[Senate Report 109-13]
[From the U.S. Government Publishing Office]
Calendar No. 24
109th Congress Report
SENATE
1st Session 109-13
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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.