[House Report 109-149]
[From the U.S. Government Publishing Office]



109th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    109-149

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



 
                          OJITO WILDERNESS ACT

                                _______
                                

 June 23, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

  Mr. Pombo, from the Committee on Resources, submitted the following

                              R E P O R T

                        [To accompany H.R. 362]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Resources, to whom was referred the bill 
(H.R. 362) to designate the Ojito Wilderness Study Area as 
wilderness, to take certain land into trust for the Pueblo of 
Zia, and for other purposes, having considered the same, report 
favorably thereon with an amendment and recommend that the bill 
as amended do pass.
  The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

   This Act may be cited as the ``Ojito Wilderness Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Map.--The term ``map'' means the map entitled ``Ojito 
        Wilderness Act'' and dated October 1, 2004.
          (2) Pueblo.--The term ``Pueblo'' means the Pueblo of Zia.
          (3) Secretary.--The term ``Secretary'' means the Secretary of 
        the Interior.
          (4) State.--The term ``State'' means the State of New Mexico.

SEC. 3. DESIGNATION OF THE OJITO WILDERNESS.

  (a) In General.--In furtherance of the purposes of the Wilderness Act 
(16 U.S.C. 1131 et seq.), there is hereby designated as wilderness, 
and, therefore, as a component of the National Wilderness Preservation 
System, certain land in the Albuquerque District-Bureau of Land 
Management, New Mexico, which comprises approximately 11,183 acres, as 
generally depicted on the map, and which shall be known as the ``Ojito 
Wilderness''.
  (b) Map and Legal Description.--The map and a legal description of 
the wilderness area designated by this Act shall--
          (1) be filed by the Secretary with the Committee on Energy 
        and Natural Resources of the Senate and the Committee on 
        Resources of the House of Representatives as soon as 
        practicable after the date of enactment of this Act;
          (2) have the same force and effect as if included in this 
        Act, except that the Secretary may correct clerical and 
        typographical errors in the legal description and map; and
          (3) be on file and available for public inspection in the 
        appropriate offices of the Bureau of Land Management.
  (c) Management of Wilderness.--Subject to valid existing rights, the 
wilderness area designated by this Act shall be managed by the 
Secretary in accordance with the Wilderness Act (16 U.S.C. 1131 et 
seq.) and this Act, except that, with respect to the wilderness area 
designated by this Act, any reference in the Wilderness Act to the 
effective date of the Wilderness Act shall be deemed to be a reference 
to the date of enactment of this Act.
  (d) Management of Newly Acquired Land.--If acquired by the United 
States, the following land shall become part of the wilderness area 
designated by this Act and shall be managed in accordance with this Act 
and other applicable law:
          (1) Section 12 of township 15 north, range 01 west, New 
        Mexico Principal Meridian.
          (2) Any land within the boundaries of the wilderness area 
        designated by this Act.
  (e) Management of Lands to Be Added.--The lands generally depicted on 
the map as ``Lands to be Added'' shall become part of the wilderness 
area designated by this Act if the United States acquires, or 
alternative adequate access is available to, section 12 of township 15 
north, range 01 west, New Mexico Principal Meridian.
  (f) Release.--The Congress hereby finds and directs that the lands 
generally depicted on the map as ``Lands to be Released'' have been 
adequately studied for wilderness designation pursuant to section 603 
of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1782) 
and no longer are subject to the requirement of section 603(c) of such 
Act (43 U.S.C. 1782(c)) pertaining to the management of wilderness 
study areas in a manner that does not impair the suitability of such 
areas for preservation as wilderness.
  (g) Grazing.--Grazing of livestock in the wilderness area designated 
by this Act, where established before the date of enactment of this 
Act, shall be administered in accordance with the provisions of section 
4(d)(4) of the Wilderness Act (16 U.S.C. 1133(d)(4)) and the guidelines 
set forth in Appendix A of the Report of the Committee on Interior and 
Insular Affairs to accompany H.R. 2570 of the One Hundred First 
Congress (H. Rept. 101-405).
  (h) Fish and Wildlife.--As provided in section 4(d)(7) of the 
Wilderness Act (16 U.S.C. 1133(d)(7)), nothing in this section shall be 
construed as affecting the jurisdiction or responsibilities of the 
State with respect to fish and wildlife in the State.
  (i) Water Rights.--
          (1) Findings.--Congress finds that--
                  (A) the land designated as wilderness by this Act is 
                arid in nature and is generally not suitable for use or 
                development of new water resource facilities; and
                  (B) because of the unique nature and hydrology of the 
                desert land designated as wilderness by this Act, it is 
                possible to provide for proper management and 
                protection of the wilderness and other values of lands 
                in ways different from those used in other legislation.
          (2) Statutory construction.--Nothing in this Act--
                  (A) shall constitute or be construed to constitute 
                either an express or implied reservation by the United 
                States of any water or water rights with respect to the 
                land designated as wilderness by this Act;
                  (B) shall affect any water rights in the State 
                existing on the date of enactment of this Act, 
                including any water rights held by the United States;
                  (C) shall be construed as establishing a precedent 
                with regard to any future wilderness designations;
                  (D) shall affect the interpretation of, or any 
                designation made pursuant to, any other Act; or
                  (E) shall be construed as limiting, altering, 
                modifying, or amending any of the interstate compacts 
                or equitable apportionment decrees that apportion water 
                among and between the State and other States.
          (3) State water law.--The Secretary shall follow the 
        procedural and substantive requirements of the law of the State 
        in order to obtain and hold any water rights not in existence 
        on the date of enactment of this Act with respect to the 
        wilderness area designated by this Act.
          (4) New projects.--
                  (A) Water resource facility.--As used in this 
                subsection, the term ``water resource facility''--
                          (i) means irrigation and pumping facilities, 
                        reservoirs, water conservation works, 
                        aqueducts, canals, ditches, pipelines, wells, 
                        hydropower projects, and transmission and other 
                        ancillary facilities, and other water 
                        diversion, storage, and carriage structures; 
                        and
                          (ii) does not include wildlife guzzlers.
                  (B) Restriction on new water resource facilities.--
                Except as otherwise provided in this Act, on and after 
                the date of enactment of this Act, neither the 
                President nor any other officer, employee, or agent of 
                the United States shall fund, assist, authorize, or 
                issue a license or permit for the development of any 
                new water resource facility within the wilderness area 
                designated by this Act.
  (j) Withdrawal.--Subject to valid existing rights, the wilderness 
area designated by this Act, the lands to be added under subsection 
(e), and lands identified on the map as the ``BLM Lands Authorized to 
be Acquired by the Pueblo of Zia'' are withdrawn from--
          (1) all forms of entry, appropriation, and disposal under the 
        public land laws;
          (2) location, entry, and patent under the mining laws; and
          (3) operation of the mineral leasing, mineral materials, and 
        geothermal leasing laws.
  (k) Exchange.--Not later than 3 years after the date of enactment of 
this Act, the Secretary shall seek to complete an exchange for State 
land within the boundaries of the wilderness area designated by this 
Act.

SEC. 4. LAND HELD IN TRUST.

  (a) In General.--Subject to valid existing rights and the conditions 
under subsection (d), all right, title, and interest of the United 
States in and to the lands (including improvements, appurtenances, and 
mineral rights to the lands) generally depicted on the map as ``BLM 
Lands Authorized to be Acquired by the Pueblo of Zia'' shall, on 
receipt of consideration under subsection (c) and adoption and approval 
of regulations under subsection (d), be declared by the Secretary to be 
held in trust by the United States for the Pueblo and shall be part of 
the Pueblo's Reservation.
  (b) Description of Lands.--The boundary of the lands authorized by 
this section for acquisition by the Pueblo where generally depicted on 
the map as immediately adjacent to CR906, CR923, and Cucho Arroyo Road 
shall be 100 feet from the center line of the road.
  (c) Consideration.--
          (1) In general.--In consideration for the conveyance 
        authorized under subsection (a), the Pueblo shall pay to the 
        Secretary the amount that is equal to the fair market value of 
        the land conveyed, as subject to the terms and conditions in 
        subsection (d), as determined by an independent appraisal.
          (2) Appraisal.--To determine the fair market value, the 
        Secretary shall conduct an appraisal paid for by the Pueblo 
        that is performed in accordance with the Uniform Appraisal 
        Standards for Federal Land Acquisitions and the Uniform 
        Standards of Professional Appraisal Practice.
          (3) Availability.--Any amounts paid under paragraph (1) shall 
        be available to the Secretary, without further appropriation 
        and until expended, for the acquisition from willing sellers of 
        land or interests in land in the State.
  (d) Public Access.--
          (1) In general.--Subject to paragraph (2), the declaration of 
        trust and conveyance under subsection (a) shall be subject to 
        the continuing right of the public to access the land for 
        recreational, scenic, scientific, educational, paleontological, 
        and conservation uses, subject to any regulations for land 
        management and the preservation, protection, and enjoyment of 
        the natural characteristics of the land that are adopted by the 
        Pueblo and approved by the Secretary; Provided, that the 
        Secretary shall ensure that the rights provided for in this 
        paragraph are protected and that a process for resolving any 
        complaints by an aggrieved party is established.
          (2) Conditions.--Except as provided in subsection (e)--
                  (A) the land conveyed under subsection (a) shall be 
                maintained as open space and the natural 
                characteristics of the land shall be preserved in 
                perpetuity; and
                  (B) the use of motorized vehicles (except on existing 
                roads or as is necessary for the maintenance and repair 
                of facilities used in connection with grazing 
                operations), mineral extraction, housing, gaming, and 
                other commercial enterprises shall be prohibited within 
                the boundaries of the land conveyed under subsection 
                (a).
  (e) Rights of Way.--
          (1) Existing rights of way.--Nothing in this section shall 
        affect--
                  (A) any validly issued right-of-way or the renewal 
                thereof; or
                  (B) the access for customary construction, operation, 
                maintenance, repair, and replacement activities in any 
                right-of-way issued, granted, or permitted by the 
                Secretary.
          (2) New rights of way and renewals.--
                  (A) In general.--The Pueblo shall grant any 
                reasonable request for rights-of-way for utilities and 
                pipelines over the land acquired under subsection (a) 
                that is designated as the ``Rights-of-Way corridor #1'' 
                in the Rio Puerco Resource Management Plan that is in 
                effect on the date of the grant.
                  (B) Administration.--Any right-of-way issued or 
                renewed after the date of enactment of this Act located 
                on land authorized to be acquired under this section 
                shall be administered in accordance with the rules, 
                regulations, and fee payment schedules of the 
                Department of the Interior, including the Rio Puerco 
                Resources Management Plan that is in effect on the date 
                of issuance or renewal of the right-of-way.
  (f) Judicial Relief.--
          (1) In general.--To enforce subsection (d), any person may 
        bring a civil action in the United States District Court for 
        the District of New Mexico seeking declaratory or injunctive 
        relief.
          (2) Sovereign immunity.--The Pueblo shall not assert 
        sovereign immunity as a defense or bar to a civil action 
        brought under paragraph (1).
          (3) Effect.--Nothing in this section--
                  (A) authorizes a civil action against the Pueblo for 
                money damages, costs, or attorneys fees; or
                  (B) except as provided in paragraph (2), abrogates 
                the sovereign immunity of the Pueblo.

                          PURPOSE OF THE BILL

    The purpose of H.R. 362 is to designate the Ojito 
Wilderness Study Area as wilderness, to take certain land into 
trust for the Pueblo of Zia, and for other purposes.

                  BACKGROUND AND NEED FOR LEGISLATION

    The Ojito Wilderness Study Area (WSA), located in Sandoval 
County, New Mexico, represents an area of approximately 11,200 
acres that was recommended for wilderness designation by the 
Bureau of Land Management's New Mexico State Office in 1991. 
The recommendation was based on its high quality wilderness 
values, extensive cultural resources, both archaic and several 
prehistoric sites, other cultural and paleontological features 
and the lack of resources conflicts in the area. H.R. 362 would 
designate most of the Ojito WSA as wilderness, subject to valid 
existing rights, and would continue to permit grazing that was 
established before the designation.
    In addition, H.R. 362 makes clear that nothing in the bill 
constitutes or could be construed to constitute either an 
expressed or implied reservation by the federal government to 
any water or water rights with respect to the land designated 
as wilderness by the bill, nor will H.R. 362 affect any water 
rights in the State of New Mexico existing on the date of 
enactment of this bill, including any water rights held by the 
United States. Also, H.R. 362 makes clear that the water rights 
provision will not be construed towards establishing a 
precedent with regard to any future wilderness designations.
    H.R. 362 would also transfer certain public lands 
(approximately 11,500 acres) located west of, and contiguous 
to, the main body of the Pueblo of Zia's current reservation, 
to trust status for the Pueblo to become part of the Pueblo's 
reservation. The purpose of the transfer is to protect its 
religious and cultural sites in the area and to consolidate its 
land holdings. In 1978 and in 1986, the Bureau of Land 
Management transferred land to the Pueblo. H.R. 362 would allow 
the Pueblo to acquire all right, title and interest (including 
mineral rights) to additional public land located adjacent to 
the reservation and the Ojito WSA. The transfer would be 
subject to valid existing rights and continuing right of the 
public to access the land for recreational, scientific, 
educational, paleontological and conservation uses, subject to 
regulations adopted by the Pueblo and approved by the Secretary 
of the Interior. The use of motorized vehicles off approved 
roads, mineral extraction, housing, gaming, and other 
commercial enterprises would be prohibited, and the Pueblo 
would be required to pay the Secretary fair market value for 
the lands.

                            COMMITTEE ACTION

    H.R. 362 was introduced on January 25, 2005, by Congressman 
Tom Udall (D-NM). The bill was referred to the Committee on 
Resources, and within the Committee to the Subcommittee on 
Forests and Forest Health. On May 18, 2005, the full Resources 
Committee met to consider the bill. The Subcommittee on Forests 
and Forest Health was discharged from further consideration of 
the bill by unanimous consent. Congressman Tom Udall offered an 
amendment in the nature of a substitute that made four 
technical changes to the original text. The Udall amendment was 
adopted by unanimous consent. The bill, as amended, was then 
ordered favorably to the House of Representatives by unanimous 
consent.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Resources' oversight findings and recommendations 
are reflected in the body of this report.

                   CONSTITUTIONAL AUTHORITY STATEMENT

    Article I, section 8, and Article IV, section 3 of the 
Constitution of the United States grants Congress the authority 
to enact this bill.

                    COMPLIANCE WITH HOUSE RULE XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, credit 
authority, or an increase or decrease in tax expenditures. 
According to the Congressional Budget Office, enactment of this 
bill would increase offsetting receipts and direct spending but 
any ``net change in direct spending would be negligible.''
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 362--Ojito Wilderness Act

    CBO estimates that implementing H.R. 362 would have no 
significant impact on the federal budget. Enacting the bill 
would increase both offsetting receipts and direct spending, 
but we estimate that the net change in direct spending would be 
negligible. Enacting H.R. 362 would not affect revenues.
    H.R. 362 would designate 11,183 acres of land in New Mexico 
as the Ojito Wilderness and would authorize the Secretary of 
the Interior, under certain circumstances, to expand that 
wilderness to include 118 additional acres of land. The bill 
would direct the Secretary to take into trust, on behalf of the 
Pueblo of Zia, about 11,500 acres of federal land. All of the 
affected federal land would be withdrawn from programs to 
develop natural resources. According to the Bureau of Land 
Management (BLM), that land currently generates no significant 
income from such programs and is not expected to do so over the 
next 10 years. Therefore, we estimate that the proposed changes 
would not significantly affect offsetting receipts (a credit 
against direct spending). Based on information from BLM, we 
also estimate that any increase in federal spending for land 
management, which would be subject to the availability of 
appropriate funds, would not exceed $500,000 a year.
    In exchange for the federal land to be taken into trust on 
behalf of the Pueblo of Zia, the Pueblo would pay to the 
Secretary the fair market value of that land as defined in the 
bill. The bill would authorize the Secretary to retain and 
spend amounts received from the Pueblo, without further 
appropriation, to acquire nonfederal property in New Mexico. 
Based on information from BLM, CBO estimates that the proposed 
transaction would increase offsetting receipts (a credit 
against direct spending) by up to $500,000 over the next year 
or two, We also estimate that those receipts would be largely 
offset by an increase in direct spending in the same year, 
resulting in a negligible net change in direct spending.
    H.R. 362 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act. 
Enacting this bill would benefit the Pueblo and would have no 
significant impact on the budgets of other state, local, or 
tribal governments.
    On February 11, 2005, CBO transmitted a cost estimate for 
S. 156, the Ojito Wilderness Act, as ordered reported by the 
Senate Committee on Energy and Natural Resources on February 9, 
2005. The two pieces of legislation are identical, as are the 
cost estimates.
    The CBO staff contacts for this estimate are Matthew 
Pickford, Megan Carroll, and Deborah Reis. This estimate was 
approved by Peter H. Fontaine, Deputy Assistant Director for 
Budget Analysis.

                    COMPLIANCE WITH PUBLIC LAW 104-4

    This bill contains no unfunded mandates.

                PREEMPTION OF STATE, LOCAL OR TRIBAL LAW

    This bill is not intended to preempt any State, local or 
tribal law.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes in existing 
law.

                                  
