Posted at: 11/07/2013 10:12 PM
Updated at: 11/07/2013 10:37 PM
By: Ryan Luby, KOB Eyewitness News 4
TRUTH OR CONSEQUENCES, N.M. -- Roughly five dozen people believe someone broke a decades-old promise by allowing the city to build a trash collection center next to their homes.
They filed a lawsuit claiming that the city violated acts of Congress passed in 1936 and 1959 which patented the land for recreational use, specifically a municipal golf course. They cite current federal law arguing that it allows the United States to reclaim the land if it's not used as intended.
Since a judge still hasn't ruled on the year-old case, the city was able to build the trash center despite the protests.
"It's your household trash – garbage, diapers," homeowner Steve Villines told 4 On Your Side in an interview last month.
His home is less than 50 feet from the trash center property.
"So, it became very obvious that the only way to stop this was to file suit," Deb Toomey said.
Toomey, the lead plaintiff on the case, also raised concern about the trash center's close proximity to one of the city's drinking water wells.
Despite the concern, Mayor John Mulcahy – who announced his December resignation the day 4 On Your Side asked for an interview – said the city followed federal and state law. And he said the city sought and received approval from various state agencies.
"We did do the right thing," he said.
Additionally, Mulcahy said the land was the most appropriate and logical place to build the trash center after the city closed its landfill earlier this year.
Mulachy explained that the city collects its garbage at the trash center and then trucks it to a contracted landfill elsewhere.
The city's Santa Fe legal team declined to speak on-camera, but the basis of their defense is a letter from the Bureau of Land Management in 1984. It indicated that a reversionary clause attached to the land lapsed after 25 years, which means the golf course provisions disappeared.
Initially, the Bureau gave the city approval to build the trash center based on that letter, but without the legal documentation to back it up.
Bill Childress, district manager of the Bureau's Las Cruces office, said more than 60 years of documents that tell the history of the land went missing.
Yet just a day before 4 On Your Side arrived at Childress' office for an interview, his staff found the file. Just hours before this story aired on KOB Eyewitness News 4 Thursday night, Childress sent 4 On Your Side federal legal opinions that he said substantiated the Bureau's letter from 1984.
Childress explained to 4 On Your Side – and city leaders – that the 25-year reversionary clause lapsed in 1984 since the federal government reissued the land patent in 1959. He said the 1959 land patent served as an appropriate change of use for the land, which started a 25-year clock ticking.
Toomey said she'll challenge that with the Bureau directly. She said the 1959 land patent is merely a land patent and not a change of use application.
Additionally, she referenced a legal opinion from New Mexico's Economic Development Department. Last year, Wade Jackson, the department's general counsel, formally stopped the city from selling a portion of the land to the New Mexico Spaceport Authority. He argued that the city's reliance on that letter from 1984, and the legal opinions that supported it, were "simply not the law."