Impact aid case going to high court

By Bill Donovan
Staff Writer

GALLUP — For years, everyone seemed to be telling attorneys for the Gallup and Zuni school systems to give up the impact aid fight.

But the two districts, despite setback after setback, kept plugging away, and on Tuesday officials learned that the U.S. Supreme Court had decided to hear the case.

George Kozeliski, attorney for the Gallup-McKinley County School District, said the district definitely beat the odds and now will get a chance to convince the nine judges on the Supreme Court that the state of New Mexico has been wrong all of these years keeping the lion's share of the impact aid given by the federal government.

A victory for the two districts will mean a windfall of more than $200 million and as much as $20 million more a year for capital improvements and operating expenses.

No date has been set for oral arguments but Kozeliski said he and Ron VanAmberg, attorney for the Zuni Public School District, are now preparing a brief to submit to the Supreme Court. After that, attorneys for the New Mexico State Department of Education get a chance to reply and the two school districts may then get a brief time period to respond one more time.

He expects that oral arguments will be sometime in January.

Kozeliski said he has spent a third of his adult life on this fight, a total of eight years. Several times during those eight years, he said, it seemed like the school districts had lost.

They lost when a three-member panel for the 10th Circuit Court of Appeals voted 2-1 against the districts. But that lone dissent was so strong that it convinced the entire appeals court to hear the case and that decision came down to a 6-6 tie.

At that point the two districts decided to try to get the Supreme Court to hear the case even though the odds were against the court agreeing to do so.

"The court only accepts about 3 percent of the cases," Kozeliski said.

The judges on the supreme court had a meeting on Monday and went through the appeals that had been filed to determine which ones they would hear.

Kozeliski said the judges may have selected the case because the court may have wanted the opportunity to determine if an agency of the government has the right to go against a decision made by Congress.

The dispute between the state and the school districts centers around funds given to the school districts in areas where large tracts of land within the district are owned by the federal government as parks or military installations, or the government acts as trustee for the land, as in Indian reservations.

The impact aid monies therefore are meant to make up for the losses in tax revenue.

The school districts are claiming that the Secretary of U.S. Department of Education has agreed that the states can hold back portions of the impact aid because the laws passed by Congress are vague on that issue.

The school districts say Congress meant for the money to go to the school districts and the decision by the state of New Mexico to hold back 95 percent of the funds allocated to the school districts goes contrary to what Congress wanted.

So, said Kozeliski, the issue that the Supreme Court will decide is whether federal agencies have the right to take a position contrary to what Congress wanted.

VanAmberg said he wasn't surprised the Supreme Court decided to take the case because it will have an effect on military bases as well as school districts.

He said he also isn't surprised that other school districts in the same situation as Gallup haven't joined in to help Gallup and Zuni. Although the other districts will reap the benefits if Gallup and Zuni wins, it's been those two districts that have had to fight the fight and pay the costs over the past two years.

Both VanAmberg and Kozeliski now will get their first opportunity to practice before the Supreme Court, something that only a small percentage of America's lawyers get to do doing their lifetime.

Kozeliski said he thinks only one other Gallup attorney Joe Jasper has taken a case to the Supreme Court.

He said he thought there was a possibility he would get an opportunity to appear before the Supreme Court; so, he went through the process this past summer to be admitted to practice before the court. To do that, one must get a letter of recommendation from two attorneys who have already been admitted to practice.