Who owns the Santa Fe Plaza Obelisk, and where did it go after its removal?

Plain-English summary

Senator George Munoz asked who owned the Plaza Obelisk and where it was after its removal during a public protest. The AG did not decide ownership. The letter says the office answers “question[s] of law,” is “not an adjudicative body,” and knows of no court determination of ownership. Its qualified assessment was that ownership “may lie with the City of Santa Fe.” It expressly “refrain[ed] from drawing any final conclusion about current ownership” without a court determination.

The letter recounts why City ownership was possible. The Territorial Legislative Assembly commissioned the monument in 1867, when the federal government owned it and the underlying land. A 1901 federal patent granted land to the City, reserved specified federal property, but did not list the monument or its supporting land among those reservations. The grant used the monument as a survey reference point. The AG also reported no known later federal ownership claim, State ownership claim, or City-to-State transfer. An employee of the State General Services Department raised possible State ownership without citing supporting authority.

The City Attorney's Office told the AG that the monument was in “a secure, undisclosed location” because of concern it might be harmed further. The letter directed access and location requests to City Attorney Erin McSherry. It also described a pending case, Union Protectiva v. Webber & the City of Santa Fe, whose complaint asserted that the monument was subject to the New Mexico Prehistoric and Historic Sites Preservation Act. The letter did not resolve that claim or decide what should happen to the monument.

What this means for you

Santa Fe residents and journalists

The advisory letter identified a possible City ownership basis but no final owner. It reported the location only as secure and undisclosed, based on information supplied by the City Attorney's Office.

City and State officials

The letter distinguished the documented 1901 patent from an ownership adjudication. It reported that the AG was unaware of any State ownership claim or City-to-State transfer and that a State employee's question came without cited authority.

Historic preservation researchers

The preservation statute appeared as an allegation in the pending complaint. The AG did not decide whether the statute governed the monument or prescribe restoration or relocation.

Common questions

Q: Did the AG rule that Santa Fe owns the Obelisk?
A: No. The letter says ownership “may lie” with the City, then withholds a final conclusion because a court could resolve the factual issue.

Q: Does the 1901 patent settle ownership in this letter?
A: No. The AG described its grant and reservations as evidence consistent with City ownership but did not adjudicate title.

Q: Where was the Obelisk when the AG wrote the letter?
A: The City Attorney's Office told the AG that it was in a secure, undisclosed location. The letter did not give an address.

Q: Did the AG decide whether preservation law requires restoration?
A: No. The letter reported the plaintiff's claim under the preservation statute without deciding its merits.

Background and statutory framework

The AG cited NMSA 1978, § 8-5-2(D) for the office's role in answering questions of law and drew a limit at disputed facts about ownership. Its land-patent account and review of the pending pleadings explained the basis for possible City ownership. The letter also answered the location question by relaying what the City Attorney's Office said; it did not independently identify the site.

Citations

• NMSA 1978, § 8-5-2(D) (1975): AG authority to address questions of law.
• Union Protectiva v. Webber & the City of Santa Fe, No. D-101-CV-2021-01373: pending litigation mentioned in the letter.
• New Mexico Prehistoric and Historic Sites Preservation Act: statute invoked in the plaintiff's complaint, without a ruling by the AG.

Source

• Landing page: https://nmdoj.gov/publication/opinion/2024-02-advisory-letter-santa-fe-soldiers-monument-a-k-a-the-plaza-obelisk/
• Original PDF: https://nmdoj.gov/wp-content/uploads/AG_Advisory_2024-02_-Munoz-_Santa_Fe_Obelisk.pdf

Original opinion text

January 25, 2024
The Honorable Senator George K. Munoz
P.O. Box 2679
Gallup, NM 87305
VIA ELECTRONIC MAIL TO: [email protected]
In Re: Opinion Request – Santa Fe Soldier's Monument, a/k/a the "Plaza Obelisk"

Dear Senator Munoz,

We are in receipt of your December 12, 2023, request for an Attorney General opinion regarding the legal status of the Plaza Obelisk that was removed during a recent public protest, as well as its current whereabouts. Please allow this correspondence to serve as this office's response to your inquiry.

First, regarding the legal status of the Obelisk, it was commissioned before statehood. The Territorial Legislative Assembly, a federal entity created in 1850 by the Organic Act Establishing the Territory of New Mexico, commissioned the monument in 1867 to honor New Mexico soldiers who fought in the Civil War. The Soldiers Monument was constructed in 1869. At that time, the monument and the land supporting it belonged to the Federal Government.

You have asked about current ownership of the Obelisk. Our office issues opinions on "question[s] of law." NMSA 1978, § 8-5-2(D) (1975). However, our office is not an adjudicative body, and we do not resolve factual disputes that may be resolved by a court. With that in mind, we are not aware of any judicial determination of ownership of the obelisk, and we are not in a position to adjudicate the issue.

Ownership may lie with the City of Santa Fe. On February 16, 1901, the Federal Government issued a patent granting lands to the City of Santa Fe, which was properly filed in the office of the territorial precursor to the County Clerk on March 8, 1901 (see attached). In the grant, the United States reserved specific facilities and lands to itself but did not reserve the Soldiers Monument and land to which it is appurtenant in the list of reserved property, or any equivalent description. In fact, the grant specifically mentioned the Soldiers Monument as the point of reference for measuring the size of the land grant.

The Obelisk is the subject of current litigation in the case of Union Protectiva v. Webber & the City of Santa Fe, No. D-101-CV-2021-01373. We have reviewed the complaint filed by the plaintiff in that matter, which asserts that the Obelisk is subject to the provisions of the New Mexico Prehistoric and Historic Sites Preservation Act. The complaint does not explicitly allege that the City owns the Obelisk. However, the original complaint alleged that the City "must repair and restore the Obelisk" (Compl. ¶ 60), and the City admitted in its answer to the first amended complaint that the "Obelisk was funded by the Legislative Assembly of the Territory of New Mexico in the 1860s . . . and has stood within the Plaza." (Answer ¶ 23) These allegations are consistent with City ownership under the federal land grant to the City.

We are not aware of any federal claim of ownership of the monument since the issuance of the patent in 1901. We are also not aware of any official claim of ownership by the State or any transfer of ownership from the City to the State. Upon receipt of your request, we contacted an employee of the General Services Department, and the employee raised a question about possible state ownership without directing our office to any authority that would support such a claim. Absent a definitive determination of ownership by a court, however, we refrain from drawing any final conclusion about current ownership.

As to the Obelisk's current whereabouts, the City Attorney's Office informed us that it is in a secure, undisclosed location for security reasons based on the concern that further harm may come to it. Requests for access to and the location of the Obelisk may be directed to City Attorney Erin McSherry.

Attorney General opinion requests are public documents. We consider this response to be a public document, as well. Please let us know if we may be of further assistance on this matter.

Sincerely,
Daniel Ross Rubin
Assistant Attorney General
Government Counsel and
Accountability Division