JICARILLA APACHE NATION, Plaintiff-Respondent, v. Arthur RODARTE, in his official capacity only, Rio Arriba County Assessor, Defendant-Petitioner.
No. 28,128.
Supreme Court of New Mexico.
Sept. 3, 2004.
2004-NMSC-035 | 103 P.3d 554 | 136 N.M. 630
Nordhaus, Haltom, Taylor, Taradash & Bladh, L.L.P., Daniel I.S.J. Rey-Bear, Stephen H. Greetham, Albuquerque, NM, for Respondent.
Javier R. Lopez, Santa Fe, NM, for Amicus Curiae New Mexico Taxation & Revenue Department.
Canepa & Vidal, P.A., Rae Ann Shanley, Timothy J. Vidal, Santa Fe, NM, for Amicus Curiae Rancho Del Oso Pardo, Inc.
OPINION
CHÁVEZ, Justice.
{1} Petitioner Arthur Rodarte, the Rio Arriba County Assessor acting in his official capacity only, appeals from a decision of the Court of Appeals which reversed the decision of the Rio Arriba County Valuation Protests Board (the Board). The Board had upheld Petitioner‘s property tax assessment which changed the classification of the bulk of the 32,075.80-acre property at the Lodge at Chama (the Lodge) from agricultural to “miscellaneous non-residential.” The change resulted in a nearly ten-fold increase in the Lodge‘s assessed value, from $2,199,378 to $21,301,191. At issue is whether Petitioner and the Board properly concluded: (1) that neither the Lodge‘s private elk herd nor the public herd is “livestock” under the property tax code for purposes of determining whether the property in question is agricultural, and (2) that the Lodge‘s conservation agreement with the federal government was either not a proper soil-conservation agreement to qualify as an agricultural use or not the primary use of their land. Finding that the Board properly relied on a reasonable determination of the Property Tax Division of the Department of Taxation and Revenue (the Division), we reverse the Court of Appeals and uphold the Board‘s decision.
I. Background
{2} The 32,075.80-acre Lodge is located near Chama, New Mexico, and until 1989 or 1990 was known as the “Chama Land and Cattle Company.” The Lodge bills itself as “one of the world‘s foremost outdoor recreational retreats.” Respondent Jicarilla Apache Nation purchased the Lodge in 1995. From at least 1996 through 1999, the proper
{3} Before the hearing, the parties resolved a number of the potential issues facing the Board by stipulation. The parties agreed to the classification and valuation of the fifteen-acre homesite: the four acres underlying the residential structures and lodge structure are valued at $10,000 per acre, and the remaining eleven acres are valued at $664 per acre. Additionally, the parties stipulated that twenty acres of the property are classified as irrigated land and valued at $150 per acre, and five-thousand acres on the western portion of the property are classified as grazing land and valued at $2.00 an acre. Finally, the parties stipulated that “[t]he only issue in controversy in this action is whether the remaining 27,040.80 acres at the Property should be classified and valued as agricultural land.”
{4} At the hearing, it was established that the 27,040.80 acres covers two types of land. First, the Lodge operates two 3,200-acre state-licensed game parks on which it maintains its private elk herd. These game preserves are each enclosed by an eight-foot-high fence. Respondent actively manages the private elk herd through a heavily regulated genetic improvement breeding program and irrigates the land to produce feed. The Lodge maintains an elk handling facility which allows year-round handling of up to 200 elk at a time for testing, tagging and other measurements, and feeds some of the elk from troughs. Second, the Lodge maintains the remaining land, the “uplands,” as a habitat for the wild public herd of elk that graze there.
{5} The uplands portion of the property is maintained consistent with a conservation plan entered into with the United States Department of Agriculture (the USDA) as part of its Environmental Quality Incentives Program (EQIP). The Lodge‘s stated purpose for entering into the agreement was to improve the elk habitat in order to improve “the production, quality, and health of wild elk there.” Under the agreement, the Lodge agreed to construct fences; to irrigate to minimize soil erosion and nutrient losses; to manage grazing to protect the soil resources; and to manage pasture and hayland to maintain enough soil cover. In return, the USDA agreed to share some of the costs. Respondent also manages its timber resources in the uplands in order to maximize the elk habitat.
{6} The Lodge maintains the private elk herds on the game parks so that it can sell big game hunting packages. These packages include food, lodging, and guide services, and can cost up to $13,000 per person. The Lodge also sells permits, which it has received from the state, for its customers to hunt the wild elk in the uplands area. Because the quality of the private herd of elk is better than that of the wild herd, the permits to hunt from the public herd are less expensive. Nearly all of the hunters who have this package take home the packaged meat from the animal and have the carcasses mounted. The Lodge also sold some of the elk to another farm in 1999, but most elk are “harvested” through these paid hunting packages.
{7} On these facts, the Board found that “the use of that property is primarily as a habitat for elk, [and] that all other uses,
{8} Respondent filed an appeal to the district court, which certified the case to the Court of Appeals as one involving a substantial public interest. See
II. Discussion
{9} Under the Property Tax Code, property is typically valued as “its market value as determined by application of the sales of comparable property, income or cost methods of valuation or any combination of these methods.”
{10} Under the same statute, “agricultural use” is defined as “the use of land for the production of plants, crops, trees, forest products, orchard crops, livestock, poultry or fish.”
{11} The Court of Appeals had previously discerned from
A. Statutory presumptions
{12} Under
{13} Subsequent to Black, however, the Legislature amended
Values of property for property taxation purposes determined by the department or the county assessor are presumed to be correct. Determinations of tax rates, allocations of net taxable values of property to governmental units and the computation and determination of property taxes made by the officer or agency responsible therefor under the Property Tax Code [Articles 35 to 38 of Chapter 7 NMSA 1978] are presumed to be correct.
1973 N.M. Laws ch. 258, § 46. Only the first sentence was quoted in Black.
{14} Subsequently, the Legislature amended
Values of property for property taxation purposes determined by the division or the county assessor are presumed to be correct. Determinations of tax rates, classification, allocations of net taxable values of property to governmental units and the computation and determination of property taxes made by the officer or agency responsible therefor under the Property Tax Code [Articles 35 to 38 of Chapter 7 NMSA 1978] are presumed to be correct.
1981 N.M. Laws ch. 37, § 67 (emphasis added). The only major substantive difference between these two sections is the addition of the word “classification” in the second sentence. The question whether property is entitled to the special valuation method in
{15} Furthermore, we conclude that the Board properly reconciled the competing presumptions found in
B. Income analysis
{16} In concluding that the property in question was not put to agricultural use, the Board relied in part on one of the Assessor‘s exhibits which contrasted the income the Lodge earned from elk hunting, big game parks, sport fishing, skeet-shooting, hiking, cross-country skiing, the restaurant, the lodge, and the corporation facilities, which the Assessor concluded were non-agricultural uses of the land, with the income earned from timber production and cattle grazing, which the Assessor conceded were agricultural. The exhibit showed that over eighty percent of the Lodge‘s income came from non-agricultural sources.
{17} As authority for this income method of classification, the Board noted that
{18} The Court of Appeals rejected this approach, noting first that to the extent the Board relied on
{19} Contrary to the Court of Appeals, we conclude that the Board did, in fact, rely on 3.6.5.27(A)(2) NMAC to support the use of an income analysis. As noted, the Board expressly concluded that the methods of valuation and classification found in
{20} Of course, as the Court of Appeals noted, when the parties dispute whether a given use is agricultural, this analysis is of limited utility. That is, it does not help determine whether a given use is agricultural, but only whether, in the case of multiple uses, the agricultural use or uses are primary. Further, the regulation only provides for a rebuttable presumption that uses which generate a higher income are primary. There may be circumstances in which that presumption can be rebutted. For example, in Alexander, 1999-NMCA-021, ¶ 12, the Court of Appeals noted that taxpayers must come forward with “evidence of intent to produce a crop.” Furthermore, the Court of Appeals in that case did not “read the subject provisions as requiring proof of actual sales. All that is required is an objective intent to produce a crop for sale or home consumption.” Id. ¶ 28 (emphasis added). Thus, there may be circumstances in which, due to crop failure or unforeseen market conditions, a taxpayer may generate more income in some years from non-agricultural uses of the land than agricultural ones. Because Alexander only required proof of “objective intent to produce a crop,” and not “proof of actual sales,” a landowner with that intent could rebut the presumption. That is but one example; there may be other ways a taxpayer could rebut the presumption and establish that an agricultural use which generates less income than non-agricultural ones is, nevertheless, the primary use of the land.
{21} In this case, the income analysis found in the regulation does not resolve the issues presented on appeal. That is, it does not answer the question whether or not raising elk in two 3,200-acre enclosed game preserves for the primary purpose of producing trophy bulls for hunters is agricultural. It does, however, support the Board‘s determination that, assuming that such a use is not agricultural, the Lodge should not enjoy the agricultural method of valuation because the income derived from the non-agricultural uses significantly exceeds that of the admittedly agricultural uses of timber production and cattle grazing. Thus, while we uphold the Board‘s reliance on 3.6.5.27(A)(2) NMAC generally, we do not rely on the regulation in resolving the remaining issues.
C. Elk as livestock
{22} Because elk are not included among the enumerated animals in the definition of livestock under
Classes of livestock and the value of each class are required to be established by order each tax year pursuant to [Section 7-36-21]. Particular classes or types of “[other] domestic animals useful to man” which are named in the order establishing classes of livestock are “livestock” as that term is defined in [Section 7-35-2].
1. Standard of Review
{23} The Court of Appeals concluded that the Lodge‘s private elk herd fit the definition of livestock contained in
- the agency acted fraudulently, arbitrarily or capriciously;
- the final decision was not supported by substantial evidence; or
- the agency did not act in accordance with law.
The Court of Appeals acknowledged this limited scope of review but also noted that, while it would not substitute its judgment for that of the Board‘s, it was not bound by the Board‘s interpretation of the law. Jicarilla Apache Nation, 2004-NMCA-055, ¶ 17. Although it never makes this point explicit, the Court of Appeals seemed to view this question to be a legal one and reviewed the Board‘s determination de novo.
{24} Determining whether the Lodge‘s private or public herd of elk consists of “other domestic animals useful to man” would ordinarily require factual findings about the nature of the elk and the Lodge‘s handling of them, and then a legal determination whether the facts so found support the conclusion that the elk fit the legal definition of livestock. In general, we review findings of fact for substantial evidence, and the legal conclusion de novo. See TPL, Inc. v. N.M. Tax. & Rev. Dep‘t, 2003-NMSC-007, ¶ 10, 133 N.M. 447, 64 P.3d 474; Rauscher, Pierce, Refsnes, Inc. v. Tax. & Rev. Dep‘t, 2002-NMSC-013, ¶ 26, 132 N.M. 226, 46 P.3d 687. But see State v. Attaway, 117 N.M. 141, 144-45, 870 P.2d 103, 106-07 (1994) (suggesting that the standards of review for fact and law are not binary and the degree of deference given to a mixed question of law depends less on the category into which each fall than on “principles of appellate review” and “policy considerations“). Here, however, the facts are not in dispute. Instead, the parties disagree about the legal conclusion to draw from those facts. Thus, we are faced with a pure question of law, which we review de novo. See TPL, Inc., 2003-NMSC-007, ¶ 10.
{25} Although we review de novo the Board‘s legal conclusion that elk are not livestock under the Property Tax Code, that de novo review is limited by the deference courts should give to these kinds of legal determinations made by administrative agencies. As we noted in Rio Grande Chapter of the Sierra Club, 2003-NMSC-005, ¶ 17, we are not bound by an agency‘s interpretation of the law, but we do give deference to an agency‘s reasonable interpretation or application of law. See also Chavez v. Mountain States Constructors, 1996-NMSC-070, ¶¶ 20-21, 122 N.M. 579, 929 P.2d 971; Morningstar Water Users v. New Mexico Pub. Util. Comm‘n, 120 N.M. 579, 583, 904 P.2d 28, 32 (1995). Indeed, we give a “heightened degree of deference to legal questions that ‘implicate special agency expertise or the determination of fundamental policies within the scope of the agency‘s statutory function.‘” Morningstar Water Users, 120 N.M. at 583, 904 P.2d at 32 (quoting Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 903 (Alaska 1987)). Given that deferential standard of
2. The Merits
{26} In affirming Petitioner‘s assessment, the Board relied, in part, on the fact that P.T.D. Order No. 99-25 does not include elk in its list of livestock. The Court of Appeals rejected this approach, noting that the Order also fails to include other animals, such as buffalo, mules, and ratites, that are specifically listed as livestock in
{27} On appeal to this Court, the Department of Taxation and Revenue filed an Amicus Curiae brief arguing that the Court of Appeals’ opinion, by allowing the assessors to disregard the direction of the Division, could lead to uneven application of the Property Tax Code. Indeed, the Department could not “emphasize too strongly what problems it would cause in the administration of property taxes throughout the state if local county assessors had the power to substitute their own judgment for statutory provisions and regulations and classifications issued by the Department.” [Amicus Br. 6] That risk is heightened by the final result of the Court of Appeals’ opinion, which concluded that some elk are livestock and other elk are not.1 We agree that uneven administration of the Property Tax Code is troubling, which is why we emphasize that what we are reviewing in this case is the Division‘s categorical determination that elk are not livestock. As we explain below, we conclude that the Division‘s conclusion that elk are not livestock is a reasonable interpretation of
{28} Neither party disputes that the meat and hides of elk make them “useful to man.” Rather, the dispute centers on the question whether elk are “domestic animals.” The Court of Appeals reversed the Board in part because it concluded that elk are not significantly less tame than buffalo. Jicarilla Apache Nation, 2004-NMCA-055, ¶ 28. In support of this argument, the Court noted how the Lodge carefully regulates their breeding and they are kept within an eight-foot fence. Although these facts are both indicia of domes-
{29} Finally, contrary to the Court of Appeals, we do not conclude that the fact that “farmed cervidae” is listed under the definition of livestock under the Livestock Code is dispositive of their classification under the Property Tax Code. First, we note that each definition includes different animals in its enumerated lists that fit the definition. Compare
{30} Second, the definition section of the Livestock Code begins: “As used in The Livestock Code:”
[P]rovided that for the purposes of Chapter 77, Article 9 NMSA 1978, [dealing with branding of livestock] “animals” or “livestock” have the meaning defined in that article.... For the purpose of the rules governing meat inspection, wild animals, poultry and birds used for human consumption shall also be included within the meaning of “animals” or “livestock[.]”
{31} Finally, we note that other Codes seem to refer to elk in a way that is inconsistent with their being livestock. For example, the Food Donors Liability Act contains a provision allowing hunters to donate wild game meat products. That provision defines “wild game” as “deer, elk, antelope, caribou, ibex, oryx and Barbary sheep.”
{32} As the Court of Appeals held, in general we try to read different statutes “in connection with other statutes concerning the same subject matter.” Quantum Corp. v. Taxation & Revenue Dep‘t, 1998-NMCA-050, ¶ 8, 125 N.M. 49, 956 P.2d 848. Additionally, we generally presume that the Legislature does not intend to enact legislation inconsistent with existing law. See Schnedar, 115 N.M. at 575, 855 P.2d at 564. We, however, see nothing necessarily inconsistent with defining terms in different ways depending on the context in which the term is to be used. The Legislature, for whatever reason, has defined livestock and elk differently in different sections. We must give effect to that unambiguous intent.
{33} The Court of Appeals concluded that the private elk herd could only be considered livestock. We reverse that conclusion and hold that the Board properly deferred to the decision of the Division that the private herd was not livestock, despite the fact that it bears some indicia of domestication. The Court of Appeals also held that the public herd was not livestock. Because the public herd bears none of the indicia of domestication, we affirm that conclusion. We do so because the facts of this case allow us to accept the Division‘s categorical determination that elk are not livestock. As the Court of Appeals noted, however, these conclusions do not completely resolve the case. We next determine whether the Lodge‘s conservation agreement with the USDA mandates that the property in question be considered agricultural.
D. Soil conservation program
{34} Although Petitioner had conceded at the hearing that the Lodge‘s conservation agreement with the USDA was a bona fide agricultural use, the Board concluded that it was not. Specifically, the Board concluded that the agreement
has, as its primary purpose, the development and maintenance of a habitat suitable for the maintenance of elk, not soil conservation. Any soil conservation effected by the plan is incidental and secondary to this primary purpose. As such, the plan does not qualify as a soil conservation program pursuant to [Section 7-36-20(B)].
The Court of Appeals reversed, concluding that: (1) the agreement was a soil conservation agreement under
{35} The Board‘s conclusion is ambiguous. On the one hand, language in the first part of the paragraph quoted above suggests that it rejected the Lodge‘s argument because it concluded that the conservation agreement was not the primary use of the land. On the other hand, the last sentence states that, because soil conservation was not the primary purpose of the agreement, it did not qualify as a soil conservation agreement under the statute.
{36} To the extent that the Board concluded that the agreement was not a soil conservation agreement, we agree with the Court of Appeals that such a conclusion would be error. This agreement is with the USDA, an “agency of the federal government” under
{38} The Court of Appeals, interpreting 3.6.5.27(A)(1) NMAC, concluded that “the Nation‘s qualification for compensation under this agreement constituted primary agricultural use of the upland portion of the property” without a further showing that the compensation agreement was the primary use of the property. Jicarilla Apache Nation, 2004-NMCA-055, ¶ 41. We disagree. That regulation provides:
- When applying for classification of land as land used primarily for agricultural purposes, the owner of the land bears the burden of demonstrating that the use of the land is primarily agricultural. This burden cannot be met without submitting objective evidence that:
- the plants, crops, trees, forest products, orchard crops, livestock, poultry or fish which were produced or which were attempted to be produced through use of the land were:
- produced for sale or home consumption in whole or in part; or
- used by others for sale or resale; or
- used, as feed, seed or breeding stock, to produce other such products which other products were to be held for sale or home consumption; or
- the use of the land met the requirements for payment or other compensation pursuant to a soil conservation program under an agreement with an agency of the federal government; or
- the owner of the land was resting the land to maintain its capacity to produce such products in subsequent years.
- the plants, crops, trees, forest products, orchard crops, livestock, poultry or fish which were produced or which were attempted to be produced through use of the land were:
3.6.5.27(A) NMAC (emphasis added).
{39} The regulation delineates several ways that a taxpayer can demonstrate that the land is used for agricultural purposes. The listed uses are alternative necessary conditions for establishing agricultural use, and the regulation requires the taxpayer to present objective evidence that the land is used in accordance with at least one of them. None, however, are sufficient conditions that by themselves definitively prove that the land meets all of the qualifications for the agricultural exemption. The taxpayer must still establish the other two requirements found in
{40} The regulation, however, does not read: “This burden will be met by submitting objective evidence” of use consistent with a valid soil conservation agreement. Instead, it reads: “This burden cannot be met without submitting objective evidence” of the proper use. In that sense, subsection (A)(1)(b), unlike subsection (A)(1)(a), adds very little to the requirements set forth in Sections
{41} Consistent with the Court of Appeals, we hold that the Lodge entered into a valid soil conservation agreement with the USDA which governs in part the use of the uplands region. Contrary to the Court of Appeals, however, we uphold the Board‘s determination that the agreement was insufficient to establish that the primary use of the uplands region was agricultural. The Board‘s conclusion that the primary use of the land was commercial hunting, not to meet the requirements of the agreement, is supported by substantial evidence and is not contrary to law. We therefore reverse the Court of Appeals on this point and affirm the order of the Board.
III. Conclusion
{42} For the foregoing reasons, we reverse the Court of Appeals and affirm the decision and order of the Board. We remand this case for proceedings consistent with this opinion.
{43} IT IS SO ORDERED.
WE CONCUR: PETRA JIMENEZ MAES, Chief Justice, PATRICIO M. SERNA, Justice.
PAMELA B. MINZNER, Justice (dissenting).
RODERICK T. KENNEDY, Judge (sitting by designation) (dissenting).
MINZNER, Justice (dissenting).
{44} I respectfully dissent. The statutory analysis on which the opinion depends seems to me to give too little weight to the text of
{45} The prior statute read as follows:
A. The value of land used primarily for agricultural purposes shall be determined on the basis of the land‘s capacity to produce agricultural products. The burden of demonstrating primary agricultural use is on the owner of the land, and he must produce objective evidence of bona fide agricultural use for the year preceding the year in which application is made for his land to be valued under this section. The fact that land was devoted to agricultural use in the preceding year is not of itself sufficient evidence to support a finding of bona fide primary agricultural use when there is evidence that the agricultural use was subordinate to another use or purpose of the owner, such as holding for speculative land subdivision and sale, commercial use of a nonagricultural character, recreational use or other nonagricultural purpose.
1975 N.M. Laws, ch. 165, § 3.
{46} The existing statute reads as follows:
A. The value of land used primarily for agricultural purposes shall be determined on the basis of the land‘s capacity to produce agricultural products. Evidence of bona fide primary agricultural use of land for the tax year preceding the year for which determination is made of eligibility for the land to be valued under this section creates a presumption that the land is used primarily for agricultural purposes during the tax year in which the determination is made. If the land was valued under this section in one or more of the three tax years preceding the year in which the determination is made and the use of the land has not changed since the most recent valuation under this section, a presumption is created that the land continues to be entitled to that valuation.
{47} The prior statute contained neither of the two presumptions the present statute contains. The prior statute placed the burden of demonstrating “primary agricultural use” on the owner wishing to take advantage of
{48} These differences between the two statutes suggest that the Legislature was trying to simplify proof for the taxpayer and give greater weight to a prior determination of agricultural use. Further, the rules of construction the Legislature have provided, see generally
{49} I recognize that
{50} The facts that Black was decided in 1980 and the amendment was enacted in 1981 seem to me to raise the question, rather than answer it. The majority reasons that the amended statute indicates an intent to overrule Black. I am not certain that the analysis in Black depended on the list of determinations the Legislature had provided prior to 1981, rather than the difference between the purposes of
{51} If there is ambiguity, and I am not persuaded there is, the more general rule of construction I would apply favors the taxpayer. “Where there is reasonable doubt of the meaning of a revenue statute, the doubt is resolved in favor of those taxed.” 3A Norman J. Singer, Statutes and Statutory Construction § 66:1, at 3 (6th ed.2003). Professor Singer notes that there are several theories that have been advanced in support of the principle, including that the principle is “a desirable way to secure equality and uniformity in the imposition of the tax burden.” Id. at 13. As the majority notes, the Court of Appeals accepted certification in part to secure a “uniform application of the Property Tax Code.” See Maj. Op. ¶ 27 n. 1. I believe trying to use the presumption provided in
{52}
{53} In response to
{54} The existence of a valid Soil Conservation Agreement stands alone as justifying a classification of land as agricultural under the statute. The taxpayer was entitled to the benefit of the presumption provided in
{55} After the 1997 amendment to
{56} One of the purposes of strict construction of a tax statute is to provide notice. “[A] rigid application of revenue measures is for the protection of citizens by informing them in unambiguous terms as to the amount and nature of their duty to pay taxes.” 3A Singer, supra § 66.1, at 13. In suggesting that the Legislature could not have meant to grant land subject to a valid Soil Conservation Agreement the benefit of
{57} Because the Soil Conservation Agreement covers most of the acreage in dispute, the Board may have erred in addressing separately the acreage occupied by the private herd. Cf. 3.6.5.8(B) NMAC (governing classification of multiple-use properties, those which contain both residential and non-residential components) (“If it is not feasible to separate a multiple-use property into discreet entities, then that property shall be classified according to the predominant use of the property“). The private herd seems to occupy only about six thousand of the twenty-seven thousand acres at issue. Perhaps the predominant use of the property should be measured by the number of acres devoted to a use. The Board‘s determination that the predominant use of the land was to provide a suitable habitat for elk seems to have been a determination that affected its determination as to all twenty-seven thousand acres. I question whether the appeal actually presents two different questions. The assessment made, however, as well as the stipulations seem to have distinguished the acreage devoted to the public herd from the acreage devoted to the private herd.
{58} If it is necessary to address separately the acreage devoted to the private herd, then I believe the focus on whether elk are appropriately considered livestock or not is misplaced. The Board concluded that providing a habitat for elk was a non-agricultural use and that there was evidence the owner intended to make “recreational and other non-agricultural uses” primary. The Board relied on Alexander in concluding that an applicant was required to demonstrate an objective intent. The Board‘s analysis seems more consistent with the prior version of
{59} The Board also relied on the evidence of income, the Bureau of Indian Affairs Letter Statement of Intent, and the fact that “[a] significant portion of the subject property is used for the production of private elk, and the grazing of public elk, both of which are used in the big game hunting business.” The Board noted that timber income, which is recognized as a bona fide agricultural use, “averaged between 10% and 30% of the total income for the property for the four years given.” The Board appears to have concluded that timber production was a secondary use. Having concluded that providing a suitable habitat for elk was a non-agricultural use, I think the Board must have thought the Legislature did not, or perhaps could not, have intended to encompass such use under
{60} Based on the evidence produced, the most appropriate result seems to turn on who had the burden of proof on any question or questions of fact and then what law controls the conclusion to be drawn. If I am right to think that the taxpayer was entitled to rely on the presumption provided in the last sentence of
{61} The majority affirms the Board in part on the basis of the Department‘s regulation creating a presumption “that land is not used primarily for agricultural purposes if income from nonagricultural use of the land exceeds the income from agricultural use of the land.” Maj. Op. ¶¶ 17, 19 (quoting & discussing 3.6.5.27(A)(2) NMAC). The Court of Appeals reasoned that this presumption was not relevant because the Board did not rely on it. The majority believes the Board did rely on it, see Maj. Op. ¶¶ 19, but indicates agreement with the Court of Appeals that “when the parties dispute whether a given use is agricultural, this analysis is of limited utility.” See Maj. Op. ¶ 20. I agree that the regulation does not resolve the issue presented on appeal.
{62} The Legislature probably ought to say something more about multiple uses, or pursuant to
{63} The issue of uniformity is an important one, and I appreciate that the majority tries to reach a decision that promotes uniformity. I think the Court of Appeals tried to do the same thing. What seems to me to be a deciding factor is that the Board appears to have had to reach a conclusion that the Legislature must make, whether or not providing habitat for elk is a non-agricultural use, because unless it is not, the taxpayer seems to be entitled to rely on the presumption the Legislature has provided. The Court of Appeals tried to work with the statutes as written, however ambiguous they seemed. The Board on the other hand, particularly with respect to the Soil Conservation Agreement, appears to have had to limit the statute the Legislature has written in order to reach its determinations. On balance, I believe the Court of Appeals opinion contains the more appropriate analysis.
{64} The majority would reverse the Court of Appeals on the basis the Board reached the right result. For the foregoing reasons, I respectfully dissent.
I CONCUR: RODERICK T. KENNEDY, Judge.