39–010 

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 

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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. 

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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 

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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 ArVerDate Aug 04 2004 03:45 Mar 01, 2005 Jkt 039010 PO 00000 Frm 00004 Fmt 6659 Sfmt 6969 E:\HR\OC\SR013.XXX SR013
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chaic 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 multiroomed 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 

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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 

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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 BLMmanaged 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 rightsof-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 BLMmanaged 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. 

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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. 

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