99–010

107TH CONGRESS REPORT " SENATE ! 2d Session 107–285

T’UF SHUR BIEN PRESERVATION TRUST AREA ACT

SEPTEMBER 17, 2002.—Ordered to be printed 

Mr. BINGAMAN, from the Committee on Energy and Natural 

Resources, submitted the following 

R E P O R T 

[To accompany S. 2018] 

[Including cost estimate of the Congressional Budget Office]

The Committee on Energy and Natural Resources, 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 and recommends 

that the bill, as amended, do pass. 

The amendment is as follows: 

Strike out all after the enacting clause in insert in lieu thereof 

the following:

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘T’uf Shur Bien Preservation Trust Area Act’. 

SEC.2. FINDING AND STATEMENT OF PURPOSE. 

(a) FINDING.—The Congress finds that in 1748, the pueblo of Sandia received a 

grant from a representative of the King of Spain, which grant was recognized and 

confirmed by Congress in 1858 (11 Stat. 374). In 1994, the Pueblo filed a lawsuit 

against the Secretary of the Interior and the Secretary of Agriculture in the U.S. 

District Court for the District of Columbia, Civil No. 1:94CV02624, asserting that 

federal surveys of the grant boundaries erroneously excluded certain lands within 

the Cibola national Forest, including a portion of the Sandia Mountain Wilderness; 

(b) PURPOSES.—The purposes of this Act 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 Area 

while resolving issues associated with the Pueblo’s lawsuit and the opinions of 

the Solicitor of the Department of the Interior dated December 9, 1988 (M–

36963; 96 I.D. 331) and January 19, 2001 (M–37002); and 

(3) provide the Pueblo, parties involved in the litigation, and the public with 

a fair and just settlement of the Pueblo’s claim. 

SEC. 3 DEFINITIONS. 

For purposes of this Act: 

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(1) AREA.—The term ‘‘Area’’ means the T’uf Shur Bien Preservation Trust 

Area as depicted on the map, and excludes the subdivisions and other privately 

and publicly owned lands as set forth in this Act. 

(2) CREST FACILITIES.—The term ‘‘crest facilities’’ means all facilities and developments located on the crest of Sandia Mountain, including the Sandia crest 

Electronic Site; electronic site access roads; the crest House; the upper terminal, 

restaurant, and related facilities of Sandia Peak Tram Company; the Crest Observation Area; parking lots; restrooms; the Crest Trail (Trail No. 130); hang 

glider launch sites; and the Kiwanis cabin; as well as the lands upon which 

such facilities are located and the lands extending 100 feet to the west of each 

such facility, unless a different distance is agreed to in writing between the Forest Service and the Pueblo and documented in the survey of the Area. 

(3) EXISTING USES AND ACTIVITIES.—The term ‘‘existing uses and activities’’

means uses and activities occurring in the Area on the date of enactment of this 

Act, or which have been authorized in the Area after November 1, 1995 but before the date of enactment of this Act. 

(4) FOREST SERVICE.—The term ‘‘Forest Service’’ means the U.S. Forest Service. 

(5) LA LUZ TRACT.—The term ‘‘La Luz tract’’ means that tract comprised of 

approximately 31 acres of land owned in fee by the Pueblo and depicted on the 

map. 

(6) LOCAL PUBLIC BODIES.—The term ‘‘local public bodies’’ means political subdivisions of the State of New Mexico as defined in New Mexico Code § 6–5–1. 

(7) MAP.—The term ‘‘map’’ means the Forest Service map entitled ‘‘T’uf Shur 

Bien Preservation Trust Area,’’ dated April 2000.

(8) MODIFIED USES OR ACTIVITIES.—The term ‘‘modified uses or activities’’

means existing uses which are being modified or re-configured, but which are 

not being significantly expanded, including a trail or trailhead being modified, 

such as to accommodate handicapped access, a parking area being reconfigured 

though not expanded, or a special use authorization for a group recreation activity being authorized for a different use area or time period. 

(9) NEW USES OR ACTIVITIES.—The term ‘‘new uses or activities’’ means uses 

or activities not occurring in the Area on the date of enactment of this Act, as 

well as existing uses or activities that are being modified such that they significantly expand or alter their previous scope, dimensions, or impacts on the land, 

water, air and/or wildlife resources of the Area. New uses and activities do not 

apply to new uses or activities that are categorically excluded from documentation requirements pursuant to the National Environmental Policy Act of 1969 

(42 U.S.C. 4321 et seq.), or to activities undertaken to comply with the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). 

(10) PIEDRA LISA TRACT.—the term ‘‘Piedra Lisa tract’’ means that tract comprised of approximately 160 acres of land held in private ownership and depicted on the map. 

(11) PUEBLO.—The term ‘‘Pueblo’’ means the Pueblo of Sandia in its governmental capacity. 

(12) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of Agriculture, 

except where otherwise expressly indicated. 

(13) SETTLEMENT AGREEMENT.—The term ‘‘Settlement Agreement’’ means the 

Agreement of Compromise and Settlement dated April 4, 2000, between the 

United States, the Pueblo, and the Sandia Peak Tram Company. 

(14) SPECIAL USE PERMIT.—The term ‘‘special use permit’’ means the December 1, 1993, Special Use Permit issued by the Forest Service to Sandia Peak 

Tram Company and Sandia Peak Ski Company, encompassing approximately 46 

acres of the corridor presently dedicated to aerial tramway use, and approximately 945 acres of the ski area, as well as the lands described generally in 

Exhibit A to the December 31, 1993, Special Use Permit, including the maintenance road to the lower tram tower, water storage and distribution facilities, 

seven helispots, and the other lands described therein. 

(15) SUBDIVISIONS.—The term ‘‘subdivisions’’ means the subdivisions of 

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

Monte, and Evergreen Hills, as well as any additional plats and privately owned 

properties depicted on the map, exclusive of the property now owned or hereafter acquired by the Pueblo or the Forest Service in the subdivisions. 

(16) TRADITIONAL AND CULTURAL USES.—The terms ‘‘traditional and cultural 

uses’’ and ‘‘traditional and cultural purposes’’ means ceremonial activities, including the placing of ceremonial materials in the Area, and the use, hunting, 

trapping or gathering of plants, animals, wood, water, and other natural resources, but only for non-commercial purposes. 

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SEC. 4. T’UF SHUR BIEN PRESERVATION TRUST AREA. 

(a) ESTABLISHMENT.—The T’uf Shur Bien Preservation Trust Area is established 

within the Cibola National Forest and the Sandia Mountain Wilderness as depicted 

on the map: 

(1) to recognize and protect in perpetuity the Pueblo’s rights and interests in 

and to the Area, as specified in section 5(a) of this Act; 

(2) to preserve in perpetuity the Wilderness and National Forest character of 

the Area; and

(3) to recognize and protect in perpetuity the public’s longstanding use and 

enjoyment of the Area. 

(b) ADMINISTRATION AND APPLICABLE LAW.—The Secretary, acting through the 

Forest Service, shall continue to administer the Area as part of the National Forest 

System and incorporate the provisions of this Act affecting management of the Area, 

including section 5(a)(3) and section 7. 

(c) EXCEPTIONS.—

(1) Traditional and cultural uses by Pueblo members and members of other 

federally recognized Indian tribes authorized to use the Area by the Pueblo 

under section 5(a)(4) of this act shall not be restricted except by the Wilderness 

Act and its regulations as they exist on the date of enactment of this Act and 

by applicable federal wildlife protection laws as provided in section 6(a)(2) of 

this Act. 

(2) To the extent that laws enacted or amended after the date of this act are 

inconsistent with this act, they shall not apply to the Area unless expressly 

made applicable by Congress. 

(3) The use of the word ‘‘Trust’’ in the name of the Area is in recognition of 

the Pueblo’s specific rights and interests in the Area, and does not confer upon 

the Pueblo the ownership interest that exists when the Secretary of the Interior 

accepts the title to land in trust for the benefit of an Indian tribe. 

(d) AREA DEFINED.—

(1) The Area shall be comprised of approximately 9890 acres of land within 

the Cibola National Forest as depicted on the map. 

(2) As soon as practicable after enactment of this Act, the Secretary shall file 

the map and a legal description of the Area with the Committee on Resources 

of the House of Representatives and with the Committee on Energy and natural 

Resources of the Senate. The map and legal description shall be on file and 

available for public inspection in the Office of the Chief of the Forest Service, 

Department of Agriculture, Washington, District of Columbia. 

(3) Such map and legal description shall have the same force and effect as 

if included in this Act, except that 

(A) clerical and typographical errors shall be corrected; 

(B) changes that may be necessary pursuant to section 9(b), 9(d), and 9(e) 

shall be made; and 

(C) to the extent the map and the language of this Act conflict, the language of the Act controls. 

(e) NO CONVEYANCE OF TITLE.—The United States’ right, title and interest in or 

to the Area or any part thereof shall not be conveyed to or exchanged with any person, trust, or governmental entity, including the Pueblo, without specific authorization of Congress. 

(f) PROHIBITED USES.—Notwithstanding any other provision of law, no use prohibited by the Wilderness Act as of the date of enactment of this Act may occur in the 

Washington portion of the Area; nor may any of the following uses occur in any portion of the Area: gaming or gambling of any kind, mineral production, timber production, and new uses or activities to which the Pueblo objects pursuant to section 

5(a)(3) of this Act. The Area is closed to the location of mining claims under the 

Mining Law of 1872 (30 U.S.C. § 22).

(g) NO MODIFICATION OF BOUNDARIES.—Nothing herein shall affect the boundaries 

of, or shall repeal or disestablish the Sandia Mountain Wilderness or the Cibola National Forest. Establishment of the Area does not in any way modify the existing 

boundary of the Pueblo grant. 

SEC. 5. PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA. 

(a) GENERAL.—The Pueblo shall have the following rights and interests in the 

Area: 

(1) free and unrestricted access to the Area for traditional and cultural uses 

to the extent not inconsistent with the Wilderness Act and its regulations as 

they exist on the date of enactment of the Act and with applicable federal wildlife protection laws as provided in section 6(a)(2); 

(2) perpetual preservation of the Wilderness and National Forest character of 

the Area under this Act; 

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(3) rights in the management of the Area as set forth in section 7, which include: 

(A) the right to consent or withhold consent to new uses; 

(B) the right to consultation regarding modified uses; 

(C) the right to consultation regarding the management and preservation 

of the Area; and 

(D) the right to dispute resolution procedures; 

(4) exclusive authority, in accordance with its customs and laws, to administer access to the Area for traditional and cultural uses by members of the 

Pueblo and of other federally recognized Indian tribes; and 

(5) such other rights and interests as are enumerated and recognized in sections 4, 5(c), 8, and 9. 

(b) LIMITATION.—Except as provided in subsection (a)(4), access to and use of the 

Area for all other purposes shall continue to be administered by the Secretary 

through the Forest Service. 

(c) COMPENSABLE INTEREST.— (1) If, by an Act of Congress enacted subsequent to the effective date of this 

Act, Congressional diminishes the Wilderness and National Forest designation 

of the Area by authorizing a use prohibited by section 4(f) in all or any portion 

of the Area, or permanently denies the Pueblo access for any traditional and 

cultural uses in all or any portion of the Area, the United States shall compensate the Pueblo as if the Pueblo had held a fee title interest in the affected 

portion of the Area and as though the United States had acquired such interest 

by legislative exercise of its power of eminent domain, and the restrictions of 

sections 4(f) and 6(a) shall be disregarded in determining just compensation 

owed to the Pueblo. 

(2) Any compensation made to the Pueblo pursuant to subsection (c)(1) does 

not in any way affect the extinguishment of claims set forth in section 10. 

SEC. 6. LIMITATIONS ON PUEBLO OF SANDIA RIGHTS AND INTERESTS IN THE AREA. 

(a) LIMITATIONS.—The Pueblo’s rights and interests recognized in this Act do not 

include: 

(1) any right to sell, grant, lease, convey, encumber or exchange lands in the 

Area, or any right or interest therein, and any such conveyance shall not have 

validity in law or equity; 

(2) any exemption from applicable federal wildlife protection laws;

(3) any right to engage in any activity or use prohibited in section 4(f); or 

(4) any right to exclude persons or governmental entities from the Area. 

(b) EXCEPTION.—No person who exercises traditional and cultural use rights as 

authorized in section 5(a)(4) of this Act may be prosecuted for a Federal wildlife offense requiring proof of a violation of a State law or regulation. 

SEC. 7. MANAGEMENT OF THE AREA. 

(a) PROCESS.—

(1) GENERAL.—

(A) The Forest Service shall consult with the Pueblo of Sandia not less 

than twice a year, unless otherwise mutually agreed, concerning protection, 

preservation, and management of the Area, including new and modified 

uses and activities in the Area and authorizations that are anticipated during the next six months and approved in the preceding six months. 

(2) NEW USES AND ACTIVITIES.—

(A) If after consultation the Pueblo of Sandia denies its consent for a new 

use or activity within 30 days of the consultation, the Forest Service will 

not be authorized to proceed with the activity or use. If the Pueblo consents 

to the new use or activity in writing or fails to respond within 30 days, the 

Forest Service may proceed with the notice and comment process and the 

environmental analysis. 

(B) Before the Forest Service signs a Record of Decision (ROD) or Decision Notice (DN) for a proposed use of activity, the Forest Service will again 

request Pueblo consent within 30 days of the Pueblo’s receipt of the proposed ROD or DN. If the Pueblo refuses to consent, the activity or use will 

not be authorized. If the Pueblo fails to respond to the consent request 

within 30 days after the proposed ROD or DN is provided to the Pueblo, 

the Pueblo will be deemed to have consented to the proposed ROD or DN 

and the Forest Service may proceed to issue the final ROD or DN. 

(3) PUBLIC INVOLVEMENT.—

(A) For proposed new and modified uses and activities, the public shall 

be provided notice of—

(i) the purpose and need for the proposed action or activity, 

(ii) the Pueblo’s role in the decision-making process, and 

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(iii) the Pueblo’s position on the proposal. 

Any member of the public may file an action in the United States District 

Court for the District of New Mexico to challenge Forest Service determinations of what constitutes a new or a modified use or activity. 

(b) EMERGENCIES AND EMERGENCY CLOSURE ORDERS.—The Forest Service shall 

retain its existing authorities to manage emergency situations, to provide for public 

safety, and to issue emergency closure orders in the Area subject to applicable law. 

The Forest Service shall notify the Pueblo of Sandia regarding emergencies, public 

safety issues, and emergency closure orders as soon as possible. Such actions are 

not subject to the Pueblo’s right to withhold consent to new uses in the Area as set 

forth in section 5(a)(3)(i). 

(c) DISPUTES INVOLVING FOREST SERVICE MANAGEMENT AND PUEBLO TRADITIONAL

USES.—

(1) GENERAL.—In the event that Forest Service management of the Area and 

Pueblo traditional and cultural uses conflict, and the conflict does not pertain 

to new or modified uses subject to the process set forth in subsection (a), the 

process for dispute resolution set forth in this subsection shall take effect. 

(2) DISPUTE RESOLUTION PROCESS.—(A) When there is a dispute between the 

Pueblo and the Forest Service regarding Pueblo traditional and cultural use and 

Forest Service management of the Area, the party identifying the dispute shall 

notify the other party in writing addressed to the Governor of the Pueblo or the 

Regional Forester respectively, setting forth the nature of the dispute. The Regional Forester or designee and the Governor of the Pueblo or designee shall 

attempt to resolve the dispute for no less than 30 days after notice has been 

provided before filing an action in United States District Court for the District 

of New Mexico. 

(B) DISPUTES REQUIRING IMMEDIATE RESOLUTION.—In the event of a conflict 

that requires immediate resolution to avoid imminent, substantial and irreparable harm, the party alleging such conflict shall notify the other party and 

seek to resolve the dispute within 3 days of the date of notification. If the parties are unable to resolve the dispute within 3 days, either party may file an 

action for immediate relief in federal court in New Mexico, and the procedural 

exhaustion requirements set forth above shall not apply. 

SEC. 8. JURISDICTION OVER THE AREA. 

(a) CRIMINAL JURISDICTION.—Notwithstanding any other provision of law, jurisdiction over crimes committed in the Area shall be allocated as follows: 

(1) To the extent that the allocations of criminal jurisdiction over the Area 

under paragraphs (2), (3), and (4) of this subsection are overlapping, they 

should be construed to allow for the exercise of concurrent criminal jurisdiction. 

(2) The Pueblo shall have jurisdiction over crimes committed by its members 

or by members of another federally recognized Indian tribe who are present in 

the Area with the Pueblo’s permission pursuant to section 5(a)(4). 

(3) The United States shall have jurisdiction over—

(A) the offenses listed in section 1153 of title 18, U.S. Code, including any 

offenses added to the list in that statute by further amendments thereto, 

when such offenses are committed by members of the Pueblo and other federally recognized Indian tribes; 

(B) crimes committed by any person in violation of laws and regulations 

pertaining to the protection and management of National Forests; 

(C) enforcement of federal criminal laws by general applicability; and 

(D) any other offense committed by a member of the Pueblo against a 

non-member of the Pueblo. Any offense which is not defined and punished 

by federal law in force within the exclusive jurisdiction of the United States 

shall be defined and punished in accordance with the laws of the State of 

New Mexico. 

(4) The State of New Mexico shall have jurisdiction over any crime under its 

laws committed by a person not a member of the Pueblo. 

(b) CIVIL JURISDICTION.—

(1) Except as provided in paragraphs (2), (3), (4), and (5), the United States, 

the State of New Mexico, and local public bodies shall have the same civil adjudicatory, regulatory, and taxing jurisdiction over the Area as they exercised 

prior to the enactment of this Act. 

(2) The Pueblo shall have exclusive civil adjudicatory jurisdiction over—

(A) disputes involving only members of the Pueblo; 

(B) civil actions brought by the Pueblo against members of the Pueblo; 

and 

(C) civil actions brought by the Pueblo against members of other federally 

recognized Indian tribes for violations of understandings between the PuebVerDate Sep 04 2002 03:09 Sep 22, 2002 Jkt 099010 PO 00000 Frm 00005 Fmt 6659 Sfmt 6621 E:\HR\OC\SR285.107 SR285
6

lo and that member’s tribe regarding use or access to the Area for traditional and cultural purposes. 

(3) The Pueblo shall have no regulatory jurisdiction over the Area with the 

exception of; 

(A) exclusive authority to regulate traditional and cultural uses by the 

Pueblo’s own members and to administer access to the Area by other federally recognized Indian tribes for traditional and cultural uses, to the extent 

such regulation is consistent with this Act; and 

(B) The Pueblo shall have exclusive authority to regulate hunting and 

trapping in the Area by its members that is related to traditional and cultural purposes. Such authority shall not vest or continue until the Pueblo 

enacts and thereafter maintains and enforces regulations substantially 

similar to those of the State of New Mexico concerning seasons, game management, types of weapons, proximity of hunting and trapping to trails and 

residences, and comparable safety restrictions. Prior to adopting such regulations, the Pueblo shall provide the Forest Service and New Mexico game 

and Fish Department with notice and an opportunity to comment on the 

regulations. The Pueblo shall consult and exchange information with the 

New Mexico Game and Fish Department on a periodic basis to assist the 

Department with its ongoing responsibility to protect wildlife populations. 

(4) The Pueblo shall have no authority to impose taxes within the Area. 

(5) The State of New Mexico and local public bodies shall have no authority 

within the Area to tax the activities or the property of the Pueblo, its members, 

or members of other federally recognized Indian tribes authorized to use the 

Area under section 5(a)(4) of this Act. 

SEC. 9. SUBDIVISIONS AND OTHER PROPERTY INTERESTS. 

(a) SUBDIVISIONS.—The subdivisions are excluded from the Area. The Pueblo shall 

have no civil or criminal jurisdiction for any purpose, including adjudicatory, taxing, 

zoning, regulatory or any other form of jurisdiction, over the subdivisions and property interests therein, and the laws of the Pueblo shall not apply to the subdivisions. 

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 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. 

(b) PIEDRA LISA.—The Piedra Lisa tract is excluded from the Area notwithstanding any subsequent acquisition of the tract by the Pueblo. If the Forest Service 

acquires the tract, it shall be included in the Area. Unless the Piedra Lisa tract is 

acquired by the Pueblo, the Pueblo shall have no civil or criminal jurisdiction over 

the tract and property interests therein, and the laws of the Pueblo shall not apply 

to the tract. Except as provided in subsection (e), the jurisdiction of the State of New 

Mexico and local bodies over the Piedra Lisa tract and property interests therein 

shall continue in effect. If the Forest Service acquires the tract, the jurisdictional 

provisions of section 8 of the Act shall apply. 

(c) CREST FACILITIES.—The lands on which the crest facilities are located are excluded from the Area. The Pueblo shall have no civil or criminal jurisdiction for any 

purpose, including adjudicatory, taxing, zoning, regulatory or any other from of jurisdiction, over the lands on which the crest facilities are located and property interests therein, and the laws of the Pueblo shall not apply to those lands. The preexisting jurisdictional status of those lands shall continue in effect. 

(d) SPECIAL USE PERMIT AREA.—The lands described in the special use permit are 

excluded from the Area. The Pueblo shall have no civil or criminal jurisdiction for 

any purpose, including adjudicatory, taxing, zoning, regulatory, or any other form 

of jurisdiction, over the lands described in the special use permit, and the laws of 

the Pueblo shall not apply to those lands. The pre-existing jurisdictional status of 

these lands shall continue in effect. 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 shall have the same status under 

this Act as the lands currently described in the special use permit. 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 shall thereafter be included in the Area but only after final agency action no 

longer subject to any appeals. 

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(e) LA LUZ TRACT AND SUBSEQUENT ACQUISITION.—The La Luz tract now owned 

in fee by the Pueblo is excluded from the Area and 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. if the Pueblo acquires the Piedra Lisa tract, 

the tract 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. The restriction contained in section 6(a)(4) shall not apply outside of Forest 

Service System trails. 

(f) EVERGREEN HILLS ACCESS.—The Secretary, consistent with section 1323(a) of 

the Alaska National Interest Lands Conservation Act (16 U.S.C. 3210), shall ensure 

that Forest Service Road 333D, as depicted on the map, is maintained in an adequate condition consistent with the terms of section 1323(a) of the Alaska National 

Interest Lands Conservation Act (26 U.S.C. 3210). 

(g) PUEBLO FEE LANDS.—Those properties not specifically addressed in subsection 

(a) or (e) of this section that are owned in fee by the Pueblo within the subdivisions 

are excluded from the Area and shall be subject to the jurisdictional provisions of 

subsection (a) of this section. 

(h) RIGHTS-OF-WAY.—

(1) ROAD RIGHTS-OF-WAY.—(A) in accordance with the Pueblo having given its 

consent in the Settlement Agreement, the Secretary of the Interior shall grant 

to the County of Bernalillo, New Mexico, in perpetuity, the following irrevocable 

rights of way for roads identified on the map in order to provide for public access to the subdivisions, the special use permit land and facilities, the other 

leasehold and easement rights and interests of the Sandia Peak Tram Company 

and its affiliates, the Sasndia Heights South Subdivision, and the Area: 

(i) a right-of-way for Tramway Road; 

(ii) a right-of-way for Juniper Hill Road North; 

(iii) a right-of-way for Juniper Hill Road South; 

(iv) a right-of-way for Sandia Heights Road; and 

(v) a right-of-way for Juan Tabo Canyon Road (Forest Road No. 333). 

(B) The road rights-of-way shall be subject to the following conditions: 

(i) Such rights-of-way may not be expanded or otherwise modified 

without the Pueblo’s written consent, but road maintenance to the 

rights of way shall not be subject to Pueblo consent; 

(ii) The rights-of-way shall not authorize uses for any purpose other 

than roads without the Pueblo’s written consent. 

(iii) Existing rights-of-way or leasehold interests held by the Sandia 

Peak Tram Company and its affilates, shall be preserved and protected. 

(2) UTILITY RIGHTS-OF-WAY.—In accordance with the Pueblo having given its 

consent in the Settlement Agreement, the Secretary of the Interior shall grant 

irrevocable utility rights-of-way in perpetuity across lands to appropriate utility 

or other service providers serving Sandia Heights Addition, Sandia Heights 

North Units I, II, and 3, the special use permit lands, and Tierra Monte, including rights-of-way for natural gas, power, water, telecommunications, and cable 

television services. Such rights-of-way shall be within existing utility corridors 

as depicted on the map or, for certain water lines, as described in the existing 

grant of easement to the Sandia Peak Utility Company; provided that use of 

water line easements outside the utility corridors depicted on the map shall not 

be used for utility purposes other than water lines and associated facilities. Except where above-ground facilities already exist, all new utility facilities shall 

be installed underground unless the Pueblo agrees otherwise. To the extent that 

enlargement of existing utility corridors is required for any technologically-advanced telecommunication, television, or utility services, the Pueblo shall not 

unreasonably withhold agreement to a reasonable enlargement of the easements 

described above. 

(i) FOREST SERVICE RIGHTS-OF-WAY.—In accordance with the Pueblo having given 

its consent in the Settlement Agreement, the Secretary of the Interior shall grant 

to the Forest Service the following irrevocable rights-of-way in perpetuity for Forest 

Service trails crossing land of the Pueblo in order to provide for public access to the 

Area and through Pueblo lands: 

(1) a right-of-way for a portion of the Crest Spur Trail (Trail No. 84), crossing 

a portion of the La Luz tract, as identified on the map; 

(2) a right-of-way for the extension of the Foothills Trail (Trail No. 365A), as 

identified on the map; and 

(3) a right-of-way for that portion of the Piedra Lisa North-South Trail (Trail 

No. 135) crossing the Piedra Lisa tract, if the Pueblo ever acquires the Piedra 

Lisa tract. 

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SEC. 10. EXTINGUISHMENT OF CLAIMS.

(a) GENERAL.—Except for the rights and interests in and to the Area specifically 

recognized in sections 4, 5, 8, and 9, all Pueblo claims to right, title and interest 

of any kind, including aboriginal claims, in and to lands within the Area, any part 

thereof, and property interests herein, as well as related boundary, survey, trespass, 

and monetary damage claims, are hereby permitted extinguished. The United 

States’ title to the Area is hereby confirmed. 

(b) SUBDIVISIONS AND PIEDRA LISA.—Any Pueblo claims to right, title and interest 

of any kind, including aboriginal claims, in and to the subdivisions and the Piedra 

Lisa tract and property interests therein, as well as related boundary, survey, trespass, and monetary damage claims, are hereby permanently extinguished. 

(c) SPECIAL USE AND CREST FACILITIES AREAS.—Any Pueblo right, title and interest of any kind, including aboriginal claims, and related boundary, survey, trespass, 

and monetary damage claims, are hereby permanently extinguished in and to— (1) the lands described in the special use permit; and 

(2) the lands on which the crest facilities are located. 

(d) PUEBLO AGREEMENT.—As provided in the Settlement Agreement, the Pueblo 

has agreed to the relinquishment and extinguishment of those claims, rights, titles 

and interests extinguished pursuant to subsection (a), (b) and (c) of this section. 

(e) CONSIDERATION.—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, and it is the intent of Congress that those rights and interests may 

only be diminished by a future Act of Congress specifically authorizing diminishment of such rights, with express reference to this Act. 

SEC. 11. CONSTRUCTION. 

(a) STRICT CONSTRUCTION.—This Act recognizes only enumerated rights and interests, and no additional rights, interests, obligations, or duties shall be created by 

implication. 

(b) EXISTING RIGHTS.—To the extent there exists within the Area at the time of 

enactment of this Act any valid private property rights associated with the Piedra 

Lisa tract or other private lands that are not otherwise addressed in this Act, such 

rights are not modified or otherwise affected by this Act, nor is the exercise of any 

such right subject to the Pueblo’s right to the withhold consent to new uses in the 

Area as set forth in section 5(a)(3)(i). 

(c) NOT PRECEDENT.—The provisions of this Act creating certain rights and interests in the National Forest System are uniquely suited to resolve the Pueblo’s claim 

and the geographic and societal situation involved, and shall not be construed as 

precedent for any other situation involving management of the National Forest System. 

(d) FISH AND WILDLIFE.—Except as provided in section 8(b)(3)(B), nothing in this 

Act shall 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 within the Area. 

(e) FEDERAL LAND POLICY AND MANAGEMENT ACT.—Section 316 (43 U.S.C. 1746) 

of the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701 et seq.) 

is amended by adding the following sentence at the end thereof: ‘‘Any corrections 

authorized by this section which affect 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.’’

SEC. 12. JUDICIAL REVIEW.

(a) ENFORCEMENT.—Suit to enforce the provisions of this Act may be brought to 

the extent permitted under chapter 7 of title 5, United states Code. Judicial review 

shall be based upon the administrative record and subject to the applicable standard 

to review set forth in section 706 of title 5, United States Code. 

(b) WAIVER.—Suit may be brought against the Pueblo for declaratory judgment or 

injunctive relief under this Act, but no money damages, including costs or attorney’s fees, may be imposed on the Pueblo as a result of such judicial action. 

(c) VENUE.—Venue for any suit provided for in this section, as well as any suit 

to contest the constitutionality of this Act, shall lie only in the United States District Court for the District of New Mexico. 

SEC. 13. EFFECTIVE DATE. 

The provisions of this Act shall take effect immediately upon enactment of this 

Act. 

SEC. 14. AUTHORIZATION OF APPROPRIATIONS AND RELATED AUTHORITIES.—

(a) GENERAL.—There are hereby authorized to be appropriated such sums as may 

be necessary to carry out this Act, including such sums as may be necessary for the 

9

Forest Service to acquire ownership of lands within the external boundaries of the 

Area as authorized in subsection (d) 

(b) CONTRIBUTIONS.—

(1) The Secretary is authorized to accept contributions from the Pueblo, or 

from other persons or governmental entities, to perform and complete a survey 

of the Area, or otherwise for the benefit of the Area in accordance with this Act. 

(2) The Secretary shall complete a survey of the Area within one year of the 

date of enactment of this Act. 

(c) LAND EXCHANGE.—In the event the Secretary purchases or otherwise acquires 

ownership of the Piedra Lisa tract, the Forest Service is authorized to transfer ownership of the Piedra Lisa tract to the Pueblo in exchange for lands of equal value 

owned by the Pueblo in fee within the subdivided portion of the Evergreen Hills 

subdivision or other land acceptable to the Secretary. Notwithstanding section 

206(b) of the Federal Land Policy and Management Act (43 U.S.C. 1716(b)), the Secretary may 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. 

Any such exchange or conveyance shall be executed in compliance with all applicable laws except that the Secretary shall retain, without further appropriation, any 

cash equalization payment received from the Pueblo for the acquisition of land to 

be added to the Cibola National Forest. 

(d) LAND ACQUISITION.—The Secretary is authorized to acquire lands owned by 

the Pueblo within the Evergreen Hills Subdivision in Sandoval County or any other 

privately held lands inside of the exterior boundaries of the Area. The boundaries 

of the Cibola National Forest and the Area shall be adjusted to encompass any 

lands acquired pursuant to this section. 

(e) REIMBURSEMENT OF CERTAIN COSTS.—

(1) The Pueblo, the County of Bernalillo, New Mexico, and any person who 

owns or has owned property inside of the exterior boundaries of the Area as 

designated on the map, and who has incurred actual and direct costs as a result 

of participating in the case of Pueblo of Sandia v. Babbitt, Civ. No. 94–2624 

HHG (D.D.C.), or other proceedings directly related to resolving the issues litigated in that case, may apply for reimbursement in accordance with this section. Costs directly related to such participation which shall qualify for reimbursement shall be—

(A) dues or payments to a homeowner association for the purpose of legal 

representation; and 

(B) legal fees and related expenses. 

(2) The reimbursement provided in this subsection shall be in lieu of that 

which might otherwise be available pursuant to the Equal Access to Justice Act 

(24 U.S.C. 2412). 

(3) The Secretary of the Treasury is authorized and directed to make reimbursement payments as provided in this section out of any money not otherwise 

appropriated. 

(4) Applications for reimbursement shall be filed within 180 days of the date 

of enactment of this Act with the Department of the Treasury, Financial Management Service, Washington, D.C. 

(5) In no event shall any one party be compensated in excess of $750,000 and 

the total amount reimbursed pursuant to this section shall not exceed 

$3,000,000.

PURPOSE OF THE MEASURE

The purposes of S. 2018, as ordered reported, 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 its interpretation of a 1748 land grant to the Pueblo from a repVerDate Sep 04 2002 03:09 Sep 22, 2002 Jkt 099010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR285.107 SR285
10

resentative 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 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 

(creating an additional area of approximately 10,000 acres of land). 

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 Federal district court and in 

1998 the court issued an order that found the Department’s actions 

arbitrary and capricious, vacated the 1988 opinion, and remanded 

the case to the Department for agency action consistent with the 

court’s opinion. Pueblo of Sandia v. Babbit, 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, 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 opinion. Upon dismissal, the Department proceeded with its reconsideration in accordance with the 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 it 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. 

S. 2018, while not identical to the Settlement Agreement, incorporates it necessary provisions. These provisions include several 

that specifically benefit the Pueblo of Sandia: (1) The creation of 

the T’uf Shur Bien Preservation Trust Area (‘‘Area’’) with restricVerDate Sep 04 2002 03:09 Sep 22, 2002 Jkt 099010 PO 00000 Frm 00010 Fmt 6659 Sfmt 6602 E:\HR\OC\SR285.107 SR285
11

tions 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 management 

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 and are preferable to further litigation. 

LEGISLATIVE HISTORY

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

The Full Committee held a joint hearing with the Indian Affairs 

Committee 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. 

COMMITTEE RECOMMENDATION

The Committee on Energy and Natural Resources, in open business session on July 31, 2002, by a voice vote of a quorum present, 

recommends that the Senate pass S. 2018, if amended as described 

herein.

COMMITTEE AMENDMENTS

During the consideration of S. 2018, the Committee adopted an 

amendment in the nature of a substitute. The substitute contains 

a number of changes that address concerns raised during the joint 

hearing by parties whose interests are affected by the settlement 

of the Pueblo’s land claim. 

A major change in the substitute amendment is the elimination 

of a provision that expressly ratifies and confirms the settlement 

agreement and management plan negotiated between the Pueblo, 

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 

12

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, 

hand 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 shall 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 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 but adds a subsection authorizing the transfer of the Piedra Lisa tract to the 

Pueblo should the Forest Service every acquire it from the existing 

owner. 

Other significant changes 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, a 

subsection has been added that directs the Secretary of the Treasury to reimburse the parties and 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 Federal Government. There are 

other clarifying changes added in the substitute amendment, which 

is explained in detail in the section by section analysis, below. 

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 three purposes for the Act. 

Section 3 defines terms used in the Act. 

13

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. 

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. 

Subsection (c) provides exceptions and clarifications to the Forest 

Service’s administration of the Area and are self-explanatory. 

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

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 nothing in this Act affects the boundaries of, or repeals, 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 and are self-explanatory. 

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 permanently denies the Pueblo access for any 

traditional and cultural uses. 

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. The provisions are self-explanatory.

Section 8, subsection (a) allocates jurisdiction over crimes committed in the Area. 

Subsection (9) allocates civil jurisdiction in the Area. 

14

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 is made for a non-subdivided 35 acre tract of land owned in fee by the Pueblo in the Evergreen Hills subdivision. The Secretary of the Interior is directed 

to take this tract into trust for the Pueblo. No development is allowed, however, as the 35 acre tract is subject to all limitations on 

use pertaining to the Area contained in the Act. 

Subsection (b) excludes the Piedra Lisa inholding (approximately 

160 acres) from the Area unless it is subsequently acquired by the 

Forest Service. 

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

Mountain from the Area and recognizes the pre-existing jurisdictional status of 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. 

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

from the Area. The subsection also directs the Secretary of the Interior to take this trace of land into trust for the Pueblo. There is 

also a clause directing the Secretary to take the Piedra Lisa tract 

into trust for the Pueblo in the event it acquires that land. All land 

taken into tract pursuant to the subsection is subject to the limitations on use pertaining to the Area contained in the Act. 

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. 

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

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 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, 

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

Subsection (b) permanently extinguishes any Pueblo claims to 

the subdivisions and the Piedra Lisa tract. 

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. 

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

15

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 management of the National Forest System. 

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

in subparagraph 8(b)(3)(B), 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. 

Section (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, subsection (a) authorized the appropriations of such 

sums as may be necessary to carry out this Act, including the acquisition of land. 

Subsection (b) requires the Secretary of Agriculture to complete 

a survey of the Area within one year of the date of enactment of 

this Act and states that the Secretary may accept contributions 

from the Pueblo or other persons to complete a survey of the Area. 

Subsection (c) authorizes the Secretary of Agriculture to convey 

ownership of the Piedra Lisa tract to the Pueblo if the Secretary 

subsequently acquires the property. The conveyance shall take 

place through an exchange of land acceptable to the Secretary, although the Secretary may 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. 

Subsection (d) authorizes the Secretary of Agriculture to acquire 

lands owned by the Pueblo within the Evergreen Hills Subdivision 

16

or any other privately held lands inside of the exterior boundaries 

of the Area. 

Subsection (e) directs the Secretary of the Treasury to reimburse 

the Pueblo, county of Bernalillo, New Mexico, and any person who 

owns or has owned property inside of the exterior boundaries of the 

Area, for actual and direct costs incurred (and not otherwise reimbursed) due to participation in the litigation or settlement of the 

Sandia Pueblo’s claim to Sandia Mountain. The reimbursement is 

limited to a maximum of $750,000 per party and, in total, may not 

exceed $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 the 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 

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 priVerDate Sep 04 2002 03:09 Sep 22, 2002 Jkt 099010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6602 E:\HR\OC\SR285.107 SR285
17

vate 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 estimate 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 subjects 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 parties, 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 govVerDate Sep 04 2002 03:09 Sep 22, 2002 Jkt 099010 PO 00000 Frm 00017 Fmt 6659 Sfmt 6602 E:\HR\OC\SR285.107 SR285
18

ernment. 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 receipts that are subject to pay-as-yougo 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 costs: Megan Carroll; Impact on 

State, Local, and Tribal Governments: Marjorie Miller; Impact on 

the Private Sector: Cecil McPherson. 

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 

19

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 creates 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 legislative 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:

U.S. 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 Departments 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. 

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 

20

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 grant 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 stayed 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 

the Cibola National Forest and continue to be administered by the 

Secretary of Agriculture through 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 

21

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 and 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 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.

22

ATTACHMENT

In addition to our letter, we are providing the following 

detailed comments: 

Section and Comment 

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)(30(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 would 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(g).’’ 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. 

23

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:

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 with 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 

decision remanding the matter to 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 

24

faith effort to resolve this matter, and we commend those 

efforts. Ultimately, a Settlement Agreement was reached 

in April 2000, buy 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 comment 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 

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 

25

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. 

STATEMENT 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. 

26

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 

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. 

27

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 

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 negotiation 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 Benalillo 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: 

28

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 

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. 

• Statutes (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-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. 

29

Jurisdiction 

• The ratifying legislation would provide a scheme for 

the exercise of government 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 

developments 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.

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 

30

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 

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 agency. 

* * * * * * *

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