AGO IAL022806.

• Case Date: February 28, 2006
• Court: New Mexico

New Mexico Attorney General Opinions 2006. AGO IAL022806. February 28, 2006Secretary Rhonda G. Faught, P.E. Secretary, New Mexico Department of TransportationP.O. Box 1149 Santa Fe, New Mexico 87504-1149 Re: Proposed Joint Use Agreement with BNSF Railway Company.Dear Secretary Faught: By letter dated December 6, 2005, you called upon me to opine on the legal sufficiency of the Joint Use Agreement (Agreement) that the New Mexico Department of Transportation (NMDOT) and Burlington Northern Santa Fe Railway Company (BNSF) executed on or about December 5, 2005. Under NMSA 1978, Section 8-5-2 (D), as the State of New Mexico's Attorney General, I may give an opinion in writing upon a question of law submitted to me by an appointed state official. Moreover, under the terms of the Agreement, BNSF has required my opinion as to the Agreement's legal sufficiency under the laws of the State of New Mexico as a condition to closing. In performing my legal review, I express no opinion as to the economics or the merits of the Agreement. Nor do I express any view as to whether the Agreement is beneficial or detrimental to the interests of the State Of New Mexico. My legal opinion addresses only the legal sufficiency of the Agreement and is an expression of professional judgment and not a guarantee of a particular outcome. In the course of reviewing the Agreement, my senior staff and I have had extensive discussions with your outside counsel. As part of those discussions my staff and I reviewed the Agreement noted above and the correspondence and other materials referenced below. In the course of those discussions and reviews, I pointed out a number of changes that needed to be made to the Agreement including:

1. Deletion from the Agreement of the purchase of that portion of the rail line and equipment outside the State of New Mexico to be replaced by an option to purchase the property at a later date.

2. Recognition and acknowledgement in the Agreement that any release of liability in favor of BNSF Railway may apply only to unliquidated claims as provided by Article IV, Section 32 of the New Mexico Constitution and the laws of New Mexico.

3. Clarification in the Agreement that all arbitrations of disputes will be based upon New Mexico substantive law and will be subject to judicial scrutiny by a New Mexico court of competent jurisdiction.

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