39–006 

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; 

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(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, hydroVerDate Aug 04 2004 05:00 Jun 26, 2005 Jkt 039006 PO 00000 Frm 00002 Fmt 6659 Sfmt 6621 E:\HR\OC\HR149.XXX HR149
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power 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 

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(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 

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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.’’ 

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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. 

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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. 

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