[Senate Report 108-229]
[From the U.S. Government Publishing Office]
Calendar No. 439
108th Congress Report
SENATE
2d Session 108-229
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ALBUQUERQUE BIOLOGICAL PARK TITLE CLARIFICATION ACT
_______
March 9, 2004.--Ordered to be printed
_______
Mr. Domenici, from the Committee on Energy and Natural Resources,
submitted the following
R E P O R T
[To accompany S. 213]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 213) to clear title to certain real
property in New Mexico associated with the Middle Rio Grande
Project, 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:
Beginning on page 1, strike line 6 and all that follows
through page 2, line 24, and insert the following:
``SEC. 2. PURPOSE.
``The purpose of this Act is to direct''.
PURPOSE
The purpose of S. 213 is to clear title to certain real
property in New Mexico associated with the Middle Rio Grande
Project, and for other purposes.
BACKGROUND AND NEED
The bill directs the Secretary to issue a quitclaim deed
conveying any right, title, and interest that the United States
may have in the two properties to the city of Albuquerque for
no additional consideration. These properties are key to the
city's plans to develop a Biological Park to serve as an
environmental education center for its citizens. In pursuit of
the project, the city, in 1997, purchased two properties from
the Middle Rio Grande Conservancy District (MRGCD) for
$3,875,000. At the time, it was thought that the properties
were only subject to an easement interest held by the U.S.
Bureau of Reclamation.
In the year 2000, the city's plan was interrupted when the
U.S. Bureau of Reclamation claimed it had actually acquired
ownership of all of MRGCD's property that is associated with
the Middle Rio Grande Project. Reclamation's assertion called
into question the validity of the 1997 transaction between the
city and MRGCD. Both MRGCD and the city dispute the United
States' claim of ownership. This legislation would resolve the
title dispute as it applies only to these two parcels of land.
Reclamation has determined that the two properties are surplus
to the needs of the Middle Rio Grande project.
LEGISLATIVE HISTORY
S. 213 was introduced on January 23, 2003 by Senators
Bingaman and Domenici. The Water and Power Subcommittee held a
hearing on S. 213 on September 23, 2003. S. Hrg. 108-211. At
the business meeting on February 11, 2004, the Committee on
Energy and Natural Resources ordered S. 213, with an amendment,
favorably reported.
During the 107th Congress, a similar measure, S. 2696, was
introduced by Senator Bingaman on June 27, 2002. The
Subcommittee on Water and Power held a hearing on S. 2696 on
July 31, 2002. S. Hrg. 107-853. S. 2696 was reported by the
Committee and passed the Senate by unanimous consent on
November 19, 2003.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTES
The Committee on Energy and Natural Resources, in open
business session on February 11, 2004, by a unanimous vote of a
quorum present, recommends that the Senate pass S. 213, if
amended, as described herein.
The rollcall vote on reporting the measure was 23 yeas, 0
nays, as follows:
YEAS NAYS
Mr. Domenici
Mr. Nickles
Mr. Craig
Mr. Campbell*
Mr. Thomas
Mr. Alexander
Ms. Murkowski
Mr. Talent
Mr. Burns
Mr. Smith*
Mr. Bunning
Mr. Kyl*
Mr. Bingaman
Mr. Akaka
Mr. Dorgan*
Mr. Graham*
Mr. Wyden*
Mr. Johnson*
Ms. Landrieu*
Mr. Bayh*
Mrs. Feinstein*
Mr. Schumer*
Ms. Cantwell
* Indicates voted by proxy.
COMMITTEE AMENDMENT
During consideration of S. 213, the Committee adopted an
amendment striking the findings section from the bill to
address concerns raised by the Administration during the
September 23, 2003 Water and Power Subcommittee hearing.
SECTION-BY-SECTION ANALYSIS
Section 1 states the short title.
Section 2 states the purpose of the bill.
Section 3 defines key terms used in the Act.
Section 4 (a) directs the Secretary of the Interior to
issue a quitclaim deed to the two properties to the City of
Albuquerque.
Subsection (b) states that the Secretary should convey
title as soon as practicable after the date of enactment and in
accordance with all applicable law.
Subsection (c) states that the city is not required to pay
any additional costs to the United States for the value of the
two properties.
Section 5 (a) states that nothing in this Act shall be
construed to affect any right, title, or interest in and to any
other land associated with the Middle Rio Grande Project.
Subsection (b) states that nothing in this Act shall be
construed to affect or otherwise interfere with ongoing
litigation, specifically No. CV 99-1320 JP/RLP-ACE, entitled
Rio Grande Silvery Minnow v. John W. Keys, III.
COST AND BUDGETARY CONSIDERATIONS
The following estimate of the costs of this measure has
been provided by the Congressional Budget Office.
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 24, 2004.
Hon. Pete V. Domenici,
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. 213, the Albuquerque
Biological Park Title Clarification Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Julie
Middleton.
Sincerely,
Elizabeth M. Robinson
(For Douglas Holtz-Eakin, Director).
Enclosure.
S. 213--Albuquerque Biological Park Title Clarification Act
CBO estimates that implementing S. 213 would have no
significant impact on the federal budget. This bill would
direct the Secretary of the Interior to issue a quitclaim deed
conveying all right, title, and interest of the federal
government in two pieces of property in New Mexico, to the city
of Albuquerque, New Mexico. The properties are known as Tingley
Beach and San Gabriel Park.
The federal government currently does not generate any
income from these two pieces of property, nor does it spend any
funds to operate or maintain them. Tingley Beach and San
Gabriel Park are part of a larger reclamation project called
the Middle Rio Grande Project which is operated primarily by
the Middle Rio Grande Conservancy District. The federal
government and the district are currently involved in a lawsuit
regarding title to all of the lands in the Middle Rio Grande
Project. S. 213 would settle the title of the two pieces of
property by conveying them to the city of Albuquerque. The
government would not receive any compensation from the city for
these lands.
Enacting S. 213 would not affect direct spending or
revenues. This legislation contains no intergovernmental or
private-sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no costs on state, local, or tribal
governments. Enacting this legislation would benefit the city
of Albuquerque.
The CBO staff contact for this estimate is Julie Middleton.
This estimate was approved by Peter H. Fontaine, Deputy
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. 213. The bill is not a regulatory measure in
the sense of imposing Government-established standards or
significant economic responsibilities on private individuals
and businesses.
No personal information would be collected in administering
the program. Therefore, there would be no impact on personal
privacy.
Little, if any, additional paperwork would result from the
enactment of S. 213, as ordered reported.
EXECUTIVE COMMUNICATIONS
The Committee on Energy and Natural Resources requested
legislative reports from the Department of the Interior and the
Office of Management and Budget setting forth Executive agency
recommendations on S. 213 on February 6, 2003. These reports
had not been received at the time the report on S. 213 was
filed. The testimony provided by the Department of the Interior
at the subcommittee hearing follows:
Statement of Michael Gabaldon, Director, Policy, Management, and
Technical Services, Bureau of Reclamation, U.S. Department of Interior
My name is Michael Gabaldon, Director, Policy, Management,
and Technical Services of the Bureau of Reclamation
(Reclamation). I am pleased to be here today to present the
views of the Department regarding S. 213, which would clear
title to real property in New Mexico associated with the Middle
Rio Grande Project and for other purposes.
The Department has several concerns with S. 213 as drafted,
primarily that the dispute over ownership of the San Gabriel
and Tingley Beach parcel currently implicates a lawsuit pending
before the United States District Court for the District of New
Mexico. In addition, the Department has concerns about how the
transfer of property that would be effected by this legislation
may affect other property rights in the litigation related to
this matter.
The Department is not averse to transferring ownership to
another entity, but all parties must agree on the venue and all
applicable federal laws must be met in the process. The
Department believes the prudent course of action is to allow
the legal system to render its decision before instituting a
legislative remedy. Therefore, the Department cannot support S.
213 at this time.
With respect to the City of Albuquerque's desires to make
improvements on this property, Reclamation has provided a
license to the City which allows the use of those lands as
proposed in the City's improvement plans. In addition to the
license, Reclamation has met directly with members of the City
Planning Department to facilitate the review of the City's
proposed improvements for Tingley Beach and worked with staff
to assist them with State Historical Preservation Office
review.
The Middle Rio Grande Conservancy district (District) was
created by the Conservancy Act of 1923 to improve the economy
of the Middle Valley by lowering the water table and providing
flood protection and water for irrigation. In the 1940's, the
District requested that Reclamation take over the operation of
the District and retire its outstanding bonds. In September
1951, the District and Reclamation entered into a 50-year
repayment contract in the amount of $15,708,567. A key
component of the contract is Article 29, which states:
``Title to all works constructed by the United States under
this contract and to all such works as are conveyed to the
United States by the provision hereof, shall as provided in
Article 26, be and continue to be vested in the name of the
United States until otherwise provided for by Congress,
notwithstanding the transfer hereafter of any such works to the
District for operation and maintenance.''
Therefore, the Department is also concerned with some of
the findings in Section 2. Contrary to the implication of
Section 2(a)(3) of the bill, the U.S. did not claim title to
Tingley Beach and San Gabriel Park for the first time in 2000.
Rather, until recently, the U.S. and MRGCD had agreed for
decades that title to all properties necessary for the Middle
Rio Grande Project had been conveyed to the United States. For
example, both the United States and MRGCD filed several briefs
with the U.S. Supreme Court in the 1950's stating unequivocally
that title had been transferred to the U.S., and in the 1970's
MRGCD got a nuisance case involving all MRP ditches and canals
in the Albuquerque Area dismissed on the basis that these
properties had been conveyed to the United States.
Furthermore, in 1998 testimony before a committee of the
New Mexico Legislature, the District acknowledged the need and
desire to seek reconveyance after its debt was repaid.
Section 5 of the bill states that ``nothing in this act
shall be construed to affect or otherwise interfere with any
position set forth by any party in the lawsuit . . .'' It is
unclear how the passage of this legislation could not affect
the lawsuit given that the ownership of Middle Rio Grande
Project properties is a central question in the quiet title
claim of the litigation.
Despite this disagreement, the District has been a good
partner on this project and has retired its debt to the United
States. While we are always open to working with all interested
parties to find acceptable solutions, we believe that it is
best to wait on the court's decision on the quiet title claims.
Mr. Chairman, that concludes my remarks and I would be
happy to respond to any questions the Committee may have.
CHANGES IN EXISTING LAW
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee notes that no
changes in existing law are made by the bill S. 213, as ordered
reported.