19–010

Calendar No. 738

107TH CONGRESS REPORT " SENATE ! 2d Session 107–321

ESTABLISHING THE T’UF SHUR BIEN PRESERVATION TRUST AREA WITHIN 

THE CIBOLA NATIONAL FOREST IN THE STATE OF NEW MEXICO TO RESOLVE A LAND CLAIM INVOLVING THE SANDIA MOUNTAIN WILDERNESS, AND FOR OTHER PURPOSES

OCTOBER 17, 2002.—Ordered to be printed 

Mr. INOUYE, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 2018]

The Committee on Indian Affairs, to which was referred the bill 

(S. 2018) to establish the T’uf Shur Bien Preservation Trust Area 

within the Cibola National Forest in the State of New Mexico to 

resolve a land claim involving the Sandia Mountain Wilderness, 

and for other purposes, having considered the same, reports favorably thereon with an amendment in the nature of a substitute and 

recommends that the bill (as amended) do pass. 

PURPOSE

The purposes of S. 2018 are to establish a unique area within the 

Cibola National Forest in New Mexico, entitled the T’uf Shur Bien 

Preservation Trust Area, and to resolve the Pueblo of Sandia’s 

claim of ownership of Sandia Mountain, an area within the Cibola 

National Forest that includes a portion of the Sandia Mountain 

Wilderness. S. 2018 would resolve the Pueblo’s claim by recognizing certain specific rights and interests of the Pueblo while 

maintaining Federal ownership and management of the national 

forest and wilderness lands within the claim area. 

BACKGROUND AND NEED

The basis for the Pueblo of Sandia’s claim to Sandia Mountain 

is a 1748 land grant to the Pueblo from a representative of the 

King of Spain. In 1848, at the end of the Mexican-American War, 

the United States entered into the Treaty of Guadalupe-Hidalgo 

with Mexico and thereby assumed control of a large part of the 

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present American Southwest, including the area involving the 

Pueblo’s 1748 land grant. As part of the Treaty, the United States 

agreed to protect the Spanish and Mexican land grants that were 

acknowledged before American tribunals. The Pueblo’s grant was 

one of those so acknowledged and, accordingly, was recognized and 

confirmed by Congress in 1858 (11 Stat. 374). 

While there is no issue as to the validity of the Pueblo’s grant, 

a dispute does exist as to the location of its eastern boundary, as 

it was originally determined in an 1859 survey. That survey, carried out by an employee of the United States government, fixed the 

eastern boundary along the top of a foothill on the western slope 

of Sandia Mountain, rather than along its crest. The Pueblo has asserted that the United States’ interpretation of the grant at the 

time of the survey and the subsequent land patent are in error, 

and that the true eastern boundary is the crest of the Mountain. 

In the early 1980’s, in accordance with its claim, the Pueblo approached the Department of the Interior seeking a resurvey of the 

grant to locate the eastern boundary of the Pueblo along the crest 

of Sandia Mountain. In December 1988, the Solicitor of the Department of the Interior issued an opinion rejecting the Pueblo’s claim. 

The Pueblo challenged the opinion in U.S. District Court for the 

District of Columbia and in 1998, the district court issued an order 

that found the Department’s actions were arbitrary and capricious, 

vacated the 1988 Interior Solicitor’s opinion, and remanded the 

case to the Department for agency action consistent with the 

court’s opinion. Pueblo of Sandia v. Babbitt, Civ. No. 94–2624 

(D.D.C., July 18, 1998). The order was appealed but appellate proceedings were stayed for more than a year while a settlement was 

being negotiated. 

On April 4, 2000, a settlement agreement was executed between 

the United States, the Pueblo of Sandia, and the Sandia Peak 

Tram Company. That agreement was conditioned on Congressional 

ratification and remains effective until November 15, 2002. 

In November 2000, the Court of Appeals of the District of Columbia Circuit dismissed the appeal for lack of jurisdiction, holding 

that the District Court’s remand order was not final because the 

Department of the Interior needed to first reconsider the 1988 Solicitor’s opinion. Upon dismissal, the Department proceeded with 

its reconsideration in accordance with the July 18, 1998 order of 

the District Court. On January 19, 2001, the Solicitor issued a new 

opinion that concluded that the 1859 survey of the Sandia Pueblo 

grant was erroneous and that a resurvey should be conducted that 

places the eastern boundary of the grant at the crest of Sandia 

Mountain. Implementation of the opinion would remove approximately 10,000 acres of National Forest and Wilderness lands from 

Federal ownership and convey the land to the Pueblo. The Department stayed the resurvey until after November 15, 2002, so that 

there would be time for Congress to enact legislation that would 

implement the settlement. 

While not identical to the Settlement Agreement, S. 2018 incorporates its necessary provisions. These provisions include: (1) the 

creation of the T’uf Shur Bien Preservation Trust Area (Area) with 

restrictions on future development within the Area; (2) a right of 

the Pueblo to unrestricted access to the Area for traditional and 

cultural uses; (3) a right of the Pueblo to participate in manageVerDate 0ct 09 2002 21:02 Oct 21, 2002 Jkt 019010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR321.XXX SR321
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ment of the Area; (4) a compensable interest should Congress ever 

authorize prohibited uses in the Area or permanently deny the 

Pueblo access for traditional and cultural uses; (5) exclusive jurisdiction by the Pueblo over certain activities of its members and 

other Native Americans within the Area; (6) the non-discretionary 

right to have certain Pueblo-owned lands taken into trust by the 

United States; and (7) the ability to veto any new land management activities in the Area. In recognition of the Pueblo receiving 

these rights and interests in the Area, S. 2018 resolves with finality the Pueblo’s claim to Sandia Mountain by extinguishing any 

and all claims related to the Area. The bill also (1) maintains public ownership and full access to the National Forest and Wilderness 

lands within the Pueblo’s claim area; (2) clears title for existing 

landowners within the claim area; and (3) grants a number of 

rights-of-way over the Pueblo’s existing land to protect private 

property interests and the public’s ongoing use of the Area. 

The relative rights and interests contained in S. 2018 represent 

a negotiated compromise of the Pueblo’s land claim which the parties have agreed are preferable to further litigation. 

LEGLISLATIVE HISTORY

S. 2018 was introduced by Senator Bingaman on March 14, 2002, 

and was referred to the Committee on Energy and Natural Resources, with a sequential referral to the Committee on Indian Affairs. The Energy and Natural Resources Committee and the Indian Affairs Committee held a joint hearing on S. 2018 on April 24, 

2002. At the business meeting on July 31, 2002, the Committee on 

Energy and Natural Resources adopted an amendment in the nature of a substitute and ordered S. 2018, as amended, favorably reported. On October 8, 2002, the Committee on Indian Affairs ordered an amendment in the nature of a substitute to the bill reported by the Energy and Natural Resources Committee favorably 

reported to the full Senate. 

COMMITTEE RECOMMENDATION

The Committee on Indian Affairs, by a majority vote of its members on October 8, 2002, recommends that the Senate pass an 

amendment in the nature of a substitute to S. 2018. 

COMMITTEE AMENDMENTS

During the consideration of S. 2018, the Committee on Energy 

and Natural Resources adopted an amendment in the nature of a 

substitute. The substitute contained a number of changes that were 

designed to address the concerns raised during the April 24th joint 

hearing by parties whose interests are affected by the settlement 

of the Pueblo’s land claim. Following report of the bill by the Committee on Energy and Natural Resources, the parties to the settlement agreed to additional changes to S. 2018, and the amendment 

in the nature of a substitute to S. 2018 reported favorably by the 

Indian Affairs Committee incorporates those further changes. All 

amendments made to S. 2018 in the Committee on Indian Affairs 

have been agreed by the Committee on Energy and Natural Resources.

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A principal change in the substitute amendment reported by the 

Energy and Natural Resources Committee is the elimination of a 

provision that expressly ratifies and confirms the settlement agreement and management plan negotiated by the Pueblo of Sandia, 

the United States, and the Sandia Mountain Tram Company. Several new subsections were added to incorporate several key provisions from those documents. Most significantly, a new section was 

added to address the Forest Service’s management of the newly 

created T’uf Shur Bien Preservation Trust Area. Also, in section 3, 

new definitions were added for ‘‘existing uses and activities,’’ ‘‘modified uses and activities,’’ and ‘‘new uses or activities.’’ These 

terms are important to determine the application of the Pueblo’s 

right to consent to, or deny consent to, new uses or activities within 

the Area. 

Examples of ‘‘existing uses or activities’’ include the following 

recreational activities: the La Luz Run, running, jogging, hang gliding, parasailing, back-country camping, meditation, spiritual renewal, religious observances, picnicking, cross-country skiing, trapping, interpretation education, hiking, biking, rock climbing, bird 

watching, wildlife viewing, walking, dog walking, bow hunting, 

snow shoeing, driving, skating, sledding, horseback riding, photography, painting, sketching, and geo-caching. Some recreational activities require special use authorizations and some do not. To the 

extent the Sandia Peak Tram Company requires access to lands 

not described in the December 1, 1993, Special Use Permit, but 

within the non-wilderness area adjacent to the tram line, for maintenance or equipment replacement, access to and use of those lands 

are to be deemed an ‘‘existing use.’’ The Forest Service will retain 

its authority to regulate all existing uses and, where appropriate, 

to modify, suspend, or revoke all special use authorizations. ‘‘New uses or activities’’ may include: a new trail, trail head, 

road, picnic area, parking lot, or significant new structure or facility in support of these features; new recreation or other activities 

not occurring in the Area on the date of enactment of the Act but 

otherwise permissible in National Forest and wilderness areas; and 

new special use authorizations and new rights-of-way. 

Several changes were also made by the Energy and Natural Resources Committee so that S. 2018 more closely tracked the settlement agreement. In section 4, a provision providing the counties of 

Bernalillo and Sandoval with the same veto power as the Pueblo 

over new uses or activities was deleted. In section 9, a provision 

was inserted to direct the Secretary of the Interior, as a non-discretionary matter, to take a large undeveloped tract of land owned by 

the Pueblo into trust for its benefit. Finally, the substitute amendment deletes a provision directing the Forest Service to transfer to 

the Pueblo two small lots located in the subdivided portion of the 

Evergreen Hills subdivision. 

Other significant changes made by the Energy and Natural Resources Committee include a provision that amends the Federal 

Land Policy and Management Act so that if one Federal agency 

seeks to correct a Federal land patent or other conveyance document that would affect the jurisdiction of another Federal agency, 

the affected agency must approve the correction. Finally, the Energy and Natural Resources Committee added a subsection which 

directs the Secretary of the Treasury to reimburse the parties and 

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certain affected landowners involved with the Pueblo of Sandia v. 

Babbitt litigation for costs directly incurred as a result of the litigation and settlement of the Pueblo’s land claim against the United 

States. There are other clarifying changes added in the substitute 

amendment reported by the Energy and Natural Resources Committee, which are explained in detail in the section by section analysis set forth below. 

The amendment in the nature of a substitute to S. 2018 that was 

favorably reported by the Committee on Indian Affairs addresses 

two additional matters—the right of the Pueblo to hunt in certain 

designated areas, and authorization for an exchange of lands 

owned by the Pueblo for lands in the national forest system that 

are contiguous to the Pueblo’s existing reservation. 

SECTION-BY-SECTION ANALYSIS

Section 1 provides the short title, the ‘‘T’uf Shur Bien Preservation Trust Area Act’’. 

Section 2 contains one finding and sets forth the three purposes 

of the Act, which are to: (1) establish the T’uf Shur Bien Preservation Trust Area in the Cibola National Forest; (2) confirm the status of National Forest and Wilderness lands in the Trust area 

while resolving issues associated with litigation and the Interior 

Department Solicitors’ opinions of December 9, 1988 and January 

19, 2001; and (3) provide the Pueblo of Sandia, the parties involved 

in the litigation, and the public with a fair and just settlement of 

the Pueblo’s claim. 

Section 3 defines terms—‘‘area’’, ‘‘crest facilities’’, ‘‘existing uses 

and activities’’, ‘‘Forest Service’’, ‘‘La Luz Tract’’, ‘‘Local Public Bodies’’, ‘‘Map’’, ‘‘Modified Uses or Activities’’, ‘‘New Uses or Activities’’, 

‘‘Piedra Lisa Tract’’, ‘‘Pueblo’’, ‘‘Secretary’’, ‘‘Settlement Agreement’’, 

‘‘Special Use Permit’’, ‘‘Subdivisions’’ and ‘‘Traditional and Cultural 

Uses’’. 

The definition of ‘‘Area’’ has been changed to provide that ‘‘The 

term ‘Area’ means the T’uf Shur Bien Preservation Trust Area as 

depicted on the map, and excludes the subdivisions, Pueblo-owned 

lands, the crest facilities, and the special use permit lands as set 

forth in this Act.’’

The term ‘‘crest facilities’’ has been amended to add the words 

‘‘along terrain’’ after the words ‘‘100 feet’’. 

The definition of the term ‘‘subdivisions’’ has been changed to 

provide that ‘‘The term ‘subdivisions’ means the subdivisions of 

Sandia Heights Addition, Sandia Heights North Units I, II and 3, 

Tierra Monte, Valley View Acres, and Evergreen Hills, as well as 

any additional plats and privately-owned properties depicted on the 

map.’’

Section 4, subsection (a) establishes a new management area, 

named the ‘‘T’uf Shur Bien Preservation Trust Area’’ (Area), totaling approximately 9,980 acres within the Cibola National Forest 

and the Sandia Mountain Wilderness in New Mexico. This subsection also sets forth the reasons for establishing the Area, which 

are to: (1) recognize and protect in perpetuity the Sandia Pueblo’s 

rights and interests in and to the Area as specified in section 5(a) 

of S. 2018; (2) to preserve in perpetuity the Wilderness and National Forest character of the Area; and (3) to recognize and protect 

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in perpetuity the public longstanding use and enjoyment of the 

Area. 

Subsection (b) states that the Forest Service shall continue to administer the Area as part of the National Forest system pursuant 

to all applicable law and incorporate the provisions of S. 2018 affecting management of the Area, including section 5(a)(3) and section 7 of S. 2018. 

Subsection (c) provides exceptions and clarifications to the Forest 

Service’s administration of the Area. 

Subsection (d) defines the Area and provides a map reference. 

Subsection (d)(3)(B) has been changed to provide that ‘‘changes 

that may be necessary pursuant to section 9(b), 9(d), 9(e), 14(c) and 

14(d) shall be made;’’. Subsection (e) prohibits the United States from conveying or exchanging any portion of the Area without specific authorization by 

Congress. 

Subsection (f) states that no use prohibited by the Wilderness Act 

(as of the date of enactment of this Act) may occur in the Wilderness portion of the Area; nor may gaming, mineral production, timber production, or any new uses or activities to which the Pueblo 

objects, occur anywhere in the Area. This subsection also closes the 

Area to the location of mining claims pursuant to the Mining Law 

of 1872. 

Subsection (g) clarifies that the creation of the T’uf Shur Bien 

Preservation Trust Area shall not affect the boundaries of, or repeal or disestablish the Sandia Mountain Wilderness or the Cibola 

National Forest. In addition, this subsection clarifies that establishing the Area does not in any way modify the existing boundary 

of the Pueblo grant. 

Section 5, subsection (a) sets forth the Pueblo’s rights and interests in the Area. 

Subsection (b) states that, except as provided in subsection 

5(a)(4) relating to traditional and cultural use of the Area by the 

Pueblo, the Forest Service shall continue to administer access to 

and use of the Area for all other purposes. 

Subsection (c) requires the United States to compensate the 

Pueblo if a future Act of Congress diminishes the wilderness and 

national forest designation of the Area by authorizing a use prohibited by section 4(f) or denies the Pueblo access for any traditional 

and cultural uses. The word ‘‘permanently’’ before the word ‘‘denies’’ has been removed from the subsection. 

Section 6, subsection (a) states that the Pueblo’s rights and interests in the Area do not include the ability to sell, lease or exchange 

any lands in the Area; any exemption from applicable Federal wildlife protection laws; any right to engage in any activity or use prohibited in section 4(f); or any right to exclude persons or governmental entities from the Area. 

Subsection (b) provides that no person who exercises traditional 

and cultural use rights as authorized in section 5(a)(4) may be 

prosecuted for a Federal wildlife offense requiring proof of a violation of a State law or regulation. 

Section 7 provides generally for management of the Area by the 

Forest Service, including consultation with the public and the 

Pueblo, procedures for consent by the Pueblo, and resolution of disputes. Subsection 7(a)(1)(A) has been changed to include the word 

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‘‘proposed’’ after the word ‘‘including’’ and before the word ‘‘new’’. Subsection 7(a)(3)(A) has been changed to provide that ‘‘Any person 

may file an action in the United States District Court for the District of New Mexico to challenge the Forest Service determinations 

of what constitutes a new or a modified use or activity.’’ Subsection 

7(c)(2)(B) has been changed to provide that ‘‘If the parties are unable to resolve the disputes within 3 days, either party may file an 

action for immediate relief in the United States District Court for 

the District of New Mexico, and the procedural exhaustion requirements set forth above shall not apply.’’ Section 8, subsection (a) allocates jurisdiction over crimes committed in the Area. 

Subsection (b) allocates civil jurisdiction in the Area. Subsection 

8(b)(3)(B) is amended to provide that the Pueblo shall have exclusive authority to regulate hunting and trapping conducted by Pueblo members as a traditional and cultural use within the Area, excluding that part of the Area contained within Sections 13, 14, 23, 

24, and the northeast quarter of Section 25 of T12N, R4E, and Section 19 of T12N, R5E, N.M.P.M., Sandoval County, New Mexico, 

shall be regulated by the Pueblo in a manner consistent with the 

regulations of the State of New Mexico concerning types of weapons 

and proximity of hunting and trapping to trails and residences. 

Section 9, subsection (a) excludes three subdivisions from the 

Area (totaling approximately 400 acres or about 4% of the Area). 

The subsection further clarifies that none of the Pueblo’s jurisdiction extends over these private lands. Accordingly, the jurisdiction 

of the State of New Mexico and local public bodies continue in effect. An exception to the State’s jurisdiction has been amended to 

provide that the jurisdiction of the State of New Mexico and local 

public bodies over the subdivisions and property interests therein 

shall continue in effect, except that upon the application of the 

Pueblo a tract comprised of approximately 35 contiguous, non-subdivided acres in the northern section of Evergreen Hills owned in 

fee by the Pueblo at the time of enactment of this Act, shall be 

transferred to the United States and held in trust for the Pueblo 

by the United States and administered by the Secretary of the Interior. Such trust land shall be subject to all limitations on use pertaining to the Area contained in this Act. 

Subsection (b) excludes the Piedra Lisa inholding (approximately 

160 acres) from the Area and provides that if the Secretary or the 

Pueblo acquires the Piedra Lisa tract, the tract is to be transferred 

to the United States and by virtue of this legislation is declared to 

be held in trust for the Pueblo by the United States and administered by the Secretary of the Interior subject to all limitations on 

use pertaining to the Area contained in this Act. The restriction 

contained in section 6(a)(4) is not to apply outside of the Forest 

Service System trails. The jurisdiction of the State of New Mexico 

and local public bodies over the Piedra Lisa tract and property interests are to continue in effect until the tract is acquired by the 

Secretary or the Pueblo. 

Subsection (c) excludes certain facilities on the crest of Sandia 

Mountain from the Area and recognizes the pre-existing jurisdictional status of those lands, and clarifies that the Pueblo will have 

no civil or criminal jurisdiction for any purposes, including adjudicatory, taxing, zoning, regulatory or any other form or jurisdicVerDate 0ct 09 2002 21:02 Oct 21, 2002 Jkt 019010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR321.XXX SR321
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tion, over the lands on which the crest facilities are located and 

property interests therein, and the laws of the Pueblo are not to 

apply to those lands. 

Subsection (d) excludes certain lands described in an existing 

special use permit from the Area and recognizes the pre-existing 

jurisdictional status of those lands. The section further provides 

that in the event the special use permit, during its existing term 

or any future terms or extensions, requires amendment to include 

other lands in the Area necessary to realign the existing or any future replacement tram line, associated structures, or facilities, the 

lands subject to that amendment shall thereafter be excluded from 

the Area and are to have the same status under this Act as the 

lands currently described in the special use permit. In addition, the 

section provides that any lands dedicated to aerial tramway and related uses and associated facilities that are excluded from the special use permit through expiration, termination or the amendment 

process are to thereafter be included in the Area but only after 

final agency action that is no longer subject to any appeals. 

Subsection (e) excludes the La Luz tract, owned by the Pueblo, 

from the Area and provides that upon application by the Pueblo, 

the tract is to be transferred to the United States and held in trust 

for the Pueblo by the United States and administered by the Secretary of the Interior subject to all limitations on use pertaining to 

the Area contained in this Act. The restriction contained in section 

6(a)(4) is not to apply outside of Forest Service system trails. 

Subsection (f) recognizes a right of access that landowners in the 

Evergreen Hills subdivision have over Forest Service Road 333D. 

The subsection requires the Secretary of Agriculture to maintain 

the road in adequate condition in accordance with section 1323(a) 

of the Alaska National interest Lands Conservation Act (16 U.S.C. 

3210).

Subsection (g) expressly recognizes that other Pueblo-owned 

lands within the subdivisions are excluded from the Area and provides that such lands are to be subject to the jurisdictional provisions of subsection (a) of section 9. 

Subsection (h) requires the Secretary of the Interior to grant (1) 

irrevocable rights of way to Bernalillo County for identified roads 

with the condition that such rights of way may not be expanded 

without the Pueblo’s written consent, and (2) irrevocable utility 

rights of way across Pueblo lands to service providers serving the 

subdivisions. 

Subsection (i) requires the Secretary of the Interior to grant to 

the Forest Service irrevocable rights of way for portions of identified trails that cross Pueblo land. 

Section 10(a) permanently extinguishes, except for the rights and 

interests in and to the Area specifically recognized in sections 4, 5, 

7, 8, and 9, all Pueblo claims in and to lands in the Area. 

Subsection (b) permanently extinguishes any Pueblo claims to 

right, title and interest of any kind, including aboriginal claims, in 

and to the subdivisions and property interests therein, as well as 

related boundary, survey, trespass, and monetary damage claims. 

Subsection (c) permanently extinguishes any Pueblo claims in 

and to the lands described in the special use permit and the lands 

on which the crest facilities are located. 

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Subsection (d) references that the Pueblo has agreed to the extinguishment of its claims pursuant to subsections (a), (b), and (c). 

Subsection (e) states that the recognition of the Pueblo’s rights 

and interests in this Act constitutes adequate consideration for the 

Pueblo’s agreement to the extinguishment of the Pueblo’s claims in 

this section and the right-of-way grants contained in section 9. 

Subsection (e) provides that it is the intent of Congress that those 

rights and interests may only be diminished by a future Act of Congress specifically diminishing such rights, with express reference to 

this Act. 

Section 11, subsection (a) states that this Act recognizes only 

enumerated rights and interests, and clarifies that no additional 

rights, interests, obligations, or duties shall be created by implication. 

Subsection (b) provides that this act does not modify or affect any 

presently existing valid private property rights that are associated 

with private lands in the Area; nor are such rights subject to the 

Pueblo’s right to withhold consent to new uses in the Area. 

Subsection (c) states that this act shall not be construed as precedent for any other situation involving the management of the National Forest System. 

Subsection (d) precludes anything in this Act, except as provided 

in subparagraph 8(b)(3), to be construed as affecting the responsibilities of the State of New Mexico with respect to fish and wildlife, including the regulation of hunting, fishing, or trapping in the 

Area. 

Subsection (e) amends the Federal Land Policy and Management 

Act to require that any corrections made to patents or documents 

of conveyance pursuant to 43 U.S.C. 1746, that affect lands administered by another Federal agency, first require the approval of the 

head of such other agency. 

Section 12, subsection (a) provides that judicial review to enforce 

the provisions of this Act is allowed to the extent permitted under 

the Administrative Procedure Act. 

Subsection (b) provides for a limited waiver of sovereign immunity against the Pueblo by allowing suits for declaratory judgment 

or injunctive relief under the Act. 

Subsection (c) provides that venue for any suit shall lie only in 

the United States District Court for the District of New Mexico. 

Section 13 states that the Act shall take effect immediately upon 

enactment. 

Section 14(a) authorizes the appropriation of funds necessary to 

carry out the provisions of the Act including those sums necessary 

to acquire ownership or other interest in lands within the external 

boundaries of the Area as authorized in subsection (d).

Section 14(b) authorizes the Secretary of Agriculture to accept 

contributions from the Pueblo or from other persons or governmental entities for the purpose of performing and completing a survey of the Area or otherwise for the benefit of the Area in accordance with the terms of the Act. Section 14(b) also requires the survey be completed within one year from the date of enactment of the 

Act. 

Section 14(c) provides for a land exchange between the Pueblo 

and the Secretary of Agriculture of National Forest lands outside 

the Area and contiguous to the northern boundary of the Pueblo’s 

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Reservation within sections 10, 11, and 14 of T12N, R4E, 

N.M.P.M., Sandoval County, New Mexico excluding Wilderness 

land, for lands owned by the Pueblo in the Evergreen Hills subdivision in Sandoval County contiguous to National Forest land, and 

the La Luz tract in Bernalillo County. 

Section 14(c) also authorizes the Secretary of Agriculture to either make or accept a cash equalization payment in excess of 25 

percent of the total value of the lands or interests transferred out 

of Federal ownership, notwithstanding section 206(b) of the Federal 

Land Policy and Management Act (43 U.S.C. 1716(b)). 

Section 14(c) further provides that any funds received by the Secretary of Agriculture as a result of the exchange are to be deposited 

in the fund established under the Act of December 4, 1967, otherwise known as the Sisk Act (16 U.S.C. 484a) and are to be available to purchase non-Federal lands within or adjacent to the National Forests in the State of New Mexico. 

Section 14(c) declares that all lands exchanged or conveyed to the 

Pueblo are to be held in trust for the Pueblo by the United States 

and added to the Pueblo’s Reservation subject to all existing and 

outstanding rights. This land is to remain in its natural state and 

not be subject to commercial development of any kind. 

Lands exchanged or conveyed to the Forest Service under the authority of section 14(c) are to be subject to all limitations on use 

applicable to the Area under the provisions of this Act. 

The land exchange offer required to be made under the authority 

of section 14(c) is to be made within six months from the date of 

enactment of this Act and, if the exchange does not occur within 

that time frame, the Secretary of Agriculture must submit a report 

to the Senate Committee On Energy and Natural Resources and 

the House Committee on Resources explaining the reasons for the 

failure to make the offer and assessing the need for any additional 

legislation to effect the exchange. If additional legislation is not 

necessary, the Secretary is to proceed with the exchange pursuant 

to existing law. 

Section 14(d)(1) authorizes the Secretary of Agriculture to acquire lands owned by the Pueblo within the Evergreen Hills Subdivision in Sandoval County or any other privately owned lands inside the exterior boundaries of the Area. The boundaries of the 

Cibola National Forest and the Area are to be adjusted to encompass any lands acquired pursuant to this section. 

In the event the Pueblo acquires the Piedra Lisa tract, section 

14(d)(2) requires the Secretary of Agriculture to compensate the 

Pueblo for the fair market value of the right of way established 

pursuant to section 9(i)(3) and the conservation easement established by the limitations on the use of the Piedra Lisa tract pursuant to section 9(b) of the Act. 

Section 14(e)(1) directs the Secretary of Agriculture to reimburse 

the Pueblo, the County of Bernalillo, New Mexico, and any person 

who owns or has owned property within the exterior boundaries of 

the Area as designated on the map for the actual and direct costs 

incurred but not reimbursed as a result of their participation in the 

litigation or settlement of the Sandia Pueblo’s claim to Sandia 

Mountain in the case of Pueblo of Sandia v. Babbitt, Civ. No. 94–

2624 HHG (D.D.C.). Costs eligible for reimbursement under this 

section include dues or payments to a homeowner association for 

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the purpose of legal representation and other legal fees and related 

expenses. 

Section 14(e)(2) limits reimbursement awards made under the 

terms of section 14(e) in lieu of awards of funds otherwise available 

under the Equal Access to Justice Act (24 U.S.C. 2412). 

Section 14(e)(3) authorizes the Secretary of the Treasury to make 

reimbursement payments to qualifying individuals or entities 

under this section out of funds not otherwise appropriated. 

Section 14(e)(4) requires that applications for reimbursement 

must be filed with the Department of the Treasury, Financial Management Service, Washington, D.C., no later than 180 days from 

the date of enactment of this Act. 

Section 14(e)(5) limits a party to reimbursement of no more than 

$750,000 and the total of all claims paid under the Act to no more 

than $3,000,000.

COST AND BUDGETARY CONSIDERATIONS

The following estimate of the cost of this measure has been provided by the Congressional Budget Office:

U.S. CONGRESS, 

CONGRESSIONAL BUDGET OFFICE, 

Washington, DC, August 21, 2002. 

Hon. JEFF BINGAMAN, 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. 2018, the T’uf Shur Bien 

Preservation Trust Area Act. 

If you wish further details on this estimate, we will be pleased 

to provide them. The CBO staff contact is Megan Carroll. 

Sincerely, 

BARRY B. ANDERSON

(For Dan L. Crippen, Director). 

Enclosure.

S. 2018—T’uf Shur Bien Preservation Trust Area Act 

Summary: S. 2018 would resolve a land dispute between the federal government and the Pueblo of Sandia, a federally recognized 

Indian tribe. CBO estimates that enacting S. 2018 would increase 

direct spending by $3 million in 2003 and governmental receipts by 

less than $500,000 a year. Because the bill would affect direct 

spending and receipts, pay-as-you-go procedures would apply. 

S. 2018 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA). 

The provisions of this bill are generally consistent with a settlement agreement signed by the Pueblo of Sandia and would impose 

no costs on the tribe other than those it would incur voluntarily as 

a party to that agreement. 

Background and summary of major provisions: The underlying 

dispute giving rise to S. 2018 involves the Pueblo of Sandia’s claim 

to roughly 10,000 acres of federal lands currently administered by 

the Forest Service as part of the Sandia Mountain Wilderness and 

Cibola National Forest in New Mexico. The tribe believes that the 

12

federal government mistakenly excluded those lands from the 

tribe’s original land grant due to an inaccurate land survey conducted by the Department of the Interior in 1859. The tribe filed 

an action against the federal government in 1994. Several other 

parties, including local governments, private landowners, and a private company subsequently became involved in that litigation. 

While the case was pending, all of the parties began to negotiate 

a settlement agreement which eventually was signed in April 2000, 

but only by the tribe, the federal government, and a private company. 

S. 2018 would largely implement that settlement agreement. In 

doing so, the bill would extinguish the tribe’s claims to the disputed lands. In exchange, the bill would establish the T’uf Shur 

Bien Preservation Trust Area on 9,890 acres of those lands. The 

Forest Service would retain ownership of the proposed area and 

continue to manage it as part of the national forest system, but S. 

2018 would give the Pueblo of Sandia certain rights to use the 

area. In addition, the bill would direct the Forest Service to manage the proposed area in consultation with the tribe, establish a 

process for resolving disputes over land-use decisions, and specify 

other conditions for future management of the area. S. 2018 also 

would direct the Secretary of the Interior to take into trust on behalf of the Pueblo of Sandia certain lands currently owned by the 

tribe. Finally, S. 2018 would provide up to $3 million in new direct 

spending authority for the Secretary of the Treasury to reimburse 

certain costs incurred by participants in court proceedings related 

to the land dispute. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 2018 is shown in the following table. The costs 

of this legislation fall within budget function 300 (natural resources 

and environment).

By fiscal year, in millions of dollars—

2003 2004 2005 2006 2007 

CHANGES IN DIRECT SPENDING 1

Estimated budget authority .......................................................................... 3 0 0 0 0 

Estimated outlays ......................................................................................... 3 0 0 0 0 

1 S. 2018 also would affect revenues and spending subject to appropriation, but CBO estimates that such effects would not be significant in any year. 

Basis of estimate 

For this estimate, CBO assumes that S. 2018 will be enacted by 

the end of fiscal year 2002. CBO estimates that the bill would increase direct spending by $3 million in 2003 and would have a negligible effect on governmental receipts (revenues). We also estimate 

that administrative costs of federal agencies would increase by less 

than $500,000 annually, assuming appropriation of the necessary 

amounts.

Direct spending 

S. 2018 would authorize the Secretary of the Treasury to spend, without further appropriation, up to $3 million to reimburse parties to the lawsuit brought against the federal government by the 

Pueblo of Sandia for certain costs incurred to participate in that 

lawsuit. Based on information from the tribe and other eligible parVerDate 0ct 09 2002 21:02 Oct 21, 2002 Jkt 019010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR321.XXX SR321
13

ties, CBO estimates that the Secretary would spend $3 million for 

such reimbursements in 2003. 

S. 2018 specifies that any reimbursements made pursuant to the 

bill would be in lieu of amounts that might otherwise be paid 

under the Equal Access to Justice Act. That act authorizes the federal government, under certain circumstances, to reimburse legal 

fees and expenses of parties who successfully sue the federal government. Under current law, the tribe is the only party that might 

qualify for reimbursements under that act, but whether the tribe 

would receive such reimbursements and when that might occur is 

very uncertain. Hence, CBO assumes that any forgone spending 

under the Equal Access to Justice Act would be negligible, and we 

estimate that the net increase in direct spending under S. 2018 

would total about $3 million. 

Revenues 

S. 2018 would authorize the Secretary of Agriculture to accept 

and use contributions from the Pueblo of Sandia or other nonfederal entities for certain administrative activities and the general 

benefit of the proposed trust area. Based on information from the 

Forest Service, we estimate that any cash contributions, which are 

recorded on the budget as governmental receipts, would not be significant in any year. 

Spending subject to appropriation 

Based on information from the Forest Service and the Department of the Interior, CBO estimates that those agencies would 

spend less than $500,000 a year to implement S. 2018, assuming 

appropriation of the necessary amounts. According to the Forest 

Service, designating the T’uf Shur Bien Preservation Trust Area 

and formalizing the process of consulting with the tribe on the 

management of lands within that area would not significantly affect the agency’s costs to manage them. Likewise, the Department 

of the Interior expects that taking lands into trust on behalf of the 

tribe would not significantly increase federal costs. 

Pay-as-you-go considerations: The Balanced Budget and Emergency Deficit Control Act sets up pay-as-you-go procedures for legislation affecting direct spending or receipts. The net changes in 

outlays and governmental receipt that are subject to pay-as-you-go 

procedures are shown in the following table.

By fiscal year, in millions of dollars—

2003 2004 2005 2006 2007 2008 2009 2010 2011 2012

Changes in outlays ....................... 3 0 0 0 0 0 0 0 0 0

Changes in receipts ...................... 0 0 0 0 0 0 0 0 0 0

Intergovernmental and private-sector impact: S. 2018 contains no 

intergovernmental or private-sector mandates as defined in UMRA. 

The provisions of this bill are generally consistent with a settlement agreement signed by the Pueblo of Sandia, and would impose 

no costs on the tribe other than those it would incur voluntarily as 

a party to that agreement. 

Estimate prepared by: Federal cost: Megan Carroll; impact on 

State, local, and tribal governments: Marjorie Miller; impact on the 

private sector: Cecil McPherson. 

14

Estimate approved by: Robert A. Sunshine, 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. 2018. The bill is not a regulatory measure in the sense of imposing Government-established standards or significant economic responsibilities on private individuals and businesses. The bill established certain rights and interests within an area of the Cibola National Forest for the benefit of Sandia Pueblo in return for a final 

and permanent resolution of the Pueblo’s ownership claim to 

Sandia Mountain. 

No personal information would be collected in administering the 

program. Therefore, there would be no impact on personal privacy. 

Little additional paperwork would result from the enactment of 

S. 2018, as ordered reported. 

EXECUTIVE COMMUNICATIONS

The pertinent legislature report received by the Committee on 

Energy and Natural Resources from the Department of the Interior 

setting forth Executive agency recommendations relating to S. 2018 

is set forth below:

DEPARTMENT OF THE INTERIOR, 

OFFICE OF THE SECRETARY, 

Washington, DC, May 1, 2002. 

Hon. JEFF BINGAMAN, 

Chairman, Committee on Energy and Natural Resources, 

U.S. Senate, Washington, DC. 

DEAR MR. CHAIRMAN: This letter sets forth the views of the Department of the Interior on S. 2018, a bill to create the T’uf Shur 

Bien Preservation Trust Area (‘‘Area’’) within the Cibola National 

Forest. S. 2018 would implement, with some modifications, the 

Agreement of Compromise and Settlement signed by the Pueblo of 

Sandia (‘‘Pueblo’’), the Sandia Peak Tram Company, and the 

United States on behalf of the Department of Agriculture, Justice, 

and the Interior on April 4, 2000. The questions of ownership and 

use of approximately 10,000 acres in the Cibola National Forest 

have been the subject of debate for nearly 20 years in both the judicial and executive branches of government and among the affected 

parties. The Administration supports a legislative solution and is 

willing to work with the New Mexico delegation and members of 

the Committees to that end. 

I have reviewed relevant portions of the record in both the Executive Branch and the Judicial Branch. I have recently taken the 

opportunity to look at the Area from both the ground and in the 

air and I have talked to representatives of the parties most affected 

by the legislative proposal. I quickly concluded what is perhaps obvious to the Committees; all sides are tired of litigating this matter 

and the non-federal parties are concerned about the uncertainty of 

the administrative process should the settlement agreement lapse 

in November 2002. I found broad support for a legislative solution. 

15

The following comments are offered in a spirit of reasonable compromise toward finality of the dispute. 

Background 

The Pueblo of Sandia claims the western face of Sandia Mountain, which is part of the Sandia Mountain Wilderness to the 

northeast from Albuquerque, New Mexico. The Pueblo of Sandia’s 

claim is based on a 1748 land grant from Spain to the Pueblo and 

an 1858 Act of Congress that confirmed the grant. The 1858 Act 

directed that a survey of the grant be made and a patent issued 

to the Pueblo. The survey was conducted in 1859 and a patent was 

issued in 1864. The Pueblo claims that approximately 10,000 acres 

were mistakenly excluded from the grant due to a survey error. 

This area is now part of the Cibola National Forest and the Sandia 

Mountain Wilderness and extends generally from the foothills to 

the crest of the main ridge of the Sandia Mountains.

In 1983, the Pueblo first approached the Department requesting 

a resurvey of their Spanish land grant and the issuance of a new 

patent claiming the eastern boundary of the grand had been incorrectly surveyed in 1859. In 1988, Solicitor Ralph Tarr issued an 

Opinion which found that no resurvey was warranted. 

In 1994 the Pueblo sued the Department of the Interior and the 

Department of Agriculture, claiming that the Department of the Interior’s refusal to resurvey the grant was arbitrary and capricious. 

The United States District Court for the District of Columbia vacated the Tarr Opinion and remanded the issue to the Department 

in 1998. An appeal was filed, but proceedings were strayed for over 

a year pending mediation efforts among the Pueblo, the Sandia 

Peak Tram Company, the United States, the City of Albuquerque, 

the County of Bernalillo, and the Sandia Mountain Coalition. These 

mediation efforts resulted in the April 2000 Agreement of Compromise and Settlement, which was signed by the Pueblo, the 

Sandia Peak Tram Company, and the United States (represented 

by the Departments of Agriculture, Interior, and Justice). In November 2000 the Court of Appeals of the District of Columbia dismissed the appeal on the grounds that it lacked jurisdiction because the District Court’s decision was not a final decision. 

On January 19, 2001, Solicitor John Leshy issued a new opinion 

which concluded that the 1859 survey of the Pueblo of Sandia’s 

grant was erroneous. Mr. Leshy determined that a resurvey was 

warranted, but recommended that the Department conduct a resurvey of the grant only if the April 2000 Agreement of Compromise 

and Settlement was not ratified by Congress. The Agreement binds 

the parties until November 15, 2002, and will become permanent 

only through the enactment of legislation. 

S. 2018

Pursuant to the terms of S. 2018, Congress would authorize the 

establishment of the Area within the Cibola National Forest and 

the Sandia Mountain Wilderness. Title to the Area would remain 

in the United States while granting unrestricted access to the Area 

to the members of the Pueblo or the members of any other federally recognized Indian tribe authorized by the Pueblo to enter the 

Area for traditional and cultural uses. In addition, the Sandia 

Mountain Wilderness would be preserved in perpetuity as part of 

16

the Cibola National Forest and continue to be administered by the 

Secretary of Agriculture though the Forest Service. Gaming, mineral, or timber production in the Area would be prohibited under 

the bill. 

Under S. 2018, the Pueblo, as well as Bernalillo and Sandoval 

Counties, would have the right to give consent or withhold consent 

to new uses of the Area. The Pueblo would also be given the right 

to consultation regarding modified uses and would have exclusive 

authority to administer access to the Area for traditional and cultural uses by its members or the members of any other federally 

recognized Indian tribe. 

The legislation would also extinguish the Pueblo’s claim of title 

to the Area would therefore clear the titles of private landowners 

in the Area. S. 2018 would grant the Pueblo the right to compensation, as if it were an owner in fee, if a subsequent act of Congress 

were to diminish the wilderness and National Forest character of 

the Area. 

S. 2018 grants irrevocable rights of way in perpetuity to the 

County of Bernalillo for roads in the Sandia Heights South Subdivision and Juan Tabo Canyon and the Crest Spur Trail (which 

crosses the La Luz tract). Modification or expansion of the rights 

of way for those roads would be subject to the Pueblo’s written consent. The Secretary of the Interior would be required to grant irrevocable rights of way in perpetuity across Pueblo lands in existing utility corridors for utilities providing services to the private 

landowners in the subdivisions on Sandia Mountain. 

The aerial tramway, along with the crest facilities on Sandia 

Mountain, are excluded from the Area under the bill. Thus, the 

Pueblo would not have any civil, criminal, or administrative jurisdiction over the Area. However, the La Luz tract, which is owned 

by the Pueblo, would be transferred to the United States and held 

in trust for the Pueblo, subject to all limitations on use pertaining 

to the Area. 

The bill would not provide for the United States to take into 

trust the property owned by the Pueblo in the Evergreen Hills subdivision, but instead directs the Secretary of Agriculture to convey 

NFS land within the subdivision to the Pueblo. 

Conclusion 

The United States, including the Department of the Interior, is 

bound by the existing Settlement Agreement until November 2002. 

It is the Department’s view that the best way, and possibly the 

only way, to resolve this longstanding dispute is through legislation. To that end, we have attached some detailed comments on S. 

2018. 

An identical letter has been sent to the Senate Committee on Indian Affairs. 

The Office of Management and Budget has advised that there is 

no objection to the presentation of this report from the standpoint 

of the Administration’s program. 

Sincerely, 

WILLIAM G. MYERS III, 

Solicitor.

17

ATTACHMENT

In addition to our letter, we are providing the following 

detailed comments: 

Section 4(c)(3)—Bernalillo and Sandoval Counties are 

provided the right to consent or withhold consent to new 

uses in the Area. This provision parallels the right given 

to the Pueblo in Section 5(a)(3)(i). The Administration supports local governmental involvement in federal land management decisions. It is not clear, however, that either of 

the two counties would exercise this authority if given to 

them. If the authority to veto new uses remains in the bill, 

those uses should be defined with particularity in the legislation so that both the federal agency and the party exercising the right have some direction from Congress as to 

what is intended. A definition of new uses is contained in 

the Management Plan which is an attachment to the Settlement Agreement, and this would be a good place to 

start. 

Section 12—The confusion and concern arising out of the 

lack of a definition of new uses, as discussed above, illustrate the concerns generally with Section 12. That section 

ratifies and confirms the Settlement Agreement and Management Plan. The Administration believes that it would 

be better to legislate all necessary provisions of the Settlement Agreement and the Management Plan and forego incorporating these documents by reference. Otherwise, the 

potential for protracted litigation could arise after goodfaith efforts to reconcile the law, the Agreement, and the 

Plan fail. 

Section 4(g)—The last sentence of this section could be 

clarified if rewritten to read, ‘‘Establishment of the Area 

does not in any way modify the existing boundary of the 

Pueblo grant as depicted on the map defined at Section 

3(b).’’ This will eliminate any confusion as to the definition 

of the ‘‘boundary’’ which has been at the heart of the dispute for nearly twenty years. 

Section 7(b)(3)(B)—This section is one of several sections 

that uses the phrase ‘‘traditional and cultural.’’ Further 

definition of this phrase would be useful. 

Section 14(d)—The first sentence regarding land acquisition is ambiguous because it could be read to encompass, 

for example, the La Luz tract, as ‘‘any other privately held 

lands within the Area.’’ Under Section 8(e), the La Luz 

tract cannot be acquired by the Secretary of Agriculture 

because this tract is transferred to the United States to be 

held in trust for the Pueblo and to be administered by the 

Secretary of the Interior. 

Other comments 

The Committee should consider a new section that 

would state that, except as provided by Section 5(c)(1), 

nothing shall be construed in this Act as a legislative exercise of the power of eminent domain. 

18

Some parties have indicated that use of the term ‘‘Trust’’

in the title of the bill raises the question of whether the 

entire Area is to be held in trust by the United States, 

similar to the La Luz tract in Section 8(e). This clearly is 

not the intent, as explained in the Chairman’s remarks at 

page S1940 of the March 14, 2002, Congressional Record. 

However, to address any concerns in this regard, either 

‘‘Trust’’ should be removed from the title and similar references in the bill or the Chairman’s explanation should be 

incorporated into the bill.

In addition, the testimony provided by the Department of Agriculture and the Department of Justice at the joint committee hearing follows:

TESTIMONY OF THOMAS L. SANSONETTI, ASSISTANT ATTORNEY GENERAL, ENVIRONMENT AND NATURAL RESOURCES

DIVISION, DEPARTMENT OF JUSTICE

Mr. Chairman and members of the Committee, I am 

Tom Sansonetti, Assistant Attorney General for the Environment and Natural Resources Division of the Department of Justice. Thank you for the opportunity to testify 

before you today on S. 2018, Senator Bingaman’s bill that 

would create the T’uf Shur Bien Preservation Trust Area 

within the Cibola National Forest and attempt to effectuate the settlement agreement entered into by the Pueblo 

of Sandia, the United States, and the Sandia Peak Tram 

Company on April 4, 2000. This matter is of great importance to the Pueblo of Sandia, the people of the State of 

New Mexico, and the federal government. In my testimony 

today, I would like to give you some background on the 

history of the Pueblo’s land claim and briefly discuss the 

settlement agreement. 

BACKGROUND

The underlying dispute giving rise to the settlement 

agreement and S. 2018 addresses the Pueblo’s claim to a 

10,000 acre tract of land, now administered by the U.S. 

Forest Service as part of the Sandia Mountain Wilderness 

and Cibola National Forest. The Pueblo believes this tract 

of land was erroneously excluded from the government’s 

recognition of the Pueblo’s ancient Spanish land grant due 

to an inaccurate survey conducted by the Department of 

the Interior in 1859. 

The Pueblo is located on the east side of the Rio Grande 

north of Albuquerque, New Mexico. In 1748, the Spanish 

colonial government granted a parcel of land to the Pueblo. 

An 1858 Act of Congress confirmed the grant and directed 

the Commissioner of the Land Office to conduct a survey 

to designate the exact boundaries of the parcel. An 1859 

survey of the Pueblo Grant, known as the Clements survey, showed the eastern boundary along the top of a foothill on the western slope of Sandia Mountain, rather than 

on the crest of the mountain. In 1864, President Abraham 

19

Lincoln issued a patent to the Pueblo which adopted the 

metes-and-bounds description of the 1859 survey. 

The Pueblo first contacted the Department of the Interior in 1983, contending that the 1859 survey had mistakenly set the wrong boundary, excluding about 10,000 acres, 

and that the 1864 patent was therefore erroneous. The 

Pueblo requested a resurvey of their land grant and the 

issuance of a new patent designating the true eastern 

boundary as the crest of the mountain. In December 1988, 

the Department of the Interior Solicitor Ralph Tarr issued 

an Opinion, in which Secretary Donald Hodel concurred, 

denying the Pueblo’s claim that the eastern boundary of 

the grant should be resurveyed and located along the crest 

of the Sandia Mountain. 

In 1994, the Pueblo filed an action against the Secretaries of the Interior and Agriculture in the U.S. District 

Court for the District of Columbia. The Pueblo sought an 

injunction requiring the Department of the Interior to correct the allegedly erroneous boundary.

In January 1995, several individual landowners and the 

Sandia Mountain Coalition, an unincorporated association 

of landowners living in subdivisions within the boundaries 

of the National Forest, moved for and were granted status 

as intervenor-defendants in the case. Two months later, 

the Pueblo amended its complaint to expressly disclaim 

any right, title, or interest in land held in private ownership within the disputed tract. The County of Bernalillo 

was also granted intervenor-defendant status, and the City 

of Albuquerque and the Sandia Peak Tram Company became involved as amicus curiae.

In July 1998, the district court issued an Opinion and 

Order setting aside the Tarr Opinion and remanding the 

matter to the Department of the Interior for further proceedings. The court found that the Department’s decision 

not to resurvey the grant boundary was arbitrary and capricious because it accorded insufficient weight to the 

canon of construction that ambiguities should be construed 

in favor of Indians and because it over-emphasized the 

presumption of survey regularity. 

Thereafter, in August and September 1998, the United 

States and the intervenor-defendants filed notices of appeal from the district court’s decision with the D.C. Circuit. However, after the appeals were filed, all of the parties involved in the litigation decided to engage in a cooperative effort to resolve the case without further litigation. 

In October 1998, the D.C. Circuit granted a motion to hold 

the appeals in abeyance pending these settlement negotiations. 

Negotiations began in earnest in December 1998, when 

the federal agencies, and the Pueblo, County, Coalition, 

City, and Tram representatives inaugurated a formal mediation process with the assistance of a third-party mediator in New Mexico. Despite progress being made by the 

named parties in the lawsuit over the course of several 

months, in August 1999 the intervenor-defendants and the 

20

City of Albuquerque withdrew from the mediation process. 

Nonetheless, the named parties in the litigation—the 

Pueblo and the federal agencies—along with the Tram 

Company, continued the negotiations process which eventually produced a settlement agreement signed by the parties on April 4, 2000. In November of that year, the appeal 

was dismissed by the U.S. Court of Appeals for the District 

of Columbia Circuit for lack of appellate jurisdiction. This 

decision granted a conditional motion by the United States 

to dismiss its appeal, contingent upon the D.C. Circuit actually ruling that jurisdiction would not exist over an appeal being pressed solely by the intervenor-defendants. 

Also in November 2000, the Pueblo renewed its petition 

to resurvey the boundary along the crest of the mountain, 

reiterating their lack of interest in the inholdings. In addition, the County of Bernalillo and the Sandia Mountain 

Coalition contended that the Clements survey was erroneous in that the top of the foothill on the western slope 

of Sandia Mountain created too large of an area for the 

Pueblo. In response to these requests, Interior Solicitor 

John Leshy conducted another review, and on January 19, 

2001, issued a new opinion that reconsidered the Tarr 

Opinion’s conclusion. Solicitor Leshy concluded that the 

evidence showed that the Clements survey of the eastern 

boundary of the Pueblo’s land grant was erroneous and 

should be set aside and, if necessary, a resurvey should be 

conducted. The Opinion acknowledged the settlement of 

the Pueblo’s claim, which would obviate the need for a resurvey, and put in abeyance any implementation of the 

Opinion unless and until the Congress failed to pass legislation ratifying the settlement by November 15, 2002. 

SETTLEMENT AGREEMENT

The Agreement of Compromise and Settlement among 

the Pueblo of Sandia, the Sandia Peak Tram Company, 

and the United States on behalf of the Departments of the 

Interior and Agriculture, would settle the Pueblo’s land 

claim suit upon ratification by an Act of Congress. The 

Settlement addresses many other important issues pertaining to the management of relevant portions of the 

Cibola National Forest, as well as questions of access 

across Pueblo lands to privately owned areas in the vicinity of the claim area. 

Some of the highlights of the settlement are as follows: 

Creation of the T’uf Shur Bien Preservation Trust Area 

The claim area would be renamed the ‘‘T’uf Shur Bien’’

(a Tiwa term meaning ‘‘Green Reed Mountain’’) Preservation Trust Area and would remain part of the Sandia 

Mountain Wilderness and the Cibola National Forest. 

The United States would retain title to the Area. 

The Area would be established for the following purposes: to recognize and protect the Pueblo’s rights and interests in and to the Area; to preserve in perpetuity the 

wilderness and National Forest character of the Area; and 

21

to respect and assure the public’s use and enjoyment of the 

Area. 

Administration of the area by the Forest Service 

The Secretary of Agriculture would continue to administer the Area as wilderness and National Forest under the 

Wilderness Act, most federal wildlife-protection laws (including the Endangered Species Act), other laws applicable 

to the National Forest System, and an Area-specific management plan. 

Statues (including their associated regulations) administered by the Forest Service, other than the Wilderness Act 

and applicable federal wildlife protection laws, do not 

apply to Pueblo traditional and cultural uses. 

Pueblo rights 

The Pueblo’s right of access to the Area for traditional 

and cultural uses, except for regulation by the Wilderness 

Act and applicable federal wildlife protection laws, as described above, would be compensable if violated. 

The Pueblo would have a compensable interest in the 

perpetual preservation of the wilderness and National Forest character of the Area. If Congress ever impaired this 

interest by authorizing uses, such as commercial mineral 

or timber production, that are banned from the Area by 

the ratifying legislation, the Pueblo again would be compensated as though it held a fee-title interest in the affected portion of the Area. 

The Pueblo would have specified, non-compensable 

rights to participate in the management of the Area under 

the management plan. 

The Pueblo would have exclusive authority to administer 

access to the Area by other tribes for traditional and cultural uses. 

Rights of way 

The private landowners, the general public, and the Forest Service must cross Pueblo land to reach the subdivisions and the claim area. As part of the settlement, the 

Pueblo would grant perpetual rights of way to the County 

and the Forest Service for roads, trails, and utilities across 

Pueblo lands adjacent to the Area. 

Jurisdiction 

The ratifying legislation would provide a scheme for the 

exercise of governmental jurisdiction over the Area, recognizing roles for the United States, the State of New Mexico, and the Pueblo. 

Extinguishment of claims 

The settlement would provide for the comprehensive and 

permanent extinguishment of the Pueblo’s claims to: (a) 

lands within the Area; (b) the subdivisions and other privately owned tracts; (c) the lands described in the Tram’s 

special use permit; and (d) all crest facilities and developVerDate 0ct 09 2002 21:02 Oct 21, 2002 Jkt 019010 PO 00000 Frm 00021 Fmt 6659 Sfmt 6969 E:\HR\OC\SR321.XXX SR321
22

ments such as the electronic site. The ratifying legislation 

would clear all titles, both of the United States and the 

homeowners. 

Withdrawal option 

The settlement provides that either the Pueblo or the 

United States may withdraw from the Settlement Agreement if either House of Congress passes ratifying legislation that is deemed inconsistent with the terms of the Settlement Agreement in a manner that materially prejudices 

their individual interests. 

CONCLUSION

The parties in this matter expended a great deal of time 

and effort to reach agreement and to produce a document 

which resolves many complex issues. The Administration 

supports a legislative solution and is willing to work with 

the New Mexico delegation and the members of the Committees to achieve that end. 

This concludes my testimony. Mr. Chairman, I look forward to working with you and other members of the Committees on this legislation and would be pleased to answer 

any questions you may have. 

STATEMENT OF NANCY BRYSON, GENERAL COUNSEL, DEPARTMENT OF AGRICULTURE

Mr. Chairman and members of the committees: 

My name is Nancy Bryson, General Counsel, Department of Agriculture. Thank you for the opportunity to testify today on S. 2018, the ‘‘T’uf Shur Bien Preservation 

Trust Area Act.’’ This bill proposes to resolve the longstanding land title dispute of the Pueblo of Sandia with 

the Federal Government concerning rights arising under a 

1748 land grant from the King of Spain and subsequently 

recognized by Congress. The Administration supports a 

legislative solution and is willing to work with the New 

Mexico delegation, and Members of the Committees to 

achieve that end. 

The T’uf Shur Bien Preservation Trust Area, as designated by S. 2018, would consist of approximately 10,000 

acres within the Cibola National Forest. Located a few 

miles northeast of Albuquerque, the claim area lies within 

both Bernalillo and Sandoval Counties. Much of the claim 

area also is within the Sandia Mountain Wilderness designated by the Congress in the Endangered American Wilderness Act of 1978 (P.L. 95–237). The area is one of natural beauty and solitude, and provides significant opportunities for public recreation. It also is an area of religious 

and cultural significance for Native Americans and others. 

This title dispute has been ongoing for almost two decades during which time there have been opinions regarding title to the land by the General Counsel of the Department of Agriculture and the Solicitor of the Department of 

the Interior, as well as litigation in U.S. District Court. A 

23

decision remanding the matter for the Department of the 

Interior was appealed to the D.C. Circuit by the government on jurisdictional grounds. 

Between 1998 and 2000, while the case was pending in 

the D.C. Circuit, a mediated effort to settle the Sandia 

land claim was undertaken among all parties to the litigation including the Pueblo, the Federal Government, a coalition of private landowners and recreation groups, the 

Sandia Peak Tram Company, Bernalillo County and the 

City of Albuquerque. All the parties worked hard in a good 

faith effort to resolve this manner, and we commend those 

efforts. Ultimately, a Settlement Agreement was reached 

in April 2000, but only among the Pueblo, the Sandia Peak 

Tram Company and the Federal Government. The City, 

the County, and the coalition had withdrawn from the negotiations. 

With some modifications, S. 2018 essentially implements 

the 2000 Settlement Agreement. I will concentrate my remarks primarily in those areas where S. 2018 goes beyond 

the Settlement Agreement, where the provisions of the bill 

are unclear to us, or where S. 2018 can improve on the efforts made to date to resolve this dispute. 

We see at least three areas in which the bill goes beyond 

the settlement based on our review to date. First, there is 

a provision for a mandated land exchange within a certain 

time. The Settlement Agreement does not include such a 

provision and we do not think one is appropriate as existing land exchange mechanisms are available. Second, the 

bill adds management rights for Sandoval and Bernalillo 

Counties. We do not disagree with this. The Department 

of Agriculture strongly supports involving tribal, state, and 

local governments in land management decisions that affect them. However, we think the change does require an 

expansion of both the Settlement Agreement and the Management Plan. 

In addition, the bill requires the Department to do a survey of the boundary area within 12 months. This new responsibility creates significant issues for the Department 

on which we would like to work with the Committee. 

Our second comments is that it would be very helpful to 

have the legislative language expressly incorporate the 

Settlement Agreement and Management Plan rather than 

by reference. Although the United States generally supports incorporation of such settlements by reference, such 

incorporation creates the potential for conflict in this case 

where the language of the bill and the Settlement Agreement and Management Plan conflict. For example, the bill 

provides that the area will be managed under laws and 

regulations applicable to the National Forest System. 

These include the National Forest Management Act. The 

Settlement Agreement, however, specifically exempts the 

T’uf Shur Bien Preservation Trust area from the National 

Forest Management Act. This area will not be subject to 

NFMA, but rather to the procedural and substantive requirements established in the Settlement Agreement and 

24

Management Plan. The legislation needs to set forth these 

provisions very clearly, particularly given the potential for 

confusing, overlapping and sometimes conflicting management. The parties have all expressed their interest in limiting future litigation. We think the likelihood of this can 

be enhanced by resolving potential ambiguities in the legislation itself.

Finally, we believe the language in section 10(c) of the 

bill, clarifying that this Act is uniquely suited to resolve 

the Pueblo’s claim, is a crucial element of any legislative 

resolution. This agreement, however, should not be considered precedent for any other situation involving National 

Forest System lands. 

Although this bill, if enacted, will resolve this particular 

dispute, it is important to emphasize that all settlements 

of Indian claims, including settlements that involve federal 

lands, must be ratified by Congress [pursuant to 25 U.S.C. 

177]. Should Congress decide to delegate settlement authority regarding such claims to administration officials, 

however, the land management agency with jurisdiction 

over the land should have primary authority in determining whether the agency’s lands would be conveyed as 

part of the settlement. We believe that with respect to National Forest System lands, responsibility should reside in 

the Department of Agriculture. 

The Department of Agriculture would like to work with 

the Committee to finally resolve this matter. We would 

like to find a resolution that addresses the identified concerns, maintains the character and beauty of the Sandia 

Mountain Wilderness, and protects and preserves the cultural and religious values of the area. 

This concludes my statement. I would be happy to answer any questions.

CHANGES IN EXISTING LAW

In compliance with paragraph 12 of rule XXVI of the Standing 

Rules of the Senate, changes in existing law made by the bill S. 

2018, as ordered reported, are shown as follows (existing law proposed to be omitted is enclosed in black brackets, new matter is 

printed in italic, existing law in which no change is proposed is 

shown in roman); 

FEDERAL LAND POLICY AND MANAGEMENT ACT 

Public Law 94–579

* * * * * * *

CORRECTION OF CONVEYANCE DOCUMENTS

SEC. 316. The Secretary may correct patents or documents of 

conveyance issued pursuant to section 208 of this Act or to other 

Acts relating to the disposal of public lands where necessary in 

order to eliminate errors. In addition, the Secretary may make corrections of errors in any documents of conveyance which have heretofore been issued by the Federal Government to dispose of public 

25

lands. Any corrections authorized by this section which affect the 

boundaries of, or jurisdiction over, lands administered by another 

Federal agency shall be made only after consultation with, and the 

approval of, the head of such other agency. 

* * * * * * *

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