[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.

                             [all]