IAL 031908.

• Case Date: March 19, 2008
• Court: New Mexico

New Mexico Attorney Gen eral Opinions 2008. IAL 031908. March 19, 2008IAL 031908Kelly O'Donnell, Chair Steve Landeene, Executive Director New Mexico Spaceport Authority 301 South Church St., Suite G Las Cruces, NM 88001 Re: Opinion Request - Spaceport District and the Power of Eminent DomainDear Dr. O'Donnell & Mr. Landeene: You have requested our opinion regarding whether a regional spaceport district created under the Regional Spaceport District Act, NMSA 1978, §§ 5-16-1 to 5-16-13 (2006), will have the power of eminent domain. Residents of Sierra County have expressed concern that once a spaceport district is formed, the district will have the power of eminent domain to take private property. Based upon our examination of the relevant New Mexico statutes, opinions and case law authorities, and on the information available to us at this time, we conclude that a regional spaceport district lacks a sufficiently explicit grant of the power of eminent domain and therefore does not have the power of eminent domain under New Mexico law. The New Mexico Constitution states that "private property shall not be taken or damaged for public use without just compensation." N.M. Const. art. II, § 20. The New Mexico Supreme Court has explained takings in the following manner:

Condemnation or eminent domain is the process by which the sovereign exercises the power to "take" private property for public purposes subject to the constitutional requirement that just compensation be paid to the owner ... the essence of condemnation is its involuntary, compulsory nature. See United Water New Mexico, Inc. v. New Mexico Public Utility Com'n, 121 N.M. 272, 910 P.2d 906 (1996).

The state may appropriate private property under the inherent power of eminent domain by legislative act. See State ex rel. Red River Valley Co. v. District Court, 39 N.M. 523, 51 P.2d 239 (1935). Also, "[t]here is no limitation on the right of the legislature to designate the agencies that shall exercise the power of eminent domain except as...