[Senate Report 109-13]
[From the U.S. Government Publishing Office]



                                                        Calendar No. 24
109th Congress                                                   Report
                                 SENATE
 1st Session                                                     109-13
======================================================================
 
                          OJITO WILDERNESS ACT

                                _______
                                

               February 28, 2005.--Ordered to be printed

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 156]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 156) 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, reports favorably thereon with amendments and 
recommends that the bill, as amended, do pass.
    The amendments are as follows:
    1. On page 2, line 13, strike ``comprise'' and insert 
``comprises''.
    2. On page 4, line 3, insert ``, New Mexico Principal 
Meridian'' after ``west''.
    3. On page 10, line 5, strike ``subsection (f)'' and insert 
``subsection (e)''.

                         PURPOSE OF THE MEASURE

    The purpose of S. 156 is to designate the Ojito Wilderness 
and to take certain land into trust for the Pueblo of Zia, and 
for other purposes.

                          BACKGROUND AND NEED

    Secretary of the Interior Manuel Lujan, Jr., recommended 
the designation of the Ojito Wilderness in 1991. Secretary 
Lujan found the Ojito to have ``high quality wilderness 
values'' with ``outstanding opportunities for solitude and 
primitive and unconfined recreation,'' President George H.W. 
Bush concurred in the recommendation and forwarded it to 
Congress for consideration. Since then, the Bureau of Land 
Management has managed the Ojito Wilderness Study Area in a 
manner so as not to impair its suitability for preservation as 
wilderness. S. 156 designates the approximately 11,000 acre 
area as wilderness.
    S. 156 also authorizes the Pueblo of Zia to acquire 
approximately 11,514 acres of public land adjacent to the 
Pueblo's current reservation. The Pueblo of Zia's reservation 
comprises two non-contiguous tracts of land that largely 
surround the Wilderness Study Area. The Pueblo has long desired 
to acquire some adjacent aboriginal lands that are managed by 
the Bureau of Land Management in order to unite the two parts 
of its reservation These lands also are valued by the public 
for recreation and other purposes. The bill allows for the 
Pueblo to acquire those lands, while at the same time 
guaranteeing public access.

                          LEGISLATIVE HISTORY

    S. 156 was introduced by Senators Bingaman and Domenici on 
January 25, 2005. The Subcommittee on Public Lands and Forests 
held a hearing on a similar bill, S. 1649, on February 12, 2004 
(S. Hrg. 108-416). S. 1649 passed the Senate as part of H.R. 
620 on December 7, 2004.

                        COMMITTEE RECOMMENDATION

    The Committee on Energy and Natural Resources, in open 
business session on February 9, 2005, by a voice vote of a 
quorum present, recommends that the Senate pass S. 156, if 
amended as described herein.

                          COMMITTEE AMENDMENT

    During the consideration of S. 156, the Committee adopted 
three technical amendments.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 contains the short title.
    Section 2 defines key terms used in the bill.
    Section 3 designates approximately 11,183 acres of Bureau 
of Land Management land as the Ojito Wilderness as a component 
of the National Wilderness Preservation System, and provides 
management direction for the area. This section also provides 
for certain lands that lie northwest of a portion of Querencia 
Arroyo Road (as depicted on the map) to be added to the 
wilderness under specified circumstances. That road provides 
gated access along the wilderness boundary to private land that 
lies adjacent to the wilderness. This section makes clear that 
such use may continue until specified conditions occur.
    Section 4 directs that certain Federal lands be declared 
held in trust by the United States for the Pueblo of Zia as 
part of the Pueblo's reservation upon receipt of consideration 
in an amount equal to the fair market value. The conveyance 
would be subject to the continued right of public access under 
certain prescribed conditions and provides for judicial relief 
for any person denied such access. The section also provides 
for continuation of existing, and the establishment of new, 
rights-of-way in the ``Rights-of-Way Corridor #1'' that runs 
north-south along the west side of the Ojito Wilderness.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the cost of this measure has been 
provided by the Congressional Budget Office.

                                                 February 11, 2005.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 156, the Ojito 
Wilderness Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Megan 
Carroll and Deborah Reis.
            Sincerely,
                                       Douglas Holtz-Eakin,
                                                          Director.
    Enclosure.

S. 156--Ojito Wilderness Act

    CBO estimates that implementing S. 156 would have no 
significant impact on the federal budget. The bill would 
increase both offsetting receipts and direct spending, but we 
estimate that the net change in direct spending would be 
negligible. Enacting S. 156 would not affect revenues.
    S. 156 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 appropriation, 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.
    S. 156 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.
    The CBO staff contacts for this estimate are Megan Carroll 
and Deborah Reis. This estimate was approved by Peter H. 
Fontaine, Deputy Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 156.
    The bill is not a regulatory measure in the sense of 
imposing Government-established standards or significant 
economic responsibilities on private individuals and 
businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 156, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    Views of the Administration were included in testimony 
received by the Committee at a hearing on a substantially 
similar bill on February 12, 2004.

  Statement of Kathleen Clarke, Director, Bureau of Land Management, 
                       Department of the Interior

    Thank you for the opportunity to testify on S. 1649, the 
Ojito Wilderness Act. This legislation would designate as 
wilderness the nearly 11,000 acre Ojito Wilderness Study Area 
(WSA). The bill also proposes to transfer certain public lands 
managed by the Bureau of Land Management (BLM) to trust status 
for the Pueblo of Zia (Pueblo) to become part of the Pueblo's 
Reservation. The administration supports the designation of the 
Ojito wilderness. However, we do have some significant concerns 
with the legislation as drafted. Several issues related to the 
proposed transfer of these BLM-managed lands into trust status 
remain unresolved and should be considered by Congress if it 
chooses to move forward with this legislation. We would like 
the opportunity to work with the Committee to resolve these 
issues.
Ojito Wilderness Designation
    Forty miles northwest of Albuquerque, New Mexico, the Ojito 
WSA provides a respite from the city and offers a world of 
steep canyons, multi-colored rock formations and sculptured 
badlands. Rugged terrain and geologic anomalies attract an 
array of visitors. This area is home to a diverse community of 
plant and animal populations including mule deer, a small band 
of antelope, feline predators, and a wide range of raptors who 
nest in the steep cliffs.
    The Ojito WSA contains extensive cultural resources. Both 
Archaic sites and several prehistoric sites are scattered 
throughout the WSA. More than 7,000 years ago Archaic hunters 
and gatherers inhabited the badlands of the Ojito. 
Archaeologists are just beginning to decipher the clues to 
their lives. Around 1200 A.D., the prehistoric Puebloan people 
moved to this area. Excavation of multi-roomed pueblos in this 
area has expanded our knowledge of these people and their 
agricultural lifestyle. Additionally, pre-19th century evidence 
of Spanish and Navajo use is apparent in areas of the WSA.
    Scientific excavations of important dinosaur fossils can 
and have been conducted in ways that protect both the important 
specimens and the wilderness values of the area. The secrets of 
this ancient past are just beginning to be unearthed within the 
Ojito.
    S. 1649 would designate the entire 10,794 acres of the WSA 
as wilderness. In a report issued in September 1991, the BLM's 
New Mexico State Office recommended the entire WSA for 
wilderness. That recommendation was subsequently sent to 
Congress by President George H.W. Bush in May of 1992.
    We support this wilderness designation. We would like the 
opportunity to work with Senators Bingaman and Domenici, as 
well as Committee staff, to address both substantive and 
technical issues within the wilderness section. For example, 
the Department strongly recommends that the legislation be 
amended to clarify that the wilderness designation not 
constitute or be construed to constitute either an express or 
implied reservation of any water rights. Additionally, we would 
request changes to make the legislation consistent with other 
wilderness laws, such as the complete withdrawal of the land 
from the mining, and mineral leasing laws. Finally, we would 
like to complete work on a single map to be referenced in the 
legislation that accurately represents both the designated 
wilderness and the lands proposed to be transferred to the 
Pueblo as described below.
Transfer of Public Land to Pueblo of Zia
    As with previous Zia Pueblo transfer legislation enacted in 
1978 (P.L. 95-499) and 1986 (P.L. 99-600), S. 1649 arises from 
a desire by the Pueblo to protect religious and cultural sites 
in the area and to consolidate its land holdings. S. 1649 
proposes to transfer certain lands currently managed by the BLM 
into trust status. The lands proposed to be transferred to 
trust status in S. 1649 contain numerous sites of religious and 
cultural significance to the Pueblo and other nearby Pueblos. 
The transfer would increase the ability of the Pueblo to 
protect the abundant religious, cultural, and archaeological 
resources in the area, but raises questions about the nature 
and extent of the Secretary's trust responsibilities.
    Over the past several years, the Department has devoted a 
great deal of time to trust reform discussions. The nature of 
the trust relationship is now often the subject of litigation. 
Both the Executive Branch and the Judicial Branch are faced 
with the question of what exactly does Congress intend when it 
puts land into trust status. What specific duties are required 
of the Secretary, administering the trust on behalf of the 
United States, with respect to trust lands? Tribes and 
individual Indians frequently assert that the duty is the same 
as that required of a private trustee. Yet, under a private 
trust, the trustee and the beneficiary have a legal 
relationship that is defined by private trust default 
principles and a trust instrument that defines the scope of the 
trust responsibility. Congress, when it establishes a trust 
relationship, should provide the guideposts for defining what 
that relationship means.
    Much of the current controversy over trust stems from the 
failure to have clear guidance as to the parameters, roles and 
responsibilities of the trustee and the beneficiary. As 
Trustee, the Secretary may face a variety of issues, including 
land use and zoning issues. Accordingly, the Secretary's trust 
responsibility to manage the land should be addressed with 
clarity and precision. Congress should decide these issues, not 
the courts. Therefore, we recommend the Committee set forth in 
the bill the specific trust duties it wishes the United States 
to assume with respect to the acquisition of these lands for 
the Pueblo. Alternatively, the Committee should require a trust 
instrument before any land is taken into trust. This trust 
instrument would ideally be contained in regulations drafted 
after consultation with the Tribe and the local community, 
consistent with parameters set forth by Congress in this 
legislation. The benefits of either approach are that it would 
clearly establish the beneficiary's expectations, clearly 
define the roles and responsibilities of each party, and 
establish how certain services are provided to tribal members.
    While the legislation as introduced does not reference a 
map of the acres to be transferred, it is our understanding 
that the Pueblo seeks to acquire approximately 11,514 acres of 
public land located west of, and contiguous to, the main body 
of the Pueblo's current reservation. These lands would provide 
a connecting corridor with a second block of Zia Pueblo lands 
to the northwest of the main body of the reservation. Through 
previous acquisitions of public land in 1978 and 1986, as well 
as the recent purchase of private lands, the Pueblo now has 
control over 200 square miles of land.
    S. 1649 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 
Wilderness study area. Under the bill, the transfer would be 
subject to valid existing rights and the 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 of 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.
    We respect the efforts of the Pueblo to protect its 
religious and cultural sites in the area and to consolidate its 
reservation lands. However, we are concerned that several of 
the bill's provisions may be insufficient to protect the public 
interest. Currently, for example, public access to both the WSA 
and the two Areas of Critical Environmental Concern (ACECs) 
which overlap the area is across BLM-managed public lands that 
we believe are intended for transfer to trust status under the 
bill. Section 5(d) of the legislation, as noted earlier, makes 
the transfer subject to the continuing right of the public to 
access the land under regulations to be adopted by the Pueblo 
and approved by the Secretary. In practice, however, public 
access across those lands after their transfer into trust 
status, and continued use of the area by the public, may be 
inconsistent with Pueblo's interest in protecting the 
religious, cultural, and archaeological resources on the lands.
    The only remedy S. 1649 offers to persons denied access to 
these areas is a right to sue the Pueblo in Federal Court. It 
seems inappropriate that day visitors seeking access to the 
Ojito wilderness area for recreational or scientific purposes 
would have no relief from restricted access save litigation.
    Although Section 5(a) of the bill makes the transfer 
subject to valid existing rights and Sec. 5(f) addresses 
rights-of-way, the effect of these provisions to ensure 
continued access may be limited. The BLM is concerned about 
preserving access to and on six roads crossing current BLM-
managed lands. Specifically, Cabezon Road (County Road 906), 
Pipeline Road (County Road 923), Gas Company Road, Marquez Wash 
Road, Chucho Arroyo Road, and Querercia Arroyo Road are roads 
currently used by the public to access BLM lands, but will be 
wholly or partially on trust lands following the proposed 
transfer. Although these roads are in public use, they do not 
have rights of way. We believe the public interest would be 
better served by amending the legislation to grant the BLM a 
permanent easement of adequate specified width for each of the 
corridors of land underlying these roads. Where these roads lie 
on or near the outskirts of the proposed Ojito Wilderness it 
may make sense simply to maintain BLM ownership of the lands 
from the wilderness to the far edge of the road corridor.
    We would like to work with the sponsors of the legislation 
and the Committee to address these concerns.
    Thank you for the opportunity to testify on S. 1649. I 
would be pleased to answer any questions.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 156, as ordered 
reported.

                                  
