water conservation district boards, of the qualifications of the particular office the
candidate might seek.
Please note that we are providing this opinion and legal advice in the form of a letter that
is a public document, not subject to the attorney-client privilege. Therefore, we may
provide this letter to the public.
Sincerely,
John Kreienkamp
Assistant Attorney General
Enclosure
cc:
Valencia Soil and Water Conservation District Board of Supervisors
TELEPHONE: (505)490-4060 FAX: (505)490-4883 www.nmag.gov
MAILING ADDRESS: P.O. BOX 1508 - SANTA FE, NEW MEXICO 87504-1508
STREET ADDRESS: 408 GALISTEO STREET - SANTA FE, NEW MEXICO 87501
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.