[Senate Report 117-242]
[From the U.S. Government Publishing Office]
Calendar No. 619
117th Congress } { Report
SENATE
2d Session } { 117-242
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LAND GRANT-MERCEDES TRADITIONAL USE RECOGNITION AND CONSULTATION ACT
_______
December 12, 2022.--Ordered to be printed
_______
Mr. Manchin, from the Committee on Energy and Natural
Resources, submitted the following
R E P O R T
[To accompany S. 2708]
The Committee on Energy and Natural Resources, to which was
referred the bill (S. 2708), to provide for greater
consultation between the Federal Government and the governing
bodies and community users of land grant-mercedes in New
Mexico, to provide for a process for recognition of the
historic-traditional uses of land grant-mercedes, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
PURPOSE
The purpose of S. 2708 is to provide for greater
consultation between the Federal Government and the governing
bodies and community users of land grant-mercedes in New
Mexico, to provide for a process for recognition of the
historic-traditional uses of the land grant-mercedes (land
grants made by the Governments of Spain or Mexico).
BACKGROUND AND NEED
From the late 1600s through 1846, Spain and the Republic of
Mexico granted more than 150 land grants to communities and
individuals throughout the area that would become the
Southwestern United States to promote settlement on frontier
lands. In New Mexico, these grants included private tracts that
were made in the name of the grants' settlers, as well as large
tracts of communal lands that were set aside for use by all
residents to provide the necessary resources to sustain the
entire community.
Land grants-mercedes have been recognized in state and
territorial statutes in New Mexico since the late 1800s, and in
2004 they were formally recognized under state law as political
subdivisions of the state of New Mexico, affirming their local
government status. Land grants-mercedes are governed by an
elected board of trustees tasked with the control, care, and
management of the land grant-mercedes common property and
assets for the benefit of their respective communities.
S. 2708 seeks to enhance consultation between federal land
management agencies and the governing bodies of New Mexico's
land grants-mercedes. The bill recognizes the complicated
history of interaction between the federal government and these
communities and endeavors to clarify and improve these
management relationships under existing statutes and
regulations.
LEGISLATIVE HISTORY
S. 2708 was introduced by Senator Lujan on August 10, 2021.
Senator Heinrich is a cosponsor. The Subcommittee on Public
Lands, Forests, and Mining held a hearing on S. 2708 on June 7,
2022.
Representative Leger Fernandez introduced a companion
measure in the House of Representatives, H.R. 5493. The House
Natural Resources Committee's Subcommittee on National Parks,
Forests, and Public Lands held a hearing on the bill on March
1, 2022.
COMMITTEE RECOMMENDATION
The Senate Committee on Energy and Natural Resources, in an
open business session on July 21, 2022, by a voice vote of a
quorum present, recommends that the Senate pass S. 2708.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides the short title for the bill, the ``Land
Grant-Mercedes Traditional Use Recognition and Consultation
Act.''
Section 2. Definitions
Section 2 provides definitions for key terms used in the
bill.
Section 3. Guidance on Permit Requirements for Qualified Land Grant-
Mercedes
Subsection (a) requires appropriate officals at the
Department of Agriculture (USDA) and the Department of the
Interior to issue written guidance related to certain historic
community land grants in New Mexico made by Spain or Mexico to
individuals, groups, and communities to promote the settlement
of the southwestern United States (land grant-mercedes).
Subsection (b) requires the guidance to include policies
and procedures for notice and comment on planning decisions,
routine engagement, and major federal actions.
Section 4. Consideration of historical-traditional use in land
management planning
This section requires the the Secretary of the Interior or
the Secretary of Agriculture, as applicable to consider and, as
appropriate, provide for and evaluate impacts to historical-
traditional uses by qualified land grant-mercedes in
developing, maintaining, and revising land management plans and
National Forest System land and resource management plans.
Section 5. Savings clauses
This section contains several savings clauses clarifying
that nothing in the bill: impacts the State of New Mexico's
authority to regulate water rights or the management of fish
and game in the State (in conformance with all Federal laws and
regulations); impacts any valid existing rights or valid
permitted uses; creates any right to graze livestock on Federal
lands; or alters or diminishes any rights reserved for an
Indian Tribe by treaty or Federal law.
COST AND BUDGETARY CONSIDERATIONS
The Committee has requested, but has not yet received, the
Congressional Budget Office's estimate of the cost of S. 2708
as ordered reported. When the Congressional Budget Office
completes its cost estimate, it will be posted at www.cbo.gov.
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. 2708. 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. 2708, as ordered reported.
CONGRESSIONALLY DIRECTED SPENDING
S. 2708, as ordered reported, does not contain any
congressionally directed spending items, limited tax benefits,
or limited tariff benefits as defined in rule XLIV of the
Standing Rules of the Senate.
EXECUTIVE COMMUNICATIONS
The testimonies provided by the Department of the Interior
and the Department of Agriculture at the June 7, 2022, hearing
on S. 2708 follows:
Statement of Nada Wolff Culver, Deputy Director, Policy & Programs,
Bureau of Land Management, U.S. Department of the Interior
S. 2708, the Land Grant-Mercedes Traditional Use
Recognition and Consultation Act, requires the Department and
the USDA--in consultation with the New Mexico Land Grant
Council, the governing bodies of qualified land grant-mercedes,
and Indian Tribes--to develop within two years written guidance
pertaining to the management of lands within certain land
grant-mercedes in New Mexico. Specifically, the guidance would
describe the historical-traditional uses a community user or
governing body of a qualified land grant-merced may conduct for
noncommercial use on Federal land, as well as the activities
that would require a Federal permit. The guidance would also
clarify the permissible use of motorized vehicles and
mechanized equipment for historical-traditional uses, and what
is considered routine maintenance, or major or minor
improvements to certain infrastructure owned or used by a
qualified land grant-merced.
The bill specifies that the guidance also include policies
and procedures for notice and comment on planning decisions,
routine engagement, and major Federal actions that could impact
historical-traditional uses of qualified land grant-mercedes.
The bill directs the Secretaries where authorized to consider
the socioeconomic conditions of community users and the annual
operating budgets of governing bodies of qualified land grant-
mercedes when determining whether to reduce or waive permit
fees for historical-traditional uses.
S. 2708 also provides for additional consideration for
historical-traditional uses by qualified land grant-mercedes
when developing land use plans. Under the bill, the Departments
would be required to provide for and evaluate impacts to
historical-traditional uses in developing, maintaining, and
revising land management plans under the FLPMA and the National
Forest Management Act.
Finally, S. 2708 states that none of the bill's provisions
shall be construed to impact the State's authority to regulate
water rights or the management of game and fish; to impact any
valid existing right or valid permitted uses, including grazing
permits; to create any right to graze on Federal lands; or to
impact any rights reserved for an Indian Tribe or members of an
Indian Tribe.
The BLM supports S. 2708, as it aligns with the
Administration's priorities outlined in E.O. 13985, Advancing
Racial Equity and Support for Underserved Communities Through
the Federal Government, and with the Secretary's priorities to
build healthy communities and economies and advance
environmental justice. We recognize the importance of the
historical-traditional uses outlined in the bill to the land
grant-mercedes communities, and we also appreciate the goal of
enhancing the communication of Federal agencies with these
communities.
The BLM works closely with New Mexico's land grant-mercedes
and appreciates the cultural and historical role they have
played and continue to play throughout New Mexico. The BLM has
a liaison who interfaces with the New Mexico Land Grant
Council, a state agency which represents the land grant-
mercedes. The BLM liaison attends the Council's regular monthly
meetings and keeps the council abreast of BLM activities that
may be of interest to the land grant-mercedes throughout the
state. The BLM also initiated a pilot process for online
fuelwood permitting, which enables members from land grant-
mercedes to apply for fuelwood permits online rather than
requiring them to travel to obtain the permits in person.
Furthermore, the BLM 11 invites those land grant-mercedes that
are political subdivisions of the State of New Mexico to
participate as cooperating agencies on planning efforts. This
provides land grant-mercedes the ability to meet with the BLM
throughout the planning process.
We would also welcome the opportunity to work with the
Sponsor on some technical aspects of the bill. The BLM
recommends the Sponsor provide a clear definition of ``Federal
Land'' that does not include Federal Land held in trust for the
benefit of Indian tribes or Pueblos. We would also recommend
additional language to ensure that any Spanish grants that
overlap with Tribal lands be excluded from the provisions of
the bill. In addition, we would like to work with the Sponsor
to clarify the use of the word ``consultation'' to ensure it
does not conflict with the official Tribal consultation
process.
The BLM defers to the USDA regarding any changes to the
management of lands under its administration.
Testimony of Christopher French, Deputy Chief, National Forest System,
United States Department of Agriculture, Forest Service
The lands in northern New Mexico that became part of the
NFS, managed by the Forest Service, have a rich and unique
history dating back hundreds of years. The natural resources on
the forests have been, and continue to be, fundamental to the
interconnected economic, social, and cultural vitality of the
state, which is home to federally recognized tribes and
pueblos, land grant communities, acequia associations,
traditional Hispanic communities, and contemporary residents.
The people of northern New Mexico, their culture and
traditions, and their knowledge of the land must be recognized
and treated as unique resources.
The Forest Service recognizes it has an obligation to
provide for multiple use and sustained yield across the forest,
to comply with applicable laws in managing NFS lands, and to
provide service to all publics. The Forest Service also
recognizes the significance of addressing the unique and
important historic and cultural setting of northern New Mexico.
S. 2708, the ``Land Grant-Mercedes Traditional Use
Recognition and Consultation Act,'' would provide for
consultation between USDA and the governing bodies of land
grant-mercedes when developing written guidance as required by
the bill. Notably, S. 2708 applies only to specific communities
exclusive to the southwestern United States, many of which are
surrounded by and rely on federal lands managed by the Forest
Service. The word ``Consultation'' as it pertains to federal
agencies has a specific meaning when relating to federally
recognized Indian Tribes. Tribal Consultation, or Consultation,
is generally a government-to-government consultation that
involves the direct, timely, and interactive process of
receiving input from Indian Tribes regarding proposed actions
or policies that have Tribal implications. While the Forest
Service strives for better collaboration and cooperation with
our traditional communities, the term Consultation, as used
with respect to federally recognized tribes, cannot be applied
to this work with land grant-mercedes.
The Forest Service would like to highlight its efforts in
working with traditional communities. Land grant-mercedes are
recognized as cooperators in the forest planning process. For
the past 5 several years, the northern New Mexico national
forests have held quarterly meetings with all interested land
grant heirs. Draft forest plans for the Cibola, Carson, and
Santa Fe National Forests each dedicated specific attention to
Northern New Mexico Traditional Communities and Uses. This is a
direct reflection of efforts by the Forest Service to
collaborate with land grant-mercedes during the land management
planning process. These plans will serve as an enduring
commitment by the Forest Service to the communities of Northern
New Mexico. Additionally, the Forest Service has a designated
Government Liaison that works with the New Mexico Land Grant
Council to ensure a consistent point of contact.
The Forest Service is committed to collaboration and
transparency that address the unique needs of our local
communities, however our obligation to federally recognized
Tribes as sovereign nations and our requirement for Tribal
Consultation cannot be misconstrued. The USDA supports S. 2708;
however, we would like to work with the bill sponsors and
Subcommittee to differentiate this work from our relationship
with federally recognized tribes and land grant communities.
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 as ordered
reported.
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