[Senate Report 107-285]
[From the U.S. Government Publishing Office]
107th Congress Report
SENATE
2d Session 107-285
======================================================================
T'UF SHUR BIEN PRESERVATION TRUST AREA ACT
_______
September 17, 2002.--Ordered to be printed
_______
Mr. Bingaman, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 2018]
[Including cost estimate of the Congressional Budget Office]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2018) to establish the T'uf Shur Bien
Preservation Trust Area within the Cibola National Forest in
the State of New Mexico to resolve a land claim involving the
Sandia Mountain Wilderness, and for other purposes, having
considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
The amendment is as follows:
Strike out all after the enacting clause in insert in lieu
thereof the following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``T'uf Shur Bien Preservation Trust
Area Act'.
SEC.2. FINDING AND STATEMENT OF PURPOSE.
(a) Finding.--The Congress finds that in 1748, the pueblo of Sandia
received a grant from a representative of the King of Spain, which
grant was recognized and confirmed by Congress in 1858 (11 Stat. 374).
In 1994, the Pueblo filed a lawsuit against the Secretary of the
Interior and the Secretary of Agriculture in the U.S. District Court
for the District of Columbia, Civil No. 1:94CV02624, asserting that
federal surveys of the grant boundaries erroneously excluded certain
lands within the Cibola national Forest, including a portion of the
Sandia Mountain Wilderness;
(b) Purposes.--The purposes of this Act are to--
(1) establish the T'uf Shur Bien Preservation Trust Area in
the Cibola National Forest;
(2) confirm the status of National Forest and Wilderness
lands in the Area while resolving issues associated with the
Pueblo's lawsuit and the opinions of the Solicitor of the
Department of the Interior dated December 9, 1988 (M-36963; 96
I.D. 331) and January 19, 2001 (M-37002); and
(3) provide the Pueblo, parties involved in the litigation,
and the public with a fair and just settlement of the Pueblo's
claim.
SEC. 3 DEFINITIONS.
For purposes of this Act:
(1) Area.--The term ``Area'' means the T'uf Shur Bien
Preservation Trust Area as depicted on the map, and excludes
the subdivisions and other privately and publicly owned lands
as set forth in this Act.
(2) Crest facilities.--The term ``crest facilities'' means
all facilities and developments located on the crest of Sandia
Mountain, including the Sandia crest Electronic Site;
electronic site access roads; the crest House; the upper
terminal, restaurant, and related facilities of Sandia Peak
Tram Company; the Crest Observation Area; parking lots;
restrooms; the Crest Trail (Trail No. 130); hang glider launch
sites; and the Kiwanis cabin; as well as the lands upon which
such facilities are located and the lands extending 100 feet to
the west of each such facility, unless a different distance is
agreed to in writing between the Forest Service and the Pueblo
and documented in the survey of the Area.
(3) Existing uses and activities.--The term ``existing uses
and activities'' means uses and activities occurring in the
Area on the date of enactment of this Act, or which have been
authorized in the Area after November 1, 1995 but before the
date of enactment of this Act.
(4) Forest service.--The term ``Forest Service'' means the
U.S. Forest Service.
(5) La Luz tract.--The term ``La Luz tract'' means that tract
comprised of approximately 31 acres of land owned in fee by the
Pueblo and depicted on the map.
(6) Local public bodies.--The term ``local public bodies''
means political subdivisions of the State of New Mexico as
defined in New Mexico Code Sec. 6-5-1.
(7) Map.--The term ``map'' means the Forest Service map
entitled ``T'uf Shur Bien Preservation Trust Area,'' dated
April 2000.
(8) Modified uses or activities.--The term ``modified uses or
activities'' means existing uses which are being modified or
re-configured, but which are not being significantly expanded,
including a trail or trailhead being modified, such as to
accommodate handicapped access, a parking area being
reconfigured though not expanded, or a special use
authorization for a group recreation activity being authorized
for a different use area or time period.
(9) New uses or activities.--The term ``new uses or
activities'' means uses or activities not occurring in the Area
on the date of enactment of this Act, as well as existing uses
or activities that are being modified such that they
significantly expand or alter their previous scope, dimensions,
or impacts on the land, water, air and/or wildlife resources of
the Area. New uses and activities do not apply to new uses or
activities that are categorically excluded from documentation
requirements pursuant to the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.), or to activities undertaken
to comply with the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.).
(10) Piedra lisa tract.--the term ``Piedra Lisa tract'' means
that tract comprised of approximately 160 acres of land held in
private ownership and depicted on the map.
(11) Pueblo.--The term ``Pueblo'' means the Pueblo of Sandia
in its governmental capacity.
(12) Secretary.--The term ``Secretary'' means the Secretary
of Agriculture, except where otherwise expressly indicated.
(13) Settlement agreement.--The term ``Settlement Agreement''
means the Agreement of Compromise and Settlement dated April 4,
2000, between the United States, the Pueblo, and the Sandia
Peak Tram Company.
(14) Special use permit.--The term ``special use permit''
means the December 1, 1993, Special Use Permit issued by the
Forest Service to Sandia Peak Tram Company and Sandia Peak Ski
Company, encompassing approximately 46 acres of the corridor
presently dedicated to aerial tramway use, and approximately
945 acres of the ski area, as well as the lands described
generally in Exhibit A to the December 31, 1993, Special Use
Permit, including the maintenance road to the lower tram tower,
water storage and distribution facilities, seven helispots, and
the other lands described therein.
(15) Subdivisions.--The term ``subdivisions'' means the
subdivisions of Sandia Heights Addition, Sandia Heights North
Units I, II, and 3, Tierra Monte, and Evergreen Hills, as well
as any additional plats and privately owned properties depicted
on the map, exclusive of the property now owned or hereafter
acquired by the Pueblo or the Forest Service in the
subdivisions.
(16) Traditional and cultural uses.--The terms ``traditional
and cultural uses'' and ``traditional and cultural purposes''
means ceremonial activities, including the placing of
ceremonial materials in the Area, and the use, hunting,
trapping or gathering of plants, animals, wood, water, and
other natural resources, but only for non-commercial purposes.
SEC. 4. T'UF SHUR BIEN PRESERVATION TRUST AREA.
(a) Establishment.--The T'uf Shur Bien Preservation Trust Area is
established within the Cibola National Forest and the Sandia Mountain
Wilderness as depicted on the map:
(1) to recognize and protect in perpetuity the Pueblo's
rights and interests in and to the Area, as specified in
section 5(a) of this Act;
(2) to preserve in perpetuity the Wilderness and National
Forest character of the Area; and
(3) to recognize and protect in perpetuity the public's
longstanding use and enjoyment of the Area.
(b) Administration and Applicable Law.--The Secretary, acting
through the Forest Service, shall continue to administer the Area as
part of the National Forest System and incorporate the provisions of
this Act affecting management of the Area, including section 5(a)(3)
and section 7.
(c) Exceptions.--
(1) Traditional and cultural uses by Pueblo members and
members of other federally recognized Indian tribes authorized
to use the Area by the Pueblo under section 5(a)(4) of this act
shall not be restricted except by the Wilderness Act and its
regulations as they exist on the date of enactment of this Act
and by applicable federal wildlife protection laws as provided
in section 6(a)(2) of this Act.
(2) To the extent that laws enacted or amended after the date
of this act are inconsistent with this act, they shall not
apply to the Area unless expressly made applicable by Congress.
(3) The use of the word ``Trust'' in the name of the Area is
in recognition of the Pueblo's specific rights and interests in
the Area, and does not confer upon the Pueblo the ownership
interest that exists when the Secretary of the Interior accepts
the title to land in trust for the benefit of an Indian tribe.
(d) Area Defined.--
(1) The Area shall be comprised of approximately 9890 acres
of land within the Cibola National Forest as depicted on the
map.
(2) As soon as practicable after enactment of this Act, the
Secretary shall file the map and a legal description of the
Area with the Committee on Resources of the House of
Representatives and with the Committee on Energy and natural
Resources of the Senate. The map and legal description shall be
on file and available for public inspection in the Office of
the Chief of the Forest Service, Department of Agriculture,
Washington, District of Columbia.
(3) Such map and legal description shall have the same force
and effect as if included in this Act, except that
(A) clerical and typographical errors shall be
corrected;
(B) changes that may be necessary pursuant to section
9(b), 9(d), and 9(e) shall be made; and
(C) to the extent the map and the language of this
Act conflict, the language of the Act controls.
(e) No Conveyance of Title.--The United States' right, title and
interest in or to the Area or any part thereof shall not be conveyed to
or exchanged with any person, trust, or governmental entity, including
the Pueblo, without specific authorization of Congress.
(f) Prohibited Uses.--Notwithstanding any other provision of law,
no use prohibited by the Wilderness Act as of the date of enactment of
this Act may occur in the Washington portion of the Area; nor may any
of the following uses occur in any portion of the Area: gaming or
gambling of any kind, mineral production, timber production, and new
uses or activities to which the Pueblo objects pursuant to section
5(a)(3) of this Act. The Area is closed to the location of mining
claims under the Mining Law of 1872 (30 U.S.C. Sec. 22).
(g) No modification of Boundaries.--Nothing herein shall affect the
boundaries of, or shall repeal or disestablish the Sandia Mountain
Wilderness or the Cibola National Forest. Establishment of the Area
does not in any way modify the existing boundary of the Pueblo grant.
SEC. 5. PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA.
(a) General.--The Pueblo shall have the following rights and
interests in the Area:
(1) free and unrestricted access to the Area for traditional
and cultural uses to the extent not inconsistent with the
Wilderness Act and its regulations as they exist on the date of
enactment of the Act and with applicable federal wildlife
protection laws as provided in section 6(a)(2);
(2) perpetual preservation of the Wilderness and National
Forest character of the Area under this Act;
(3) rights in the management of the Area as set forth in
section 7, which include:
(A) the right to consent or withhold consent to new
uses;
(B) the right to consultation regarding modified
uses;
(C) the right to consultation regarding the
management and preservation of the Area; and
(D) the right to dispute resolution procedures;
(4) exclusive authority, in accordance with its customs and
laws, to administer access to the Area for traditional and
cultural uses by members of the Pueblo and of other federally
recognized Indian tribes; and
(5) such other rights and interests as are enumerated and
recognized in sections 4, 5(c), 8, and 9.
(b) Limitation.--Except as provided in subsection (a)(4), access to
and use of the Area for all other purposes shall continue to be
administered by the Secretary through the Forest Service.
(c) Compensable Interest.--
(1) If, by an Act of Congress enacted subsequent to the
effective date of this Act, Congressional diminishes the
Wilderness and National Forest designation of the Area by
authorizing a use prohibited by section 4(f) in all or any
portion of the Area, or permanently denies the Pueblo access
for any traditional and cultural uses in all or any portion of
the Area, the United States shall compensate the Pueblo as if
the Pueblo had held a fee title interest in the affected
portion of the Area and as though the United States had
acquired such interest by legislative exercise of its power of
eminent domain, and the restrictions of sections 4(f) and 6(a)
shall be disregarded in determining just compensation owed to
the Pueblo.
(2) Any compensation made to the Pueblo pursuant to
subsection (c)(1) does not in any way affect the extinguishment
of claims set forth in section 10.
SEC. 6. LIMITATIONS ON PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE
AREA.
(a) Limitations.--The Pueblo's rights and interests recognized in
this Act do not include:
(1) any right to sell, grant, lease, convey, encumber or
exchange lands in the Area, or any right or interest therein,
and any such conveyance shall not have validity in law or
equity;
(2) any exemption from applicable federal wildlife protection
laws;
(3) any right to engage in any activity or use prohibited in
section 4(f); or
(4) any right to exclude persons or governmental entities
from the Area.
(b) Exception.--No person who exercises traditional and cultural
use rights as authorized in section 5(a)(4) of this Act may be
prosecuted for a Federal wildlife offense requiring proof of a
violation of a State law or regulation.
SEC. 7. MANAGEMENT OF THE AREA.
(a) Process.--
(1) General.--
(A) The Forest Service shall consult with the Pueblo
of Sandia not less than twice a year, unless otherwise
mutually agreed, concerning protection, preservation,
and management of the Area, including new and modified
uses and activities in the Area and authorizations that
are anticipated during the next six months and approved
in the preceding six months.
(2) New uses and activities.--
(A) If after consultation the Pueblo of Sandia denies
its consent for a new use or activity within 30 days of
the consultation, the Forest Service will not be
authorized to proceed with the activity or use. If the
Pueblo consents to the new use or activity in writing
or fails to respond within 30 days, the Forest Service
may proceed with the notice and comment process and the
environmental analysis.
(B) Before the Forest Service signs a Record of
Decision (ROD) or Decision Notice (DN) for a proposed
use of activity, the Forest Service will again request
Pueblo consent within 30 days of the Pueblo's receipt
of the proposed ROD or DN. If the Pueblo refuses to
consent, the activity or use will not be authorized. If
the Pueblo fails to respond to the consent request
within 30 days after the proposed ROD or DN is provided
to the Pueblo, the Pueblo will be deemed to have
consented to the proposed ROD or DN and the Forest
Service may proceed to issue the final ROD or DN.
(3) Public involvement.--
(A) For proposed new and modified uses and
activities, the public shall be provided notice of--
(i) the purpose and need for the proposed
action or activity,
(ii) the Pueblo's role in the decision-making
process, and
(iii) the Pueblo's position on the proposal.
Any member of the public may file an action in the
United States District Court for the District of New
Mexico to challenge Forest Service determinations of
what constitutes a new or a modified use or activity.
(b) Emergencies and Emergency Closure Orders.--The Forest Service
shall retain its existing authorities to manage emergency situations,
to provide for public safety, and to issue emergency closure orders in
the Area subject to applicable law. The Forest Service shall notify the
Pueblo of Sandia regarding emergencies, public safety issues, and
emergency closure orders as soon as possible. Such actions are not
subject to the Pueblo's right to withhold consent to new uses in the
Area as set forth in section 5(a)(3)(i).
(c) Disputes Involving Forest Service Management and Pueblo
Traditional Uses.--
(1) General.--In the event that Forest Service management of
the Area and Pueblo traditional and cultural uses conflict, and
the conflict does not pertain to new or modified uses subject
to the process set forth in subsection (a), the process for
dispute resolution set forth in this subsection shall take
effect.
(2) Dispute resolution process.--(A) When there is a dispute
between the Pueblo and the Forest Service regarding Pueblo
traditional and cultural use and Forest Service management of
the Area, the party identifying the dispute shall notify the
other party in writing addressed to the Governor of the Pueblo
or the Regional Forester respectively, setting forth the nature
of the dispute. The Regional Forester or designee and the
Governor of the Pueblo or designee shall attempt to resolve the
dispute for no less than 30 days after notice has been provided
before filing an action in United States District Court for the
District of New Mexico.
(B) Disputes Requiring Immediate Resolution.--In the event of
a conflict that requires immediate resolution to avoid
imminent, substantial and irreparable harm, the party alleging
such conflict shall notify the other party and seek to resolve
the dispute within 3 days of the date of notification. If the
parties are unable to resolve the dispute within 3 days, either
party may file an action for immediate relief in federal court
in New Mexico, and the procedural exhaustion requirements set
forth above shall not apply.
SEC. 8. JURISDICTION OVER THE AREA.
(a) Criminal Jurisdiction.--Notwithstanding any other provision of
law, jurisdiction over crimes committed in the Area shall be allocated
as follows:
(1) To the extent that the allocations of criminal
jurisdiction over the Area under paragraphs (2), (3), and (4)
of this subsection are overlapping, they should be construed to
allow for the exercise of concurrent criminal jurisdiction.
(2) The Pueblo shall have jurisdiction over crimes committed
by its members or by members of another federally recognized
Indian tribe who are present in the Area with the Pueblo's
permission pursuant to section 5(a)(4).
(3) The United States shall have jurisdiction over--
(A) the offenses listed in section 1153 of title 18,
U.S. Code, including any offenses added to the list in
that statute by further amendments thereto, when such
offenses are committed by members of the Pueblo and
other federally recognized Indian tribes;
(B) crimes committed by any person in violation of
laws and regulations pertaining to the protection and
management of National Forests;
(C) enforcement of federal criminal laws by general
applicability; and
(D) any other offense committed by a member of the
Pueblo against a non-member of the Pueblo. Any offense
which is not defined and punished by federal law in
force within the exclusive jurisdiction of the United
States shall be defined and punished in accordance with
the laws of the State of New Mexico.
(4) The State of New Mexico shall have jurisdiction over any
crime under its laws committed by a person not a member of the
Pueblo.
(b) Civil Jurisdiction.--
(1) Except as provided in paragraphs (2), (3), (4), and (5),
the United States, the State of New Mexico, and local public
bodies shall have the same civil adjudicatory, regulatory, and
taxing jurisdiction over the Area as they exercised prior to
the enactment of this Act.
(2) The Pueblo shall have exclusive civil adjudicatory
jurisdiction over--
(A) disputes involving only members of the Pueblo;
(B) civil actions brought by the Pueblo against
members of the Pueblo; and
(C) civil actions brought by the Pueblo against
members of other federally recognized Indian tribes for
violations of understandings between the Pueblo and
that member's tribe regarding use or access to the Area
for traditional and cultural purposes.
(3) The Pueblo shall have no regulatory jurisdiction over the
Area with the exception of;
(A) exclusive authority to regulate traditional and
cultural uses by the Pueblo's own members and to
administer access to the Area by other federally
recognized Indian tribes for traditional and cultural
uses, to the extent such regulation is consistent with
this Act; and
(B) The Pueblo shall have exclusive authority to
regulate hunting and trapping in the Area by its
members that is related to traditional and cultural
purposes. Such authority shall not vest or continue
until the Pueblo enacts and thereafter maintains and
enforces regulations substantially similar to those of
the State of New Mexico concerning seasons, game
management, types of weapons, proximity of hunting and
trapping to trails and residences, and comparable
safety restrictions. Prior to adopting such
regulations, the Pueblo shall provide the Forest
Service and New Mexico game and Fish Department with
notice and an opportunity to comment on the
regulations. The Pueblo shall consult and exchange
information with the New Mexico Game and Fish
Department on a periodic basis to assist the Department
with its ongoing responsibility to protect wildlife
populations.
(4) The Pueblo shall have no authority to impose taxes within
the Area.
(5) The State of New Mexico and local public bodies shall
have no authority within the Area to tax the activities or the
property of the Pueblo, its members, or members of other
federally recognized Indian tribes authorized to use the Area
under section 5(a)(4) of this Act.
SEC. 9. SUBDIVISIONS AND OTHER PROPERTY INTERESTS.
(a) Subdivisions.--The subdivisions are excluded from the Area. The
Pueblo shall have no civil or criminal jurisdiction for any purpose,
including adjudicatory, taxing, zoning, regulatory or any other form of
jurisdiction, over the subdivisions and property interests therein, and
the laws of the Pueblo shall not apply to the subdivisions. The
jurisdiction of the State of New Mexico and local public bodies over
the subdivisions and property interests therein shall continue in
effect, except that a tract comprised of approximately 35 contiguous,
non-subdivided acres in the northern section of Evergreen Hills owned
in fee by the Pueblo at the time of enactment of this Act, shall be
transferred to the United States and held in trust for the Pueblo by
the United States and administered by the Secretary of the Interior.
Such trust land shall be subject to all limitations on use pertaining
to the Area contained in this Act.
(b) Piedra Lisa.--The Piedra Lisa tract is excluded from the Area
notwithstanding any subsequent acquisition of the tract by the Pueblo.
If the Forest Service acquires the tract, it shall be included in the
Area. Unless the Piedra Lisa tract is acquired by the Pueblo, the
Pueblo shall have no civil or criminal jurisdiction over the tract and
property interests therein, and the laws of the Pueblo shall not apply
to the tract. Except as provided in subsection (e), the jurisdiction of
the State of New Mexico and local bodies over the Piedra Lisa tract and
property interests therein shall continue in effect. If the Forest
Service acquires the tract, the jurisdictional provisions of section 8
of the Act shall apply.
(c) Crest Facilities.--The lands on which the crest facilities are
located are excluded from the Area. The Pueblo shall have no civil or
criminal jurisdiction for any purpose, including adjudicatory, taxing,
zoning, regulatory or any other from of jurisdiction, over the lands on
which the crest facilities are located and property interests therein,
and the laws of the Pueblo shall not apply to those lands. The pre-
existing jurisdictional status of those lands shall continue in effect.
(d) Special Use Permit Area.--The lands described in the special
use permit are excluded from the Area. The Pueblo shall have no civil
or criminal jurisdiction for any purpose, including adjudicatory,
taxing, zoning, regulatory, or any other form of jurisdiction, over the
lands described in the special use permit, and the laws of the Pueblo
shall not apply to those lands. The pre-existing jurisdictional status
of these lands shall continue in effect. In the event the special use
permit, during its existing term or any future terms or extensions,
requires amendment to include other lands in the Area necessary to
realign the existing or any future replacement tram line, associated
structures, or facilities, the lands subject to that amendment shall
thereafter be excluded from the Area and shall have the same status
under this Act as the lands currently described in the special use
permit. Any lands dedicated to aerial tramway and related uses and
associated facilities that are excluded from the special use permit
through expiration, termination or the amendment process shall
thereafter be included in the Area but only after final agency action
no longer subject to any appeals.
(e) La Luz Tract and Subsequent Acquisition.--The La Luz tract now
owned in fee by the Pueblo is excluded from the Area and shall be
transferred to the United States and held in trust for the Pueblo by
the United States and administered by the Secretary of the Interior. if
the Pueblo acquires the Piedra Lisa tract, the tract shall be
transferred to the United States and held in trust for the Pueblo by
the United States and administered by the Secretary of the Interior.
Such trust land shall be subject to all limitations on use pertaining
to the Area contained in this Act. The restriction contained in section
6(a)(4) shall not apply outside of Forest Service System trails.
(f) Evergreen Hills Access.--The Secretary, consistent with section
1323(a) of the Alaska National Interest Lands Conservation Act (16
U.S.C. 3210), shall ensure that Forest Service Road 333D, as depicted
on the map, is maintained in an adequate condition consistent with the
terms of section 1323(a) of the Alaska National Interest Lands
Conservation Act (26 U.S.C. 3210).
(g) Pueblo Fee Lands.--Those properties not specifically addressed
in subsection (a) or (e) of this section that are owned in fee by the
Pueblo within the subdivisions are excluded from the Area and shall be
subject to the jurisdictional provisions of subsection (a) of this
section.
(h) Rights-of-Way.--
(1) Road rights-of-way.--(A) in accordance with the Pueblo
having given its consent in the Settlement Agreement, the
Secretary of the Interior shall grant to the County of
Bernalillo, New Mexico, in perpetuity, the following
irrevocable rights of way for roads identified on the map in
order to provide for public access to the subdivisions, the
special use permit land and facilities, the other leasehold and
easement rights and interests of the Sandia Peak Tram Company
and its affiliates, the Sasndia Heights South Subdivision, and
the Area:
(i) a right-of-way for Tramway Road;
(ii) a right-of-way for Juniper Hill Road
North;
(iii) a right-of-way for Juniper Hill Road
South;
(iv) a right-of-way for Sandia Heights Road;
and
(v) a right-of-way for Juan Tabo Canyon Road
(Forest Road No. 333).
(B) The road rights-of-way shall be subject to the
following conditions:
(i) Such rights-of-way may not be expanded or
otherwise modified without the Pueblo's written
consent, but road maintenance to the rights of
way shall not be subject to Pueblo consent;
(ii) The rights-of-way shall not authorize
uses for any purpose other than roads without
the Pueblo's written consent.
(iii) Existing rights-of-way or leasehold
interests held by the Sandia Peak Tram Company
and its affilates, shall be preserved and
protected.
(2) Utility rights-of-way.--In accordance with the Pueblo
having given its consent in the Settlement Agreement, the
Secretary of the Interior shall grant irrevocable utility
rights-of-way in perpetuity across lands to appropriate utility
or other service providers serving Sandia Heights Addition,
Sandia Heights North Units I, II, and 3, the special use permit
lands, and Tierra Monte, including rights-of-way for natural
gas, power, water, telecommunications, and cable television
services. Such rights-of-way shall be within existing utility
corridors as depicted on the map or, for certain water lines,
as described in the existing grant of easement to the Sandia
Peak Utility Company; provided that use of water line easements
outside the utility corridors depicted on the map shall not be
used for utility purposes other than water lines and associated
facilities. Except where above-ground facilities already exist,
all new utility facilities shall be installed underground
unless the Pueblo agrees otherwise. To the extent that
enlargement of existing utility corridors is required for any
technologically-advanced telecommunication, television, or
utility services, the Pueblo shall not unreasonably withhold
agreement to a reasonable enlargement of the easements
described above.
(i) Forest Service Rights-of-Way.--In accordance with the Pueblo
having given its consent in the Settlement Agreement, the Secretary of
the Interior shall grant to the Forest Service the following
irrevocable rights-of-way in perpetuity for Forest Service trails
crossing land of the Pueblo in order to provide for public access to
the Area and through Pueblo lands:
(1) a right-of-way for a portion of the Crest Spur Trail
(Trail No. 84), crossing a portion of the La Luz tract, as
identified on the map;
(2) a right-of-way for the extension of the Foothills Trail
(Trail No. 365A), as identified on the map; and
(3) a right-of-way for that portion of the Piedra Lisa North-
South Trail (Trail No. 135) crossing the Piedra Lisa tract, if
the Pueblo ever acquires the Piedra Lisa tract.
SEC. 10. EXTINGUISHMENT OF CLAIMS.
(a) General.--Except for the rights and interests in and to the
Area specifically recognized in sections 4, 5, 8, and 9, all Pueblo
claims to right, title and interest of any kind, including aboriginal
claims, in and to lands within the Area, any part thereof, and property
interests herein, as well as related boundary, survey, trespass, and
monetary damage claims, are hereby permitted extinguished. The United
States' title to the Area is hereby confirmed.
(b) Subdivisions and Piedra Lisa.--Any Pueblo claims to right,
title and interest of any kind, including aboriginal claims, in and to
the subdivisions and the Piedra Lisa tract and property interests
therein, as well as related boundary, survey, trespass, and monetary
damage claims, are hereby permanently extinguished.
(c) Special Use and Crest Facilities Areas.--Any Pueblo right,
title and interest of any kind, including aboriginal claims, and
related boundary, survey, trespass, and monetary damage claims, are
hereby permanently extinguished in and to--
(1) the lands described in the special use permit; and
(2) the lands on which the crest facilities are located.
(d) Pueblo Agreement.--As provided in the Settlement Agreement, the
Pueblo has agreed to the relinquishment and extinguishment of those
claims, rights, titles and interests extinguished pursuant to
subsection (a), (b) and (c) of this section.
(e) Consideration.--The recognition of the Pueblo's rights and
interests in this Act constitutes adequate consideration for the
Pueblo's agreement to the extinguishment of the Pueblo's claims in this
section and the right-of-way grants contained in section 9, and it is
the intent of Congress that those rights and interests may only be
diminished by a future Act of Congress specifically authorizing
diminishment of such rights, with express reference to this Act.
SEC. 11. CONSTRUCTION.
(a) Strict Construction.--This Act recognizes only enumerated
rights and interests, and no additional rights, interests, obligations,
or duties shall be created by implication.
(b) Existing Rights.--To the extent there exists within the Area at
the time of enactment of this Act any valid private property rights
associated with the Piedra Lisa tract or other private lands that are
not otherwise addressed in this Act, such rights are not modified or
otherwise affected by this Act, nor is the exercise of any such right
subject to the Pueblo's right to the withhold consent to new uses in
the Area as set forth in section 5(a)(3)(i).
(c) Not Precedent.--The provisions of this Act creating certain
rights and interests in the National Forest System are uniquely suited
to resolve the Pueblo's claim and the geographic and societal situation
involved, and shall not be construed as precedent for any other
situation involving management of the National Forest System.
(d) Fish and Wildlife.--Except as provided in section 8(b)(3)(B),
nothing in this Act shall be construed as affecting the
responsibilities of the State of New Mexico with respect to fish and
wildlife, including the regulation of hunting, fishing, or trapping
within the Area.
(e) Federal Land Policy and Management Act.--Section 316 (43 U.S.C.
1746) of the Federal Land Policy and Management Act of 1976 (43 U.S.C.
1701 et seq.) is amended by adding the following sentence at the end
thereof: ``Any corrections authorized by this section which affect
boundaries of, or jurisdiction over, lands administered by another
Federal agency shall be made only after consultation with, and the
approval of, the head of such other agency.''
SEC. 12. JUDICIAL REVIEW.
(a) Enforcement.--Suit to enforce the provisions of this Act may be
brought to the extent permitted under chapter 7 of title 5, United
states Code. Judicial review shall be based upon the administrative
record and subject to the applicable standard to review set forth in
section 706 of title 5, United States Code.
(b) Waiver.--Suit may be brought against the Pueblo for declaratory
judgment or injunctive relief under this Act, but no money damages,
including costs or attorney's fees, may be imposed on the Pueblo as a
result of such judicial action.
(c) Venue.--Venue for any suit provided for in this section, as
well as any suit to contest the constitutionality of this Act, shall
lie only in the United States District Court for the District of New
Mexico.
SEC. 13. EFFECTIVE DATE.
The provisions of this Act shall take effect immediately upon
enactment of this Act.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS AND RELATED AUTHORITIES.--
(a) General.--There are hereby authorized to be appropriated such
sums as may be necessary to carry out this Act, including such sums as
may be necessary for the Forest Service to acquire ownership of lands
within the external boundaries of the Area as authorized in subsection
(d)
(b) Contributions.--
(1) The Secretary is authorized to accept contributions from
the Pueblo, or from other persons or governmental entities, to
perform and complete a survey of the Area, or otherwise for the
benefit of the Area in accordance with this Act.
(2) The Secretary shall complete a survey of the Area within
one year of the date of enactment of this Act.
(c) Land Exchange.--In the event the Secretary purchases or
otherwise acquires ownership of the Piedra Lisa tract, the Forest
Service is authorized to transfer ownership of the Piedra Lisa tract to
the Pueblo in exchange for lands of equal value owned by the Pueblo in
fee within the subdivided portion of the Evergreen Hills subdivision or
other land acceptable to the Secretary. Notwithstanding section 206(b)
of the Federal Land Policy and Management Act (43 U.S.C. 1716(b)), the
Secretary may either make or accept a cash equalization payment in
excess of 25 percent of the total value of the lands or interests
transferred out of Federal ownership. Any such exchange or conveyance
shall be executed in compliance with all applicable laws except that
the Secretary shall retain, without further appropriation, any cash
equalization payment received from the Pueblo for the acquisition of
land to be added to the Cibola National Forest.
(d) Land Acquisition.--The Secretary is authorized to acquire lands
owned by the Pueblo within the Evergreen Hills Subdivision in Sandoval
County or any other privately held lands inside of the exterior
boundaries of the Area. The boundaries of the Cibola National Forest
and the Area shall be adjusted to encompass any lands acquired pursuant
to this section.
(e) Reimbursement of Certain Costs.--
(1) The Pueblo, the County of Bernalillo, New Mexico, and any
person who owns or has owned property inside of the exterior
boundaries of the Area as designated on the map, and who has
incurred actual and direct costs as a result of participating
in the case of Pueblo of Sandia v. Babbitt, Civ. No. 94-2624
HHG (D.D.C.), or other proceedings directly related to
resolving the issues litigated in that case, may apply for
reimbursement in accordance with this section. Costs directly
related to such participation which shall qualify for
reimbursement shall be--
(A) dues or payments to a homeowner association for
the purpose of legal representation; and
(B) legal fees and related expenses.
(2) The reimbursement provided in this subsection shall be in
lieu of that which might otherwise be available pursuant to the
Equal Access to Justice Act (24 U.S.C. 2412).
(3) The Secretary of the Treasury is authorized and directed
to make reimbursement payments as provided in this section out
of any money not otherwise appropriated.
(4) Applications for reimbursement shall be filed within 180
days of the date of enactment of this Act with the Department
of the Treasury, Financial Management Service, Washington, D.C.
(5) In no event shall any one party be compensated in excess
of $750,000 and the total amount reimbursed pursuant to this
section shall not exceed $3,000,000.
Purpose of the Measure
The purposes of S. 2018, as ordered reported, are to
establish a unique area within the Cibola National Forest in
New Mexico, entitled the T'uf Shur Bien Preservation Trust
Area, and to resolve the Pueblo of Sandia's claim of ownership
of Sandia Mountain, an area within the Cibola National Forest
that includes a portion of the Sandia Mountain Wilderness. S.
2018 would resolve the Pueblo's claim by recognizing certain
specific rights and interests of the Pueblo while maintaining
Federal ownership and management of the national forest and
wilderness lands within the claim area.
Background and Need
The basis for the Pueblo of Sandia's claim to Sandia
Mountain is its interpretation of a 1748 land grant to the
Pueblo from a representative of the King of Spain. In 1848, at
the end of the Mexican-American War, the United States entered
into the Treaty of Guadalupe-Hidalgo with Mexico and thereby
assumed control of a large part of the present American
Southwest, including the area involving the Pueblo's 1748 land
grant. As part of the Treaty, the United States agreed to
protect the Spanish and Mexican land grants that were
acknowledged before American tribunals. The Pueblo's grant was
one of those so acknowledged and, accordingly, was recognized
and confirmed by Congress in 1858 (11 Stat. 374).
While there is no issue as to the validity of the Pueblo's
grant, a dispute does exist as to the location of its eastern
boundary, as it was originally determined in an 1859 survey.
That survey, carried out by an employee of the United States
Government, fixed the eastern boundary along the top of a
foothill on the western slope of Sandia Mountain, rather than
along its crest. The Pueblo has asserted that the United
States' interpretation of the grant at the time of the survey
and the subsequent land patent are in error, and that the true
eastern boundary is the crest of the Mountain (creating an
additional area of approximately 10,000 acres of land).
In the early 1980's, in accordance with its claim, the
Pueblo approached the Department of the Interior seeking a
resurvey of the grant to locate the eastern boundary of the
Pueblo along the crest of Sandia Mountain. In December 1988,
the Solicitor of the Department of the Interior issued an
opinion rejecting the Pueblo's claim. The Pueblo challenged the
opinion in Federal district court and in 1998 the court issued
an order that found the Department's actions arbitrary and
capricious, vacated the 1988 opinion, and remanded the case to
the Department for agency action consistent with the court's
opinion. Pueblo of Sandia v. Babbit, Civ. No. 94-2624 (D.D.C.,
July 18, 1998). The order was appealed but appellate
proceedings were stayed for more than a year while a settlement
was being negotiated.
On April 4, 2000, a settlement agreement was executed
between the United States, the Pueblo, and the Sandia Peak Tram
Company. That agreement was conditioned on congressional
ratification, and remains effective until November 15, 2002. In
November, 2000 the Court of Appeals of the District of Columbia
Circuit dismissed the appeal for lack of jurisdiction, holding
that the District Court's remand order was not final because
the Department of the Interior needed to first reconsider the
1988 opinion. Upon dismissal, the Department proceeded with its
reconsideration in accordance with the 1998 order of the
District Court. On January 19, 2001, the Solicitor issued a new
opinion that concluded that the 1859 survey of the Sandia
Pueblo grant was erroneous and that a resurvey should be
conducted that places the eastern boundary of the grant at the
crest of Sandia Mountain. Implementation of the opinion would
remove approximately 10,000 acres of National Forest and
Wilderness lands from Federal ownership and convey it to the
Pueblo. The Department stayed the resurvey until after November
15, 2002, so that there would be time for Congress to enact
legislation that would implement the settlement.
S. 2018, while not identical to the Settlement Agreement,
incorporates it necessary provisions. These provisions include
several that specifically benefit the Pueblo of Sandia: (1) The
creation of the T'uf Shur Bien Preservation Trust Area
(``Area'') with restrictions on future development within the
Area; (2) a right of the Pueblo to unrestricted access to the
Area for traditional and cultural uses; (3) a right of the
Pueblo to participate in management of the Area; (4) a
compensable interest should Congress ever authorize prohibited
uses in the Area or permanently deny the Pueblo access for
traditional and cultural uses; (5) exclusive jurisdiction by
the Pueblo over certain activities of its members and other
Native Americans within the Area; (6) the non-discretionary
right to have certain Pueblo-owned lands taken into trust by
the United States; and (7) the ability to veto any new land
management activities in the Area. In recognition of the Pueblo
receiving these rights and interests in the Area, S. 2018
resolves with finality the Pueblo's claim to Sandia Mountain by
extinguishing any and all claims related to the Area. The bill
also (1) maintains public ownership and full access to the
National Forest and Wilderness lands within the Pueblo's claim
area; (2) clears title for existing landowners within the claim
area; and (3) grants a number of rights-of-way over the
Pueblo's existing land to protect private property interests
and the public's ongoing use of the Area.
The relative rights and interests contained in S. 2018
represent a negotiated compromise of the Pueblo's land claim
and are preferable to further litigation.
Legislative History
S. 2018 was introduced by Senator Bingaman on March 14,
2002. The Full Committee held a joint hearing with the Indian
Affairs Committee on April 24, 2002. At the business meeting on
July 31, 2002, the Committee on Energy and Natural Resources
adopted an amendment in the nature of a substitute and ordered
S. 2018, as amended, favorably reported.
Committee Recommendation
The Committee on Energy and Natural Resources, in open
business session on July 31, 2002, by a voice vote of a quorum
present, recommends that the Senate pass S. 2018, if amended as
described herein.
Committee Amendments
During the consideration of S. 2018, the Committee adopted
an amendment in the nature of a substitute. The substitute
contains a number of changes that address concerns raised
during the joint hearing by parties whose interests are
affected by the settlement of the Pueblo's land claim.
A major change in the substitute amendment is the
elimination of a provision that expressly ratifies and confirms
the settlement agreement and management plan negotiated between
the Pueblo, the United States, and the Sandia Mountain Tram
Company. Several new subsections were added to incorporate
several key provisions from those documents. Most
significantly, a new section was added to address the Forest
Service's management of the newly created T'uf Shur Bien
Preservation Trust Area. Also, in section 3, new definitions
were added for ``existing uses and activities,'' ``modified
uses and activities,'' and ``new uses or activities.'' These
terms are important to determine the application of the
Pueblo's right to consent to, or deny consent to, new uses or
activities within the Area. Examples of ``existing uses or
activities'' include the following recreational activities: the
La Luz Run, running, jogging, hand gliding, parasailing, back-
country camping, meditation, spiritual renewal, religious
observances, picnicking, cross-country skiing, trapping,
interpretation education, hiking, biking, rock climbing, bird
watching, wildlife viewing, walking, dog walking, bow hunting,
snow shoeing, driving, skating, sledding, horseback riding,
photography, painting, sketching, and geo-caching. Some
recreational activities require special use authorizations and
some do not. To the extent the Sandia Peak Tram Company
requires access to lands not described in the December 1, 1993,
Special Use Permit, but within the non-wilderness area adjacent
to the tram line, for maintenance or equipment replacement,
access to and use of those lands shall be deemed an ``existing
use.'' The Forest Service will retain its authority to regulate
all existing uses and, where appropriate, to modify, suspend,
or revoke all special use authorizations. ``New uses or
activities'' may include: a new trail, trail head, road, picnic
area, parking lot, or significant new structure or facility in
support of these features; new recreation or other activities
not occurring in the Area on the date of enactment of the Act
but otherwise permissible in National Forest and wilderness
areas; and new special use authorizations and new rights-of-
way.
Several changes were also made so that S. 2018 more closely
tracked the settlement agreement. In section 4, a provision
providing the counties of Bernalillo and Sandoval with the same
veto power as the Pueblo over new uses or activities was
deleted. In section 9, a provision was inserted to direct the
Secretary of the Interior, as a non-discretionary matter, to
take a large undeveloped tract of land owned by the Pueblo into
trust for its benefit. Finally, the substitute amendment
deletes a provision directing the Forest Service to transfer to
the Pueblo two small lots located in the subdivided portion of
the Evergreen Hills subdivision but adds a subsection
authorizing the transfer of the Piedra Lisa tract to the Pueblo
should the Forest Service every acquire it from the existing
owner.
Other significant changes include a provision that amends
the Federal Land Policy and Management Act so that if one
Federal agency seeks to correct a Federal land patent or other
conveyance document that would affect the jurisdiction of
another Federal agency, the affected agency must approve the
correction. Finally, a subsection has been added that directs
the Secretary of the Treasury to reimburse the parties and
certain affected landowners involved with the Pueblo of Sandia
v. Babbitt litigation for costs directly incurred as a result
of the litigation and settlement of the Pueblo's land claim
against the Federal Government. There are other clarifying
changes added in the substitute amendment, which is explained
in detail in the section by section analysis, below.
Section-by-Section Analysis
Section 1 provides the short title, the ``T'uf Shur Bien
Preservation Trust Area Act''.
Section 2 contains one finding and three purposes for the
Act.
Section 3 defines terms used in the Act.
Section 4, subsection (a) establishes a new management
area, named the ``T'uf Shur Bien Preservation Trust Area
(``Area''), totaling approximately 9,980 acres within the
Cibola National Forest and the Sandia Mountain Wilderness in
New Mexico. This subsection also sets forth the reasons for
establishing the Area.
Subsection (b) states that the Forest Service shall
continue to administer the Area as part of the National Forest
System pursuant to all applicable law.
Subsection (c) provides exceptions and clarifications to
the Forest Service's administration of the Area and are self-
explanatory.
Subsection (d) defines the Area and provides a map
reference.
Subsection (e) prohibits the United States from conveying
or exchanging any portion of the Area without specific
authorization by Congress.
Subsection (f) states that no use prohibited by the
Wilderness Act (as of the date of enactment of this Act) may
occur in the Wilderness portion of the Area; nor may gaming,
mineral production, timber production, or any new uses or
activities to which the Pueblo objects, occur anywhere in the
Area. This subsection also closes the Area to the location of
mining claims pursuant to the Mining Law of 1872.
Subsection (g) clarifies that nothing in this Act affects
the boundaries of, or repeals, the Sandia Mountain Wilderness
or the Cibola National Forest. In addition, this subsection
clarifies that establishing the Area does not in any way modify
the existing boundary of the Pueblo grant.
Section 5, subsection (a) sets forth the Pueblo's rights
and interests in the Area and are self-explanatory.
Subsection (b) states that, except as provided in
subsection 5(a)(4) relating to traditional and cultural use of
the Area by the Pueblo, the Forest Service shall continue to
administer access to and use of the Area for all other
purposes.
Subsection (c) requires the United States to compensate the
Pueblo if a future Act of Congress diminishes the wilderness
and national forest designation of the Area by authorizing a
use prohibited by section 4(f) or permanently denies the Pueblo
access for any traditional and cultural uses.
Section 6, subsection (a) states that the Pueblo's rights
and interests in the Area do not include the ability to sell,
lease or exchange any lands in the Area; any exemption from
applicable Federal wildlife protection laws; any right to
engage in any activity or use prohibited in section 4(f); or
any right to exclude persons or governmental entities from the
Area.
Subsection (b) provides that no person who exercises
traditional and cultural use rights as authorized in section
5(a)(4) may be prosecuted for a Federal wildlife offense
requiring proof of a violation of a State law or regulation.
Section 7 provides generally for management of the Area by
the Forest Service, including consultation with the public and
the Pueblo, procedures for consent by the Pueblo, and
resolution of disputes. The provisions are self-explanatory.
Section 8, subsection (a) allocates jurisdiction over
crimes committed in the Area.
Subsection (9) allocates civil jurisdiction in the Area.
Section 9, subsection (a) excludes three subdivisions from
the Area (totaling approximately 400 acres or about 4% of the
Area). The subsection further clarifies that none of the
Pueblo's jurisdiction extends over these private lands.
Accordingly, the jurisdiction of the State of New Mexico and
local public bodies continue in effect. An exception to the
State's jurisdiction is made for a non-subdivided 35 acre tract
of land owned in fee by the Pueblo in the Evergreen Hills
subdivision. The Secretary of the Interior is directed to take
this tract into trust for the Pueblo. No development is
allowed, however, as the 35 acre tract is subject to all
limitations on use pertaining to the Area contained in the Act.
Subsection (b) excludes the Piedra Lisa inholding
(approximately 160 acres) from the Area unless it is
subsequently acquired by the Forest Service.
Subsection (c) excludes certain facilities on the crest of
Sandia Mountain from the Area and recognizes the pre-existing
jurisdictional status of those lands.
Subsection (d) excludes certain lands described in an
existing special use permit from the Area and recognizes the
pre-existing jurisdictional status of those lands.
Subsection (e) excludes the La Luz tract, owned by the
Pueblo, from the Area. The subsection also directs the
Secretary of the Interior to take this trace of land into trust
for the Pueblo. There is also a clause directing the Secretary
to take the Piedra Lisa tract into trust for the Pueblo in the
event it acquires that land. All land taken into tract pursuant
to the subsection is subject to the limitations on use
pertaining to the Area contained in the Act.
Subsection (f) recognizes a right of access that landowners
in the Evergreen Hills subdivision have over Forest Service
Road 333D. The subsection requires the Secretary of Agriculture
to maintain the road in adequate condition in accordance with
section 1323(a) of the Alaska National Interest Lands
Conservation Act (16 U.S.C. 3210).
Subsection (g) expressly recognizes that other Pueblo-owned
lands within the subdivisions are excluded from the Area.
Subsection (h) requires the Secretary of the Interior to
grant (l) irrevocable rights of way to Bernalillo County for
identified roads with the condition that such rights of way may
not be expanded without the Pueblo's written consent, and (2)
irrevocable utility rights of way across Pueblo lands to
service providers serving the subdivisions.
Subsection (i) requires the Secretary of the Interior to
grant to the Forest Service irrevocable rights way for portions
of identified trails that cross Pueblo land.
Section 10(a) permanently extinguishes, except for the
rights and interests in and to the Area specifically recognized
in sections 4, 5, 8, and 9, all Pueblo claims in and to lands
in the Area.
Subsection (b) permanently extinguishes any Pueblo claims
to the subdivisions and the Piedra Lisa tract.
Subsection (c) permanently extinguishes any Pueblo claims
in and to the lands described in the special use permit and the
lands on which the crest facilities are located.
Subsection (d) references that the Pueblo has agreed to the
extinguishment of its claims pursuant to subsections (a), (b),
and (c).
Subsection (e) states that the recognition of the Pueblo's
rights and interests in this Act constitutes adequate
consideration for the Pueblo's agreement to the extinguishment
of the Pueblo's claims in this section and the right-of-way
grants contained in section 9. Subsection (e) provides that it
is the intent of Congress that those rights and interests may
only be diminished by a future Act of Congress specifically
diminishing such rights, with express reference to this Act.
Section 11, subsection (a) states that this Act recognizes
only enumerated rights and interests, and clarifies that no
additional rights, interests, obligations, or duties shall be
created by implication.
Subsection (b) provides that this Act does not modify or
affect any presently existing valid private property rights
that are associated with private lands in the Area; nor are
such rights subject to the Pueblo's right to withhold consent
to new uses in the Area.
Subsection (c) states that this Act shall not be construed
as precedent for any other situation involving management of
the National Forest System.
Subsection (d) precludes anything in this Act, except as
provided in subparagraph 8(b)(3)(B), to be construed as
affecting the responsibilities of the State of New Mexico with
respect to fish and wildlife, including the regulation of
hunting, fishing, or trapping in the Area.
Subsection (e) amends the Federal Land Policy and
Management Act to require that any corrections made to patents
or documents of conveyance pursuant to 43 U.S.C. 1746, that
affect lands administered by another Federal agency, first
require the approval of the head of such other agency.
Section 12, subsection (a) provides that judicial review to
enforce the provisions of this Act is allowed to the extent
permitted under the Administrative Procedure Act.
Subsection (b) provides for a limited waiver of sovereign
immunity against the Pueblo by allowing suits for declaratory
judgment or injunctive relief under the Act.
Section (c) provides that venue for any suit shall lie only
in the United States District Court for the District of New
Mexico.
Section 13, states that the Act shall take effect
immediately upon enactment.
Section 14, subsection (a) authorized the appropriations of
such sums as may be necessary to carry out this Act, including
the acquisition of land.
Subsection (b) requires the Secretary of Agriculture to
complete a survey of the Area within one year of the date of
enactment of this Act and states that the Secretary may accept
contributions from the Pueblo or other persons to complete a
survey of the Area.
Subsection (c) authorizes the Secretary of Agriculture to
convey ownership of the Piedra Lisa tract to the Pueblo if the
Secretary subsequently acquires the property. The conveyance
shall take place through an exchange of land acceptable to the
Secretary, although the Secretary may make or accept a cash
equalization payment in excess of 25 percent of the total value
of the lands or interests transferred out of Federal ownership.
Subsection (d) authorizes the Secretary of Agriculture to
acquire lands owned by the Pueblo within the Evergreen Hills
Subdivision or any other privately held lands inside of the
exterior boundaries of the Area.
Subsection (e) directs the Secretary of the Treasury to
reimburse the Pueblo, county of Bernalillo, New Mexico, and any
person who owns or has owned property inside of the exterior
boundaries of the Area, for actual and direct costs incurred
(and not otherwise reimbursed) due to participation in the
litigation or settlement of the Sandia Pueblo's claim to Sandia
Mountain. The reimbursement is limited to a maximum of $750,000
per party and, in total, may not exceed $3,000,000.
Cost and Budgetary Considerations
The following estimate of the cost of this measure has been
provided by the Congressional Budget Office:
U.S. Congress,
Congressional Budget Office,
Washington, DC, August 21, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 2018, the T'uf Shur
Bien Preservation Trust Area Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Megan
Carroll.
Sincerely,
Barry B. Anderson
(For Dan L. Crippen, Director).
Enclosure.
S. 2018--T'uf Shur Bien Preservation Trust Area Act
Summary: S. 2018 would resolve a land dispute between the
federal government and the Pueblo of Sandia, a federally
recognized Indian tribe. CBO estimates that enacting S. 2018
would increase direct spending by $3 million in 2003 and
governmental receipts by less than $500,000 a year. Because the
bill would affect direct spending and receipts, pay-as-you-go
procedures would apply.
S. 2018 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
The provisions of this bill are generally consistent with a
settlement agreement signed by the Pueblo of Sandia and would
impose no costs on the tribe other than those it would incur
voluntarily as a party to the agreement.
Background and summary of major provisions: The underlying
dispute giving rise to S. 2018 involves the Pueblo of Sandia's
claim to roughly 10,000 acres of federal lands currently
administered by the Forest Service as part of the Sandia
Mountain Wilderness and Cibola National Forest in New Mexico.
The tribe believes that the federal government mistakenly
excluded those lands from the tribe's original land grant due
to an inaccurate land survey conducted by the Department of the
Interior in 1859. The tribe filed an action against the federal
government in 1994. Several other parties, including local
governments, private landowners, and a private company
subsequently became involved in that litigation. While the case
was pending, all of the parties began to negotiate a settlement
agreement which eventually was signed in April 2000, but only
by the tribe, the federal government, and a private company.
S. 2018 would largely implement that settlement agreement.
In doing so, the bill would extinguish the tribe's claims to
the disputed lands. In exchange, the bill would establish the
T'uf Shur Bien Preservation Trust Area on 9,890 acres of those
lands. The Forest Service would retain ownership of the
proposed area and continue to manage it as part of the national
forest system, but S. 2018 would give the Pueblo of Sandia
certain rights to use the area. In addition, the bill would
direct the Forest Service to manage the proposed area in
consultation with the tribe, establish a process for resolving
disputes over land-use decisions, and specify other conditions
for future management of the area. S. 2018 also would direct
the Secretary of the Interior to take into trust on behalf of
the Pueblo of Sandia certain lands currently owned by the
Tribe. Finally, S. 2018 would provide up to $3 million in new
direct spending authority for the Secretary of the Treasury to
reimburse certain costs incurred by participants in court
proceedings related to the land dispute.
Estimated cost to the Federal Government: The estimate
budgetary impact of S. 2018 is shown in the following table.
The costs of this legislation fall within budget function 300
(natural resources and environment).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------
2003 2004 2005 2006 2007
----------------------------------------------------------------------------------------------------------------
CHANGES IN DIRECT SPENDING \1\
Estimated budget authority......................................... 3 0 0 0 0
Estimated outlays.................................................. 3 0 0 0 0
----------------------------------------------------------------------------------------------------------------
\1\ S. 2018 also would affect revenues and spending subjects to appropriation, but CBO estimates that such
effects would not be significant in any year.
Basis of estimate: For this estimate, CBO assumes that S.
2018 will be enacted by the end of fiscal year 2002. CBO
estimates that the bill would increase direct spending by $3
million in 2003 and would have a negligible effect on
governmental receipts (revenues). We also estimate that
administrative costs of federal agencies would increase by less
than $500,000 annually, assuming appropriation of the necessary
amounts.
Direct spending
S. 2018 would authorize the Secretary of the Treasury to
spend, without further appropriation, up to $3 million to
reimburse parties to the lawsuit brought against the federal
government by the Pueblo of Sandia for certain costs incurred
to participate in that lawsuit. Based on information from the
tribe and other eligible parties, CBO estimates that the
Secretary would spend $3 million for such reimbursements in
2003.
S. 2018 specifies that any reimbursements made pursuant to
the bill would be in lieu of amounts that might otherwise be
paid under the Equal Access to Justice Act. That act authorizes
the federal government, under certain circumstances, to
reimburse legal fees and expenses of parties who successfully
sue the federal government. Under current law, the tribe is the
only party that might qualify for reimbursements under that
act, but whether the tribe would receive such reimbursements
and when that might occur is very uncertain. Hence, CBO assumes
that any forgone spending under the Equal Access to Justice Act
would be negligible, and we estimate that the net increase in
direct spending under S. 2018 would total about $3 million.
Revenues
S. 2018 would authorize the Secretary of Agriculture to
accept and use contributions from the Pueblo of Sandia or other
nonfederal entities for certain administrative activities and
the general benefit of the proposed trust area. Based on
information from the Forest Service, we estimate that any cash
contributions, which are recorded on the budget as governmental
receipts, would not be significant in any year.
Spending, subject to appropriation
Based on information from the Forest Service and the
Department of the Interior, CBO estimates that those agencies
would spend less than $500,000 a year to implement S. 2018,
assuming appropriation of the necessary amounts. According to
the Forest Service, designating the T'uf Shur Bien Preservation
Trust Area and formalizing the process of consulting with the
tribe on the management of lands within that area would not
significantly affect the agency's costs to manage them.
Likewise, the Department of the Interior expects that taking
lands into trust on behalf of the tribe would not significantly
increase federal costs.
Pay-as-you-go considerations: The Balanced Budget and
Emergency Deficit Control Act sets up pay-as-you-go procedures
for legislation affecting direct spending or receipts. The net
changes in outlays and governmental receipts that are subject
to pay-as-you-go procedures are shown in the following table.
----------------------------------------------------------------------------------------------------------------
By Fiscal Year, in Millions of Dollars--
---------------------------------------------------------------------
2003 2004 2005 2006 2007 2008 2009 2010 2011 2012
----------------------------------------------------------------------------------------------------------------
Changes in outlays........................ 3 0 0 0 0 0 0 0 0 0
Changes in receipts....................... 0 0 0 0 0 0 0 0 0 0
----------------------------------------------------------------------------------------------------------------
Intergovernmental and private-sector impact: S. 2018
contains no intergovernmental or private-sector mandates as
defined in UMRA. The provisions of this bill are generally
consistent with a settlement agreement signed by the Pueblo of
Sandia, and would impose no costs on the tribe other than those
it would incur voluntarily as a party to that agreement.
Estimate prepared by: Federal costs: Megan Carroll; Impact
on State, Local, and Tribal Governments: Marjorie Miller;
Impact on the Private Sector: Cecil McPherson.
Estimate approved by: Robert A. Sunshine, Assistant
Director for Budget Analysis.
Regulatory Impact Evaluation
In compliance with paragraph 11(b) of rule XXVI of the
Standing Rules of the Senate, the Committee makes the following
evaluation of the regulatory impact which would be incurred in
carrying out S. 2018. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses. The bill creates certain rights and interests
within an area of the Cibola National Forest for the benefit of
Sandia Pueblo in return for a final and permanent resolution of
the Pueblo's ownership claim to Sandia Mountain.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little additional paperwork would result from the enactment
of S. 2018, as ordered reported.
Executive Communications
The pertinent legislative report received by the Committee
on Energy and Natural Resources from the Department of the
Interior setting forth Executive agency recommendations
relating to S. 2018 is set forth below:
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, May 1, 2002.
Hon. Jeff Bingaman,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: This letter sets forth the views of the
Department of the Interior on S. 2018, a bill to create the
T'uf Shur Bien Preservation Trust Area (``Area'') within the
Cibola National Forest. S. 2018 would implement, with some
modifications, the Agreement of Compromise and Settlement
signed by the Pueblo of Sandia (``Pueblo''), the Sandia Peak
Tram Company, and the United States on behalf of the
Departments of Agriculture, Justice, and the Interior on April
4, 2000. The questions of ownership and use of approximately
10,000 acres in the Cibola National Forest have been the
subject of debate for nearly 20 years in both the judicial and
executive branches of government and among the affected
parties. The Administration supports a legislative solution and
is willing to work with the New Mexico delegation and members
of the Committees to that end.
I have reviewed relevant portions of the record in both the
Executive Branch and the Judicial Branch. I have recently taken
the opportunity to look at the Area from both the ground and in
the air and I have talked to representatives of the parties
most affected by the legislative proposal. I quickly concluded
what is perhaps obvious to the Committees; all sides are tired
of litigating this matter and the non-federal parties are
concerned about the uncertainty of the administrative process
should the settlement agreement lapse in November 2002. I found
broad support for a legislative solution. The following
comments are offered in a spirit of reasonable compromise
toward finality of the dispute.
Background
The Pueblo of Sandia claims the western face of Sandia
Mountain, which is part of the Sandia Mountain Wilderness to
the northeast from Albuquerque, New Mexico. The Pueblo of
Sandia's claim is based on a 1748 land grant from Spain to the
Pueblo and an 1858 Act of Congress that confirmed the grant.
The 1858 Act directed that a survey of the grant be made and a
patent issued to the Pueblo. The survey was conducted in 1859
and a patent was issued in 1864. The Pueblo claims that
approximately 10,000 acres were mistakenly excluded from the
grant due to a survey error. This area is now part of the
Cibola National Forest and the Sandia Mountain Wilderness and
extends generally from the foothills to the crest of the main
ridge of the Sandia Mountains.
In 1983, the Pueblo first approached the Department
requesting a resurvey of their Spanish land grant and the
issuance of a new patent claiming the eastern boundary of the
grant had been incorrectly surveyed in 1859. In 1988, Solicitor
Ralph Tarr issued an Opinion which found that no resurvey was
warranted.
In 1994 the Pueblo sued the Department of the Interior and
the Department of Agriculture, claiming that the Department of
the Interior's refusal to resurvey the grant was arbitrary and
capricious. The United States District Court for the District
of Columbia vacated the Tarr Opinion and remanded the issue to
the Department in 1998. An appeal was filed, but proceedings
were stayed for over a year pending mediation efforts among the
Pueblo, the Sandia Peak Tram Company, the United States, the
City of Albuquerque, the County of Bernalillo, and the Sandia
Mountain Coalition. These mediation efforts resulted in the
April 2000 Agreement of Compromise and Settlement, which was
signed by the Pueblo, the Sandia Peak Tram Company, and the
United States (represented by the Departments of Agriculture,
Interior, and Justice). In November 2000 the Court of Appeals
of the District of Columbia dismissed the appeal on the grounds
that it lacked jurisdiction because the District Court's
decision was not a final decision.
On January 19, 2001, Solicitor John Leshy issued a new
opinion which concluded that the 1859 survey of the Pueblo of
Sandia's grant was erroneous. Mr. Leshy determined that a
resurvey was warranted, but recommended that the Department
conduct a resurvey of the grant only if the April 2000
Agreement of Compromise and Settlement was not ratified by
Congress. The Agreement binds the parties until November 15,
2002, and will become permanent only through the enactment of
legislation.
S. 2018
Pursuant to the terms of S. 2018, Congress would authorize
the establishment of the Area within the Cibola National Forest
and the Sandia Mountain Wilderness. Title to the Area would
remain in the United States while granting unrestricted access
to the Area to the members of the Pueblo or the members of any
other federally recognized Indian tribe authorized by the
Pueblo to enter the Area for traditional and cultural uses. In
addition, the Sandia Mountain Wilderness would be preserved in
perpetuity as part of the Cibola National Forest and continue
to be administered by the Secretary of Agriculture through the
Forest Service. Gaming, mineral, or timber production in the
Area would be prohibited under the bill.
Under S. 2018, the Pueblo, as well as Bernalillo and
Sandoval Counties, would have the right to give consent or
withhold consent to new uses of the Area. The Pueblo would also
be given the right to consultation regarding modified uses and
would have exclusive authority to administer access to the Area
for traditional and cultural uses by its members or the members
of any other federally recognized Indian tribe.
The legislation would also extinguish the Pueblo's claim of
title to the Area and would therefore clear the titles of
private landowners in the Area. S. 2018 would grant the Pueblo
the right to compensation, as if it were an owner in fee, if a
subsequent act of Congress were to diminish the wilderness and
National Forest character of the Area.
S. 2018 grants irrevocable rights of way in perpetuity to
the County of Bernalillo for roads in Sandia Heights South
Subdivision and Juan Tabo Canyon and the Crest Spur Trail
(which crosses the La Luz tract). Modification or expansion of
the rights of way for those roads would be subject to the
Pueblo's written consent. The Secretary of the Interior would
be required to grant irrevocable rights of way in perpetuity
across Pueblo lands in existing utility corridors for utilities
providing services to the private landowners in the
subdivisions on Sandia Mountain.
The aerial tramway, along with the crest facilities on
Sandia Mountain, are excluded from the Area under the bill.
Thus, the Pueblo would not have any civil, criminal, or
administrative jurisdiction over the Area. However, the La Luz
tract, which is owned by the Pueblo, would be transferred to
the United States and held in trust for the Pueblo, subject to
all limitations on use pertaining to the Area.
The bill would not provide for the United States to take
into trust the property owned by the Pueblo in the Evergreen
Hills subdivision, but instead directs the Secretary of
Agriculture to convey NFS land within the subdivision to the
Pueblo.
Conclusion
The United States, including the Department of the
Interior, is bound by the existing Settlement Agreement until
November 2002. It is the Department's view that the best way,
and possibly the only way, to resolve this longstanding dispute
is through legislation. To that end, we have attached some
detailed comments on S. 2018.
An identical letter has been sent to the Senate Committee
on Indian Affairs.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
William G. Myers III,
Solicitor.
Attachment
In addition to our letter, we are providing the following
detailed comments:
Section and Comment
Section 4(c)(3)--Bernalillo and Sandoval Counties are
provided the right to consent or withhold consent to new uses
in the Area. This provision parallels the right given to the
Pueblo in Section 5(a)(30(i). The Administration supports local
governmental involvement in federal land management decisions.
It is not clear, however, that either of the two counties would
exercise this authority if given to them. If the authority to
veto new uses remains in the bill, those uses would be defined
with particularity in the legislation so that both the federal
agency and the party exercising the right have some direction
from Congress as to what is intended. A definition of new uses
is contained in the Management Plan which is an attachment to
the Settlement Agreement, and this would be a good place to
start.
Section 12--The confusion and concern arising out of the
lack of a definition of new uses, as discussed above,
illustrate the concerns generally with Section 12. That section
ratifies and confirms the Settlement Agreement and Management
Plan. The Administration believes that it would be better to
legislate all necessary provisions of the Settlement Agreement
and the Management Plan and forego incorporating these
documents by reference. Otherwise, the potential for protracted
litigation could arise after good-faith efforts to reconcile
the law, the Agreement, and the Plan fail.
Section 4(g)--The last sentence of this section could be
clarified if rewritten to read, ``Establishment of the Area
does not in any way modify the existing boundary of the Pueblo
grant as depicted on the map defined at Section 3(g).'' This
will eliminate any confusion as to the definition of the
``boundary'' which has been at the heart of the dispute for
nearly twenty years.
Section 7(b)(3)(B)--This section is one of several sections
that uses the phrase ``traditional and cultural.'' Further
definition of this phrase would be useful.
Section 14(d)--The first sentence regarding land
acquisition is ambiguous because it could be read to encompass,
for example, the La Luz tract, as ``any other privately held
lands within the Area.'' Under Section 8(e), the La Luz tract
cannot be acquired by the Secretary of Agriculture because this
tract is transferred to the United States to be held in trust
for the Pueblo and to be administered by the Secretary of the
Interior.
Other Comments--The Committee should consider a new section
that would state that, except as provided by Section 5(c)(1),
nothing shall be construed in this Act as a legislative
exercise of the power of eminent domain.
Some parties have indicated that use of the term ``Trust''
in the title of the bill raises the question of whether the
entire Area is to be held in trust by the United States,
similar to the La Luz tract in Section 8(e). This clearly is
not the intent, as explained in the Chairman's remarks at page
S1940 of the March 14, 2002, Congressional Record. However, to
address any concerns in this regard, either ``Trust'' should be
removed from the title and similar references in the bill or
the Chairman's explanation should be incorporated into the
bill.
------
In addition, the testimony provided by the Department of
Agriculture and the Department of Justice at the joint
committee hearing follows:
Statement of Nancy Bryson, General Counsel, Department of Agriculture
Mr. Chairman and Members of the Committees: My name is
Nancy Bryson, General Counsel, Department of Agriculture. Thank
you for the opportunity to testify today on S. 2018, the ``T'uf
Shur Bien Preservation Trust Area Act.'' This bill proposes to
resolve the longstanding land title dispute of the Pueblo of
Sandia with the Federal Government concerning rights arising
under a 1748 land grant from the King of Spain and subsequently
recognized by Congress. The Administration supports a
legislative solution and is willing to work with the New Mexico
delegation, and Members of the Committees to achieve that end.
The T'uf Shur Bien Preservation Trust Area, as designated
by S. 2018, would consist of approximately 10,000 acres with
the Cibola National Forest. Located a few miles northeast of
Albuquerque, the claim area lies within both Bernalillo and
Sandoval Counties. Much of the claim area also is within the
Sandia Mountain Wilderness designated by the Congress in the
Endangered American Wilderness Act of 1978 (P.L. 95-237). The
area is one of natural beauty and solitude, and provides
significant opportunities for public recreation. It also is an
area of religious and cultural significance for Native
Americans and others.
This title dispute has been ongoing for almost two decades
during which time there have been opinions regarding title to
the land by the General Counsel of the Department of
Agriculture and the Solicitor of the Department of the
Interior, as well as litigation in U.S. District Court. A
decision remanding the matter to the Department of the Interior
was appealed to the D.C. Circuit by the government on
jurisdictional grounds.
Between 1998 and 2000, while the case was pending in the
D.C. Circuit, a mediated effort to settle the Sandia land claim
was undertaken among all parties to the litigation including
the Pueblo, the Federal Government, a coalition of private
landowners and recreation groups, the Sandia Peak Tram Company,
Bernalillo County and the City of Albuquerque. All the parties
worked hard in a good faith effort to resolve this matter, and
we commend those efforts. Ultimately, a Settlement Agreement
was reached in April 2000, buy only among the Pueblo, the
Sandia Peak Tram Company and the Federal Government. The City,
the County, and the coalition had withdrawn from the
negotiations.
With some modifications, S. 2018 essentially implements the
2000 Settlement Agreement. I will concentrate my remarks
primarily in those areas where S. 2018 goes beyond the
Settlement Agreement, where the provisions of the bill are
unclear to us, or where S. 2018 can improve on the efforts made
to date to resolve this dispute.
We see at least three areas in which the bill goes beyond
the settlement based on our review to date. First there is a
provision for a mandated land exchange within a certain time.
The Settlement Agreement does not include such a provision and
we do not think one is appropriate as existing land exchange
mechanisms are available. Second, the bill adds management
rights for Sandoval and Bernalillo Counties. We do not disagree
with this. The Department of Agriculture strongly supports
involving tribal, state, and local governments in land
management decisions that affect them. However, we think the
change does require an expansion of both the Settlement
Agreement and the Management Plan.
In addition, the bill requires the Department to do a
survey of the boundary area within 12 months. This new
responsibility creates significant issues for the Department on
which we would like to work with the Committee.
Our second comment is that it would be very helpful to have
the legislative language expressly incorporate the Settlement
Agreement and Management Plan rather than by reference.
Although the United States generally supports incorporation of
such settlements by reference, such incorporation creates the
potential for conflict in this case where the language of the
bill and the Settlement Agreement and Management Plan conflict.
For example, the bill provides that the area will be managed
under laws and regulations applicable to the National Forest
System. These include the National Forest Management Act. The
Settlement Agreement, however, specifically exempts the T'uf
Shur Bien Preservation Trust area from the National Forest
Management Act. This area will not be subject to NFMA, but
rather to the procedural and substantive requirements
established in the Settlement Agreement and Management Plan.
The legislation needs to set forth these provisions very
clearly, particularly given the potential for confusing,
overlapping and sometimes conflicting management. The parties
have all expressed their interest in limiting future
litigation. We think the likelihood of this can be enhanced by
resolving potential ambiguities in the legislation itself.
Finally, we believe the language in section 10(c) of the
bill, clarifying that this Act is uniquely suited to resolve
the Pueblo's claim, is a crucial element of any legislative
resolution. This agreement, however, should not be considered
precedent for any other situation involving National Forest
System lands.
Although this bill, if enacted, will resolve this
particular dispute, it is important to emphasize that all
settlements of Indian claims, including settlements that
involve federal lands, must be ratified by Congress [pursuant
to 25 U.S.C. 177]. Should Congress decide to delegate
settlement authority regarding such claims to administration
officials, however, the land management agency with
jurisdiction over the land should have primary authority in
determining whether the agency's lands would be conveyed as
part of the settlement. We believe that with respect to
National Forest System lands, responsibility should reside in
the Department of Agriculture.
The Department of Agriculture would like to work with the
Committee to finally resolve this matter. We would like to find
a resolution that addresses the identified concerns, maintains
the character and beauty of the Sandia Mountain Wilderness, and
protects and preserves the cultural and religious values of the
area.
This concludes my statement. I would be happy to answer any
questions.
------
Statement of Thomas L. Sansonetti, Assistant Attorney General,
Environment and Natural Resources Division, Department of Justice
Mr. Chairman and Members of the Committee, I am Tom
Sansonetti, Assistant Attorney General for the Environment and
Natural Resources Division of the Department of Justice. Thank
you for the opportunity to testify before you today on S. 2018,
Senator Bingaman's bill that would create the T'uf Shur Bien
Preservation Trust Area within the Cibola National Forest and
attempt to effectuate the settlement agreement entered into by
the Pueblo of Sandia, the United States, and the Sandia Peak
Tram company on April 4, 2000. This matter is of great
importance to the Pueblo of Sandia, the people of the State of
New Mexico, and the federal government. In my testimony today,
I would like to give you some background on the history of the
Pueblo's land claim and briefly discuss the settlement
agreement.
background
The underlying dispute giving rise to the settlement
agreement and S. 2018 addresses the Pueblo's claim to a 10,000
acre tract of land, now administered by the U.S. Forest Service
as part of the Sandia Mountain Wilderness and Cibola National
Forest. The Pueblo believes this tract of land was erroneously
excluded from the government's recognition of the Pueblo's
ancient Spanish land grant due to an inaccurate survey
conducted by the Department of the Interior in 1859.
The Pueblo is located on the east side of the Rio Grande
north of Albuquerque, New Mexico. In 1748, the Spanish colonial
government granted a parcel of land to the Pueblo. An 1858 Act
of Congress confirmed the grant and directed the Commissioner
of the Land Office to conduct a survey to designate the exact
boundaries of the parcel. An 1859 survey of the Pueblo Grant,
known as the Clements survey, showed the eastern boundary along
the top of a foothill on the western slope of Sandia Mountain,
rather than on the crest of the mountain. In 1864, President
Abraham Lincoln issued a patent to the Pueblo which adopted the
metes-and-bounds description of the 1859 survey.
The Pueblo first contacted the Department of the Interior
in 1983, contending that the 1859 survey had mistakenly set the
wrong boundary, excluding about 10,000 acres, and that the 1864
patent was therefore erroneous. The Pueblo requested a resurvey
of their land grant and the issuance of a new patent
designating the true eastern boundary as the crest of the
mountain. In December 1988, the Department of the Interior
Solicitor Ralph Tarr issued an Opinion, in which Secretary
Donald Hodel concurred, denying the Pueblo's claim that the
eastern boundary of the grant should be resurveyed and located
along the crest of the Sandia Mountain.
In 1994, the Pueblo filed an action against the Secretaries
of the Interior and Agriculture in the U.S. District Court for
the District of Columbia. The Pueblo sought an injunction
requiring the Department of the Interior to correct the
allegedly erroneous boundary.
In January 1995, several individual landowners and the
Sandia Mountain Coalition, an unincorporated association of
landowners living in subdivisions within the boundaries of the
National Forest, moved for and were granted status as
intervenor-defendants in the case. Two months later, the Pueblo
amended its complaint to expressly disclaim any right, title,
or interest in land held in private ownership within the
disputed tract. The County of Bernalillo was also granted
intervenor-defendant status, and the City of Albuquerque and
the Sandia Peak Tram Company became involved as amicus curiae.
In July 1998, the district court issued an Opinion and
Order setting aside the Tarr Opinion and remanding the matter
to the Department of the Interior for further proceedings. The
court found that the Department's decision not to resurvey the
grant boundary was arbitrary and capricious because it accorded
insufficient weight to the canon of construction that
ambiguities should be construed in favor of Indians and because
it over-emphasized the presumption of survey regularity.
Thereafter, in August and September 1998, the United States
and the intervenor-defendants filed notices of appeal from the
district court's decision with the D.C. Circuit. However, after
the appeals were filed, all of the parties involved in the
litigation decided to engage in a cooperative effort to resolve
the case without further litigation. In October 1998, the D.C.
Circuit granted a motion to hold the appeals in abeyance
pending these settlement negotiations.
Negotiations began in earnest in December 1998, when the
federal agencies, and the Pueblo, County, Coalition, City, and
Tram representatives inaugurated a formal mediation process
with the assistance of a third-party mediator in New Mexico.
Despite progress being made by the named parties in the lawsuit
over the course of several months, in August 1999 the
intervenor-defendants and the City of Albuquerque withdrew from
the mediation process. Nonetheless, the named parties in the
litigation--the Pueblo and the federal agencies--along with the
Tram Company, continued the negotiation process which
eventually produced a settlement agreement signed by the
parties on April 4, 2000. In November of that year, the appeal
was dismissed by the U.S. Court of Appeals for the District of
Columbia Circuit for lack of appellate jurisdiction. This
decision granted a conditional motion by the United States to
dismiss its appeal, contingent upon the D.C. Circuit actually
ruling that jurisdiction would not exist over an appeal being
pressed solely by the intervenor-defendants.
Also in November 2000, the Pueblo renewed its petition to
resurvey the boundary along the crest of the mountain,
reiterating their lack of interest in the inholdings. In
addition, the County of Benalillo and the Sandia Mountain
Coalition contended that the Clements survey was erroneous in
that the top of the foothill on the western slope of Sandia
Mountain created too large of an area for the Pueblo. In
response to these requests, Interior Solicitor John Leshy
conducted another review, and on January 19, 2001, issued a new
opinion that reconsidered the Tarr Opinion's conclusion.
Solicitor Leshy concluded that the evidence showed that the
Clements survey of the eastern boundary of the Pueblo's land
grant was erroneous and should be set aside and, if necessary,
a resurvey should be conducted. The Opinion acknowledged the
settlement of the Pueblo's claim, which would obviate the need
for a resurvey, and put in abeyance any implementation of the
Opinion unless and until the Congress failed to pass
legislation ratifying the settlement by November 15, 2002.
SETTLEMENT AGREEMENT
The Agreement of Compromise and Settlement among the Pueblo
of Sandia, the Sandia Peak Tram Company, and the United States
on behalf of the Departments of the Interior and Agriculture,
would settle the Pueblo's land claim suit upon ratification by
an Act of Congress. The Settlement addresses many other
important issues pertaining to the management of relevant
portions of the Cibola National Forest, as well as questions of
access across Pueblo lands to privately owned areas in the
vicinity of the claim area.
Some of the highlights of the settlement are as follows:
Creation of the T'uf Shur Bien Preservation Trust Area
The claim area would be renamed the ``T'uf Shur
Bien (a Tiwa term meaning ``Green Reed Mountain'') Preservation
Trust Area and would remain part of the Sandia Mountain
Wilderness and the Cibola National Forest.
The United States would retain title to the Area.
The Area would be established for the following
purposes: to recognize and protect the Pueblo's rights and
interests in and to the Area; to preserve in perpetuity the
wilderness and National Forest character of the Area; and to
respect and assure the public's use and enjoyment of the Area.
Administration of the area by the Forest Service
The Secretary of Agriculture would continue to
administer the Area as wilderness and National Forest under the
Wilderness Act, most federal wildlife-protection laws
(including the Endangered Species Act), other laws applicable
to the National Forest System, and an Area-specific management
plan.
Statutes (including their associated regulations)
administered by the Forest Service, other than the Wilderness
Act and applicable federal wildlife protection laws, do not
apply to Pueblo traditional and cultural uses.
Pueblo rights
The Pueblo's right of access to the Area for
traditional and cultural uses, except for regulation by the
Wilderness Act and applicable federal wildlife protection laws,
as described above, would be compensable if violated.
The Pueblo would have a compensable interest in
the perpetual preservation of the wilderness and National
Forest character of the Area. If Congress ever impaired this
interest by authorizing uses, such as commercial mineral or
timber production, that are banned from the Area by the
ratifying legislation, the Pueblo again would be compensated as
though it held a fee-interest in the affected portion of the
Area.
The Pueblo would have specified, non-compensable
rights to participate in the management of the Area under the
management plan.
The Pueblo would have exclusive authority to
administer access to the Area by other tribes for traditional
and cultural uses.
Rights-of-way
The private landowners, the general public, and
the Forest Service must cross Pueblo land to reach the
subdivisions and the claim area. As part of the settlement, the
Pueblo would grant perpetual rights of way to the County and
the Forest Service for roads, trails, and utilities across
Pueblo lands adjacent to the Area.
Jurisdiction
The ratifying legislation would provide a scheme
for the exercise of government jurisdiction over the Area,
recognizing roles for the United States, the State of New
Mexico, and the Pueblo.
Extinguishment of claims
The settlement would provide for the comprehensive
and permanent extinguishment of the Pueblo's claims to: (a)
Lands within the Area; (b) the subdivisions and other privately
owned tracts; (c) the lands described in the Tram's special use
permit; and (d) all crest facilities and developments such as
the electronic site. The ratifying legislation would clear all
titles, both of the United States and the homeowners.
Withdrawal option
The settlement provides that either the Pueblo or
the United States may withdraw from the Settlement Agreement if
either House of Congress passes ratifying legislation that is
deemed inconsistent with the terms of the Settlement Agreement
in a manner that materially prejudices their individual
interests.
CONCLUSION
The parties in this matter expended a great deal of time
and effort to reach agreement and to produce a document which
resolves many complex issues. The Administration supports a
legislative solution and is willing to work with the New Mexico
delegation and the members of the Committees to achieve that
end.
This concludes my testimony. Mr Chairman, I look forward to
working with you and other members of the Committees on this
legislation and would be pleased to answer any questions you
may have.
Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
the bill S. 2018, as ordered reported, are shown as follows
(existing law proposed to be omitted is enclosed in black
brackets, new matter is printed in italic, existing law in
which no change is proposed is shown in roman):
FEDERAL LAND POLICY AND MANAGEMENT ACT
Public Law 94-579
* * * * * * *
CORRECTION OF CONVEYANCE DOCUMENTS
* * * * * * *
Sec. 316. The Secretary may correct patents or documents of
conveyance issued pursuant to section 208 of this Act or to
other Acts relating to the disposal of public lands where
necessary in order to eliminate errors. In addition, the
Secretary may make corrections of errors in any documents of
conveyance which have heretofore been issued by the Federal
Government to dispose of public lands. Any corrections
authorized by this section which affect the boundaries of, or
jurisdiction over, lands administered by another Federal agency
shall be made only after consultation with, and the approval
of, the head of such agency.
* * * * * * *