N.M. Admin. Code § 19.2.24.8

Current through Register Vol. 36, No. 1, January 14, 2025

Section 19.2.24.8 - GENERAL REQUIREMENTS

A.Avoidance of damage. Any persons engaged in activities on state trust lands are subject to the requirements of the Cultural Properties Act, the Cultural Properties Protection Act, and 19.2.24.13 NMAC. Persons shall not disturb, dislodge, damage, destroy, or remove any cultural properties on state trust lands. Any project on state trust lands that has the potential to directly or indirectly damage cultural properties is additionally subject to the requirements of Subsections B, C, D, and E of 19.2.24.8 NMAC.

B.Signed acknowledgment. Parties shall acknowledge, on a form prescribed by the commissioner, that they understand and agree to comply with applicable laws and rules pertaining to the protection of cultural properties on state trust lands.

C.ARMS inspection and survey. Prior to conducting surface disturbing activities, parties shall cause a permitted archaeologist to submit to the state land office an ARMS inspection of the entire area of potential effect. More detailed guidance regarding the submission process for ARMS inspection and surveys under this subpart will be provided in an instructional document to be published on the state land office's website and also will be provided to any party or other interested person upon request. The time when that submission is required is provided in Subsection E of this section. In the best interest of the trust, the commissioner, in the commissioner's discretion, may elect to provide the ARMS inspection for any particular portion of state trust land. The following subparagraphs describe the necessary steps to be taken after an ARMS inspection is conducted.

(1) If the ARMS inspection demonstrates that the entire area of potential effect has been surveyed, and that no cultural properties are located within the area of potential effect, then the party shall cause a permitted archaeologist to submit the ARMS inspection to the state land office, in which case the required archaeological review is complete.

(2) If the ARMS inspection or survey demonstrates that the entire area of potential effect has been surveyed, and cultural properties are identified within the area of potential effect, the party shall cause a permitted archaeologist to submit the most recent applicable survey(s) to the state land office. If a prior survey is submitted that is more than ten years old, the state land office will determine if the survey conforms to the requirements of 4.10.15 NMAC and if it does not, may require an updated survey. The party shall be subject to the requirements of Subsection D of this section.

(3) If the ARMS inspection demonstrates that the entire area of potential effect has not been surveyed, a complete archaeological survey must be conducted by a permitted archaeologist in accordance with the requirements of 4.10.15 NMAC and submitted to the state land office. The new survey need not include areas already subjected to acceptable surveys. The party shall be subject to the requirements of Subsection D of this section, if cultural properties are identified in the survey.

D.Compliance measures. For any application or project where any survey has identified cultural properties within the area of potential effect, the party shall cause a permitted archaeologist to develop and submit to the state land office compliance measures related to project siting, and avoidance and mitigation of damage to cultural properties; those compliance measures may be included within the survey that is submitted to the state land office on behalf of any party, or may be submitted separately. The state land office will review any applicable compliance measures, and determine if those measures are sufficient to protect or mitigate damages to the affected cultural properties, a review that may include consultation with the SHPO and shall include consultation with any impacted tribe. In the best interests of the trust, the state land office may require additional or different compliance measures as a condition to approval of the application or project. This review process will be completed within 60 calendar days of submission of an administratively complete submission (ARMS inspection or survey, and any applicable compliance measures), but that time period may be extended in the commissioner's discretion for up to an additional 60 calendar days as may be necessary to ensure appropriate review. Upon commissioner approval, the relevant leasing division shall include appropriate compliance measures in the relevant lease, easement, or other instrument, if applicable, consistent with applicable statutes and rules.

E.Timing of requirements. The undertakings required in Subsections A, B, and C of 19.2.24.8 NMAC are required at different points in time depending on the nature of the application or project, as follows:

(1)Leases, easements, or other instruments not requiring subsequent approval. For applications or projects where no review or approval is required after issuance of the applicable lease, easement, or other instrument: the acknowledgment specified in Subsection B of 19.2.24.8 NMAC, an ARMS inspection and survey specified in Subsection C of 19.2.24.8 NMAC, and any applicable compliance measures specified in Subsection D of 19.2.24.8 NMAC, are required at the time of submission of the application for the lease, easement, or other instrument, and in any event prior to commencement of surface-disturbing activities.

(2)Leases, easements, or other instruments requiring subsequent approval. For applications or projects where subsequent review by the commissioner is required after a lease, easement, or other instrument may be issued, and before project activities may take place: the acknowledgment specified in Subsection B of 19.2.24.8 NMAC is required at the time of submission of application or bid. The ARMS inspection or survey specified in Subsection C of 19.2.24.8 NMAC, and any applicable compliance measures specified in Subsection D of 19.2.24.8 NMAC, are required at the time of submission of the project plans or, if no project plans are required to be submitted, at least 60 calendar days prior to commencement of surface disturbing activities.

(3)Oil and gas leases. This subpart applies to oil and gas leases. The acknowledgment specified in Subsection B of 19.2.24.8 NMAC is required prior to issuance of a lease or any lease assignment. For all surface disturbing activities (whether under a new or existing lease or lease assignment), the description and location of the project, the ARMS inspection or survey specified in Subsection C of 19.2.24.8 NMAC, and any applicable compliance measures specified in Subsection D of 19.2.24.8 NMAC, must be received, reviewed, and approved by the state land office prior to any surface disturbing activity, along with the acknowledgment specified in Subsection B of 19.2.24.8 NMAC if one has not already been submitted by the party undertaking the surface disturbing activity for that particular lease. Upon authorization from the state land office, the party may commence the surface disturbing activity.

(4)Mining leases. This subpart applies to leases for mining as specified in Chapter 19, Articles 8-9 NMSA 1978, and 19.2.2, 19.2.3, 19.2.4, 19.2.5, 19.2.6, and 19.2.7 NMAC. The acknowledgment specified in Subsection B of 19.2.24.8 NMAC is required at the time of submission of an application or bid to lease. The ARMS inspection or survey specified in Subsection C of 19.2.24.8 NMAC and any applicable compliance measures specified in Subsection D of 19.2.24.8 NMAC, are required at the time of submission of an application for a mining permit with the mining and minerals division of the New Mexico energy, minerals, and natural resources department, or equivalent permitting agency, for leases that are subject to 19.2.2 and 19.2.6 NMAC; and prior to commencement of any surface disturbing activity for all other types of mineral leases.

F.Archaeological survey permits and notifications to survey. Individuals with valid archaeological survey permits issued by the New Mexico cultural properties review committee, as provided in 4.10.8 NMAC, are pre-approved to access state trust lands for the sole purpose of conducting archaeological surveys pursuant to this rule, without the need for a separate authorization from the commissioner. For other project purposes (that is, other than archaeological surveys), parties who are already authorized to access and occupy particular state trust lands by virtue of a lease or easement are not required to obtain separate authorization from the commissioner. All other persons needing access to state trust lands for other project purposes (that is, other than archaeological surveys) shall apply for a right of entry permit on a form prescribed by the commissioner, and the state land office will process such application on a timely basis. The state land office should be notified at least 15 calendar days before an archaeological survey is conducted, except for exigent situations, including but not limited to responses to spills or hazardous conditions, in which case the state land office should be notified as soon as possible and in any event prior to the survey.

N.M. Admin. Code § 19.2.24.8

Adopted by New Mexico Register, Volume XXXIII, Issue 18, September 27, 2022, eff. 12/1/2022