[Senate Report 107-321]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 738
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-321

======================================================================



 
  ESTABLISHING 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

                                _______
                                

                October 17, 2002.--Ordered to be printed

                                _______
                                

    Mr. Inouye, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 2018]

    The Committee on Indian Affairs, 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 in the 
nature of a substitute and recommends that the bill (as 
amended) do pass.

                                Purpose

    The purposes of S. 2018 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 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.
    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 U.S. District Court for the District of Columbia and 
in 1998, the district court issued an order that found the 
Department's actions were arbitrary and capricious, vacated the 
1988 Interior Solicitor's opinion, and remanded the case to the 
Department for agency action consistent with the court's 
opinion. Pueblo of Sandia v. Babbitt, Civ. No. 94-2624 (D.D.C., 
July 18, 1998). Theorder 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 of Sandia, 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 Solicitor's opinion. Upon dismissal, the 
Department proceeded with its reconsideration in accordance 
with the July 18, 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 the land 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.
    While not identical to the Settlement Agreement, S. 2018 
incorporates its necessary provisions. These provisions 
include: (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 
which the parties have agreed are preferable to further 
litigation.

                          Leglislative History

    S. 2018 was introduced by Senator Bingaman on March 14, 
2002, and was referred to the Committee on Energy and Natural 
Resources, with a sequential referral to the Committee on 
Indian Affairs. The Energy and Natural Resources Committee and 
the Indian Affairs Committee held a joint hearing on S. 2018 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. On October 8, 2002, the Committee on Indian 
Affairs ordered an amendment in the nature of a substitute to 
the bill reported by the Energy and Natural Resources Committee 
favorably reported to the full Senate.

                        Committee Recommendation

    The Committee on Indian Affairs, by a majority vote of its 
members on October 8, 2002, recommends that the Senate pass an 
amendment in the nature of a substitute to S. 2018.

                          Committee Amendments

    During the consideration of S. 2018, the Committee on 
Energy and Natural Resources adopted an amendment in the nature 
of a substitute. The substitute contained a number of changes 
that were designed to address the concerns raised during the 
April 24th joint hearing by parties whose interests are 
affected by the settlement of the Pueblo's land claim. 
Following report of the bill by the Committee on Energy and 
Natural Resources, the parties to the settlement agreed to 
additional changes to S. 2018, and the amendment in the nature 
of a substitute to S. 2018 reported favorably by the Indian 
Affairs Committee incorporates those further changes. All 
amendments made to S. 2018 in the Committee on Indian Affairs 
have been agreed by the Committee on Energy and Natural 
Resources.
    A principal change in the substitute amendment reported by 
the Energy and Natural Resources Committee is the elimination 
of a provision that expressly ratifies and confirms the 
settlement agreement and management plan negotiated by the 
Pueblo of Sandia, 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, hang 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 are to 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 by the Energy and Natural 
Resources Committee 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.
    Other significant changes made by the Energy and Natural 
Resources Committee 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, the Energy and Natural Resources Committee added a 
subsection which 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 United States. There are 
other clarifying changes added in the substitute amendment 
reported by the Energy and Natural Resources Committee, which 
are explained in detail in the section by section analysis set 
forth below.
    The amendment in the nature of a substitute to S. 2018 that 
was favorably reported by the Committee on Indian Affairs 
addresses two additional matters--the right of the Pueblo to 
hunt in certain designated areas, and authorization for an 
exchange of lands owned by the Pueblo for lands in the national 
forest system that are contiguous to the Pueblo's existing 
reservation.

                      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 sets forth the three 
purposes of the Act, which 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 Trust area while resolving issues associated with 
litigation and the Interior Department Solicitors' opinions of 
December 9, 1988 and January 19, 2001; and (3) provide the 
Pueblo of Sandia, the parties involved in the litigation, and 
the public with a fair and just settlement of the Pueblo's 
claim.
    Section 3 defines terms--``area'', ``crest facilities'', 
``existing uses and activities'', ``Forest Service'', ``La Luz 
Tract'', ``Local Public Bodies'', ``Map'', ``Modified Uses or 
Activities'', ``New Uses or Activities'', ``Piedra Lisa 
Tract'',``Pueblo'', ``Secretary'', ``Settlement Agreement'', 
``Special Use Permit'', ``Subdivisions'' and ``Traditional and Cultural 
Uses''.
    The definition of ``Area'' has been changed to provide that 
``The term `Area' means the T'uf Shur Bien Preservation Trust 
Area as depicted on the map, and excludes the subdivisions, 
Pueblo-owned lands, the crest facilities, and the special use 
permit lands as set forth in this Act.''
    The term ``crest facilities'' has been amended to add the 
words ``along terrain'' after the words ``100 feet''.
    The definition of the term ``subdivisions'' has been 
changed to provide that ``The term `subdivisions' means the 
subdivisions of Sandia Heights Addition, Sandia Heights North 
Units I, II and 3, Tierra Monte, Valley View Acres, and 
Evergreen Hills, as well as any additional plats and privately-
owned properties depicted on the map.''
    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, which are to: (1) recognize and protect 
in perpetuity the Sandia Pueblo's rights and interests in and 
to the Area as specified in section 5(a) of S. 2018; (2) to 
preserve in perpetuity the Wilderness and National Forest 
character of the Area; and (3) to recognize and protect in 
perpetuity the public longstanding use and enjoyment of 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 and incorporate the 
provisions of S. 2018 affecting management of the Area, 
including section 5(a)(3) and section 7 of S. 2018.
    Subsection (c) provides exceptions and clarifications to 
the Forest Service's administration of the Area.
    Subsection (d) defines the Area and provides a map 
reference. Subsection (d)(3)(B) has been changed to provide 
that ``changes that may be necessary pursuant to section 9(b), 
9(d), 9(e), 14(c) and 14(d) shall be made;''.
    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 the creation of the T'uf Shur 
Bien Preservation Trust Area shall not affect the boundaries 
of, or repeal or disestablish 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.
    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 denies the Pueblo access for 
any traditional and cultural uses. The word ``permanently'' 
before the word ``denies'' has been removed from the 
subsection.
    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 thePueblo, and resolution 
of disputes. Subsection 7(a)(1)(A) has been changed to include the word 
``proposed'' after the word ``including'' and before the word ``new''. 
Subsection 7(a)(3)(A) has been changed to provide that ``Any person may 
file an action in the United States District Court for the District of 
New Mexico to challenge the Forest Service determinations of what 
constitutes a new or a modified use or activity.'' Subsection 
7(c)(2)(B) has been changed to provide that ``If the parties are unable 
to resolve the disputes within 3 days, either party may file an action 
for immediate relief in the United States District Court for the 
District of New Mexico, and the procedural exhaustion requirements set 
forth above shall not apply.''
    Section 8, subsection (a) allocates jurisdiction over 
crimes committed in the Area.
    Subsection (b) allocates civil jurisdiction in the Area. 
Subsection 8(b)(3)(B) is amended to provide that the Pueblo 
shall have exclusive authority to regulate hunting and trapping 
conducted by Pueblo members as a traditional and cultural use 
within the Area, excluding that part of the Area contained 
within Sections 13, 14, 23, 24, and the northeast quarter of 
Section 25 of T12N, R4E, and Section 19 of T12N, R5E, N.M.P.M., 
Sandoval County, New Mexico, shall be regulated by the Pueblo 
in a manner consistent with the regulations of the State of New 
Mexico concerning types of weapons and proximity of hunting and 
trapping to trails and residences.
    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 has been amended to provide that 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 upon the application of the 
Pueblo 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.
    Subsection (b) excludes the Piedra Lisa inholding 
(approximately 160 acres) from the Area and provides that if 
the Secretary or the Pueblo acquires the Piedra Lisa tract, the 
tract is to be transferred to the United States and by virtue 
of this legislation is declared to be held in trust for the 
Pueblo by the United States and administered by the Secretary 
of the Interior subject to all limitations on use pertaining to 
the Area contained in this Act. The restriction contained in 
section 6(a)(4) is not to apply outside of the Forest Service 
System trails. The jurisdiction of the State of New Mexico and 
local public bodies over the Piedra Lisa tract and property 
interests are to continue in effect until the tract is acquired 
by the Secretary or the Pueblo.
    Subsection (c) excludes certain facilities on the crest of 
Sandia Mountain from the Area and recognizes the pre-existing 
jurisdictional status of those lands, and clarifies that the 
Pueblo will have no civil or criminal jurisdiction for any 
purposes, including adjudicatory, taxing, zoning, regulatory or 
any other form or jurisdiction, over the lands on which the 
crest facilities are located and property interests therein, 
and the laws of the Pueblo are not to apply to 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. The section 
further provides that 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 are to 
have the same status under this Act as the lands currently 
described in the special use permit. In addition, the section 
provides that 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 are to thereafter be included in the Area but 
only after final agency action that is no longer subject to any 
appeals.
    Subsection (e) excludes the La Luz tract, owned by the 
Pueblo, from the Area and provides that upon application by the 
Pueblo, the tract is to 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 subject to all 
limitations on use pertaining to the Area contained in this 
Act. The restriction contained in section 6(a)(4) is not to 
apply outside of Forest Service system trails.
    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 and 
provides that such lands are to be subject to the 
jurisdictional provisions of subsection (a) of section 9.
    Subsection (h) requires the Secretary of the Interior to 
grant (1) 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 of 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, 7, 8, and 9, all Pueblo claims in and to 
lands in the Area.
    Subsection (b) permanently extinguishes any Pueblo claims 
to right, title and interest of any kind, including aboriginal 
claims, in and to the subdivisions and property interests 
therein, as well as related boundary, survey, trespass, and 
monetary damage claims.
    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 the management 
of the National Forest System.
    Subsection (d) precludes anything in this Act, except as 
provided in subparagraph 8(b)(3), 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.
    Subsection (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 (a) authorizes the appropriation of funds 
necessary to carry out the provisions of the Act including 
those sums necessary to acquire ownership or other interest in 
lands within the external boundaries of the Area as authorized 
in subsection (d).
    Section 14(b) authorizes the Secretary of Agriculture to 
accept contributions from the Pueblo or from other persons or 
governmental entities for the purpose of performing and 
completing a survey of the Area or otherwise for the benefit of 
the Area in accordance with the terms of the Act. Section 14(b) 
also requires the survey be completed within one year from the 
date of enactment of the Act.
    Section 14(c) provides for a land exchange between the 
Pueblo and the Secretary of Agriculture of National Forest 
lands outside the Area and contiguous to the northern boundary 
of the Pueblo's Reservation within sections 10, 11, and 14 of 
T12N, R4E, N.M.P.M., Sandoval County, New Mexico excluding 
Wilderness land, for lands owned by the Pueblo in the Evergreen 
Hills subdivision in Sandoval County contiguous to National 
Forest land, and the La Luz tract in Bernalillo County.
    Section 14(c) also authorizes the Secretary of Agriculture 
to 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, notwithstanding section 
206(b) of the Federal Land Policy and Management Act (43 U.S.C. 
1716(b)).
    Section 14(c) further provides that any funds received by 
the Secretary of Agriculture as a result of the exchange are to 
be deposited in the fund established under the Act of December 
4, 1967, otherwise known as the Sisk Act (16 U.S.C. 484a) and 
are to be available to purchase non-Federal lands within or 
adjacent to the National Forests in the State of New Mexico.
    Section 14(c) declares that all lands exchanged or conveyed 
to the Pueblo are to be held in trust for the Pueblo by the 
United States and added to the Pueblo's Reservation subject to 
all existing and outstanding rights. This land is to remain in 
its natural state and not be subject to commercial development 
of any kind.
    Lands exchanged or conveyed to the Forest Service under the 
authority of section 14(c) are to be subject to all limitations 
on use applicable to the Area under the provisions of this Act.
    The land exchange offer required to be made under the 
authority of section 14(c) is to be made within six months from 
the date of enactment of this Act and, if the exchange does not 
occur within that time frame, the Secretary of Agriculture must 
submit a report to the Senate Committee On Energy and Natural 
Resources and the House Committee on Resources explaining the 
reasons for the failure to make the offer and assessing the 
need for any additional legislation to effect the exchange. If 
additional legislation is not necessary, the Secretary is to 
proceed with the exchange pursuant to existing law.
    Section 14(d)(1) authorizes the Secretary of Agriculture to 
acquire lands owned by the Pueblo within the Evergreen Hills 
Subdivision in Sandoval County or any other privately owned 
lands inside the exterior boundaries of the Area. The 
boundaries of the Cibola National Forest and the Area are to be 
adjusted to encompass any lands acquired pursuant to this 
section.
    In the event the Pueblo acquires the Piedra Lisa tract, 
section 14(d)(2) requires the Secretary of Agriculture to 
compensate the Pueblo for the fair market value of the right of 
way established pursuant to section 9(i)(3) and the 
conservation easement established by the limitations on the use 
of the Piedra Lisa tract pursuant to section 9(b) of the Act.
    Section 14(e)(1) directs the Secretary of Agriculture to 
reimburse the Pueblo, the County of Bernalillo, New Mexico, and 
any person who owns or has owned property within the exterior 
boundaries of the Area as designated on the map for the actual 
and direct costs incurred but not reimbursed as a result of 
their participation in the litigation or settlement of the 
Sandia Pueblo's claim to Sandia Mountain in the case of Pueblo 
of Sandia v. Babbitt, Civ. No. 94-2624 HHG (D.D.C.). Costs 
eligible for reimbursement under this section include dues or 
payments to a homeowner association for the purpose of legal 
representation and other legal fees and related expenses.
    Section 14(e)(2) limits reimbursement awards made under the 
terms of section 14(e) in lieu of awards of funds otherwise 
available under the Equal Access to Justice Act (24 U.S.C. 
2412).
    Section 14(e)(3) authorizes the Secretary of the Treasury 
to make reimbursement payments to qualifying individuals or 
entities under this section out of funds not otherwise 
appropriated.
    Section 14(e)(4) requires that applications for 
reimbursement must be filed with the Department of the 
Treasury, Financial Management Service, Washington, D.C., no 
later than 180 days from the date of enactment of this Act.
    Section 14(e)(5) limits a party to reimbursement of no more 
than $750,000 and the total of all claims paid under the Act to 
no more than $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 that 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 estimated 
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 subject 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 receipt 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 cost: 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 established 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 legislature 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:

                        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 Department 
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 
grand 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 strayed 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 though 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 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 the 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 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)(3)(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 should 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(b).'' 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:

    Testimony 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 negotiations 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 Bernalillo 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.
    Statues (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-title 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 governmental 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.
                                ------                                


 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 within 
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 for 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 manner, and 
we commend those efforts. Ultimately, a Settlement Agreement 
was reached in April 2000, but 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 comments 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.

                        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

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                   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 other agency.

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