0001| SENATE BILL 798
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0002| 43rd legislature - STATE OF NEW MEXICO - first session, 1997
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0003| INTRODUCED BY
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0004| R. L. STOCKARD
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0009|
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0010|
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0011| AN ACT
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0012| RELATING TO TORT CLAIMS; CHANGING THE STANDARD FOR LIABILITY
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0013| UNDER THE TORT CLAIMS ACT.
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0014|
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0015| BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
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0016| Section 1. Section 41-4-2 NMSA 1978 (being Laws 1976,
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0017| Chapter 58, Section 2) is amended to read:
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0018| "41-4-2. LEGISLATIVE DECLARATION.--
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0019| A. The legislature recognizes the inherently unfair
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0020| and inequitable results [which] that occur in the strict
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0021| application of the doctrine of sovereign immunity. On the
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0022| other hand, the legislature recognizes that while a private
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0023| party may readily be held liable for his torts within the
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0024| chosen ambit of his activity, the area within which the gov-
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0001| ernment has the power to act for the public good is almost
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0002| without limit and, therefore, government should not have the
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0003| duty to do everything that might be done. Consequently, it is
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0004| declared to be the public policy of New Mexico that
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0005| governmental entities and public employees shall only be liable
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0006| within the limitations of the Tort Claims Act and in accordance
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0007| with the principles established in that act.
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0008| B. The Tort Claims Act shall be read as abolishing
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0009| all judicially created categories such as "governmental" or
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0010| "proprietary" functions and "discretionary" or "ministerial"
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0011| acts previously used to determine immunity or liability.
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0012| [Liability for acts or omissions under the Tort Claims Act
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shall be based upon the traditional tort concepts of duty and
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the reasonably prudent person's standard of care in the
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performance of that duty.] The Tort Claims Act in no way
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0016| imposes a strict liability for injuries upon governmental
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0017| entities or public employees. Determination of the standard of
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0018| care required in any particular instance should be made with
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0019| the knowledge that each governmental entity has financial
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0020| limitations within which it must exercise authorized power and
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0021| discretion in determining the extent and nature of its
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0022| activities."
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0023| Section 2. Section 41-4-5 NMSA 1978 (being Laws 1976,
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0024| Chapter 58, Section 5, as amended) is amended to read:
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0025| "41-4-5. LIABILITY--OPERATION OR MAINTENANCE OF MOTOR
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0001| VEHICLES, AIRCRAFT AND WATERCRAFT.--The immunity granted
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0002| pursuant to Subsection A of Section [5-14-4 NMSA 1953] 41-4-
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0003| 4 NMSA 1978 does not apply to liability for damages resulting
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0004| from bodily injury, wrongful death or property damage caused by
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0005| the [negligence] malicious, willful, reckless, wanton,
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0006| grossly negligent or fraudulent conduct of public employees
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0007| while acting within the scope of their duties in the operation
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0008| or maintenance of any motor vehicle, aircraft or watercraft."
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0009| Section 3. Section 41-4-6 NMSA 1978 (being Laws 1976,
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0010| Chapter 58, Section 6, as amended) is amended to read:
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0011| "41-4-6. LIABILITY--BUILDINGS, PUBLIC PARKS, MACHINERY,
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0012| EQUIPMENT AND FURNISHINGS.--The immunity granted pursuant to
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0013| Subsection A of Section [5-14-4 NMSA 1953] 41-4-4 NMSA 1978
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0014| does not apply to liability for damages resulting from bodily
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0015| injury, wrongful death or property damage caused by the
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0016| [negligence] malicious, willful, reckless, wanton, grossly
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0017| negligent or fraudulent conduct of public employees while
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0018| acting within the scope of their duties in the operation or
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0019| maintenance of any building, public park, machinery, equipment
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0020| or furnishings. Nothing in this section shall be construed as
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0021| granting waiver of immunity for any damages arising out of the
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0022| operation or maintenance of works used for diversion or storage
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0023| of water."
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0024| Section 4. Section 41-4-7 NMSA 1978 (being Laws 1976,
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0025| Chapter 58, Section 7) is amended to read:
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0001| "41-4-7. LIABILITY--AIRPORTS.--
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0002| A. The immunity granted pursuant to Subsection A of
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0003| Section [4 of the Tort Claims Act] 41-4-4 NMSA 1978 does
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0004| not apply to liability for damages resulting from bodily
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0005| injury, wrongful death or property damage caused by the
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0006| [negligence] malicious, willful, reckless, wanton, grossly
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0007| negligent or fraudulent conduct of public employees while
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0008| acting within the scope of their duties in the operation of
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0009| airports.
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0010| B. The liability imposed pursuant to Subsection A
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0011| of this section shall not include liability for damages due to
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0012| the existence of any condition arising out of compliance with
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0013| any federal or state law or regulation governing the use and
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0014| operation of airports."
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0015| Section 5. Section 41-4-8 NMSA 1978 (being Laws 1976,
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0016| Chapter 58, Section 8) is amended to read:
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0017| "41-4-8. LIABILITY--PUBLIC UTILITIES.--
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0018| A. The immunity granted pursuant to Subsection A of
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0019| Section [4 of the Tort Claims Act] 41-4-4 NMSA 1978 does
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0020| not apply to liability for damages resulting from bodily
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0021| injury, wrongful death or property damage caused by the
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0022| [negligence] malicious, willful, reckless, wanton, grossly
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0023| negligent or fraudulent conduct of public employees while
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0024| acting within the scope of their duties in the operation of the
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0025| following public utilities and services: gas; electricity;
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0001| water; solid or liquid waste collection or disposal; heating;
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0002| and ground transportation.
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0003| B. The liability imposed pursuant to Subsection A
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0004| of this section shall not include liability for damages
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0005| resulting from bodily injury, wrongful death or property
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0006| damage:
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0007| (1) caused by a failure to provide an adequate
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0008| supply of gas, water, electricity or services as described in
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0009| Subsection A of this section; or
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0010| (2) arising out of the discharge, dispersal,
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0011| release or escape of smoke, vapors, soot, fumes, acids,
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0012| alkalis, toxic chemicals, liquids or gases, waste materials or
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0013| other irritants, contaminants or pollutants into or upon land,
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0014| the atmosphere or any watercourse or body of water."
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0015| Section 6. Section 41-4-9 NMSA 1978 (being Laws 1976,
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0016| Chapter 58, Section 9, as amended) is amended to read:
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0017| "41-4-9. LIABILITY--MEDICAL FACILITIES.--The immunity
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0018| granted pursuant to Subsection A of Section [5-14-4 NMSA
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1953] 41-4-4 NMSA 1978 does not apply to liability for
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0020| damages resulting from bodily injury, wrongful death or
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0021| property damage caused by the [negligence] malicious,
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0022| willful, reckless, wanton, grossly negligent or fraudulent
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0023| conduct of public employees while acting within the scope of
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0024| their duties in the operation of any hospital, infirmary,
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0025| mental institution, clinic, dispensary, medical care home or
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0001| like facilities."
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0002| Section 7. Section 41-4-10 NMSA 1978 (being Laws 1976,
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0003| Chapter 58, Section 10, as amended) is amended to read:
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0004| "41-4-10. LIABILITY--HEALTH CARE PROVIDERS.--The immunity
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0005| granted pursuant to Subsection A of Section [5-14-4 NMSA
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1953] 41-4-4 NMSA 1978 does not apply to liability for
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0007| damages resulting from bodily injury, wrongful death or
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0008| property damage caused by the [negligence] malicious,
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0009| willful, reckless, wanton, grossly negligent or fraudulent
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0010| conduct of public employees licensed by the state or permitted
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0011| by law to provide health care services while acting within the
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0012| scope of their duties of providing health care services."
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0013| Section 8. Section 41-4-11 NMSA 1978 (being Laws 1976,
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0014| Chapter 58, Section 11, as amended) is amended to read:
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0015| "41-4-11. LIABILITY--HIGHWAYS AND STREETS.--
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0016| A. The immunity granted pursuant to Subsection A of
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0017| Section 41-4-4 NMSA 1978 does not apply to liability for
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0018| damages resulting from bodily injury, wrongful death or
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0019| property damage caused by the [negligence] malicious,
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0020| willful, reckless, wanton, grossly negligent or fraudulent
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0021| conduct of public employees while acting within the scope of
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0022| their duties during the construction, and in subsequent
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0023| maintenance, of any bridge, culvert, highway, roadway, street,
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0024| alley, sidewalk or parking area.
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0025| B. The liability for which immunity has been waived
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0001| pursuant to Subsection A of this section shall not include
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0002| liability for damages caused by:
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0003| (1) a defect in plan or design of any bridge,
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0004| culvert, highway, roadway, street, alley, sidewalk or parking
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0005| area;
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0006| (2) the failure to construct or reconstruct
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0007| any bridge, culvert, highway, roadway, street, alley, sidewalk
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0008| or parking area; or
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0009| (3) a deviation from standard geometric design
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0010| practices for any bridge, culvert, highway, roadway, street,
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0011| alley, sidewalk or parking area allowed on a case-by-case basis
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0012| for appropriate cultural, ecological, economic, environmental,
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0013| right of way through Indian lands, historical or technical
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0014| reasons, provided the deviation:
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0015| (a) is required by extraordinary
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0016| circumstances;
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0017| (b) has been approved by the governing
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0018| authority; and
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0019| (c) is reasonable and necessary as
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0020| determined by the application of sound engineering principles
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0021| taking into consideration the appropriate cultural, ecological,
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0022| economic, environmental, right of way through Indian lands,
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0023| historical or technical circumstances."
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0024| Section 9. EFFECTIVE DATE.--The effective date of the
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0025| provisions of this act is July 1, 1997.
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0004|
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0005| FORTY-THIRD LEGISLATURE
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0006| FIRST SESSION, 1997
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0007|
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0008|
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0009| March 5, 1997
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0010|
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0011| Mr. President:
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0012|
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0013| Your JUDICIARY COMMITTEE, to whom has been referred
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0014|
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0015| SENATE BILL 798
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0016|
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0017| has had it under consideration and reports same with
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0018| recommendation that it DO PASS, and further recommends that it
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0019| now be referred to the PUBLIC AFFAIRS COMMITTEE.
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0020|
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0021| Respectfully submitted,
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0001| __________________________________
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0002| Fernando R. Macias, Chairman
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0003|
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0004|
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0005|
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0006| Adopted_______________________ Not
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0007| Adopted_______________________
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0008| (Chief Clerk) (Chief Clerk)
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0009|
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0010|
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0011| Date ________________________
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0012|
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0013|
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0014| The roll call vote was 7 For 1 Against
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0015| Yes: 7
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0016| No: McSorley
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0017| Excused: None
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0018| Absent: None
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0019|
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0020|
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0021| S0798JU1
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0022|
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