Senate Report 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

[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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