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[Senate Report 108-229]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 439
108th Congress                                                   Report
                                 SENATE
 2d Session                                                     108-229

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          ALBUQUERQUE BIOLOGICAL PARK TITLE CLARIFICATION ACT

                                _______
                                

                 March 9, 2004.--Ordered to be printed

                                _______
                                

   Mr. Domenici, from the Committee on Energy and Natural Resources, 
                        submitted the following

                              R E P O R T

                         [To accompany S. 213]

    The Committee on Energy and Natural Resources, to which was 
referred the bill (S. 213) to clear title to certain real 
property in New Mexico associated with the Middle Rio Grande 
Project, 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:
    Beginning on page 1, strike line 6 and all that follows 
through page 2, line 24, and insert the following:

``SEC. 2. PURPOSE.

    ``The purpose of this Act is to direct''.

                                PURPOSE

    The purpose of S. 213 is to clear title to certain real 
property in New Mexico associated with the Middle Rio Grande 
Project, and for other purposes.

                          BACKGROUND AND NEED

    The bill directs the Secretary to issue a quitclaim deed 
conveying any right, title, and interest that the United States 
may have in the two properties to the city of Albuquerque for 
no additional consideration. These properties are key to the 
city's plans to develop a Biological Park to serve as an 
environmental education center for its citizens. In pursuit of 
the project, the city, in 1997, purchased two properties from 
the Middle Rio Grande Conservancy District (MRGCD) for 
$3,875,000. At the time, it was thought that the properties 
were only subject to an easement interest held by the U.S. 
Bureau of Reclamation.
    In the year 2000, the city's plan was interrupted when the 
U.S. Bureau of Reclamation claimed it had actually acquired 
ownership of all of MRGCD's property that is associated with 
the Middle Rio Grande Project. Reclamation's assertion called 
into question the validity of the 1997 transaction between the 
city and MRGCD. Both MRGCD and the city dispute the United 
States' claim of ownership. This legislation would resolve the 
title dispute as it applies only to these two parcels of land. 
Reclamation has determined that the two properties are surplus 
to the needs of the Middle Rio Grande project.

                          LEGISLATIVE HISTORY

    S. 213 was introduced on January 23, 2003 by Senators 
Bingaman and Domenici. The Water and Power Subcommittee held a 
hearing on S. 213 on September 23, 2003. S. Hrg. 108-211. At 
the business meeting on February 11, 2004, the Committee on 
Energy and Natural Resources ordered S. 213, with an amendment, 
favorably reported.
    During the 107th Congress, a similar measure, S. 2696, was 
introduced by Senator Bingaman on June 27, 2002. The 
Subcommittee on Water and Power held a hearing on S. 2696 on 
July 31, 2002. S. Hrg. 107-853. S. 2696 was reported by the 
Committee and passed the Senate by unanimous consent on 
November 19, 2003.

            COMMITTEE RECOMMENDATION AND TABULATION OF VOTES

    The Committee on Energy and Natural Resources, in open 
business session on February 11, 2004, by a unanimous vote of a 
quorum present, recommends that the Senate pass S. 213, if 
amended, as described herein.
    The rollcall vote on reporting the measure was 23 yeas, 0 
nays, as follows:
        YEAS                          NAYS
Mr. Domenici
Mr. Nickles
Mr. Craig
Mr. Campbell*
Mr. Thomas
Mr. Alexander
Ms. Murkowski
Mr. Talent
Mr. Burns
Mr. Smith*
Mr. Bunning
Mr. Kyl*
Mr. Bingaman
Mr. Akaka
Mr. Dorgan*
Mr. Graham*
Mr. Wyden*
Mr. Johnson*
Ms. Landrieu*
Mr. Bayh*
Mrs. Feinstein*
Mr. Schumer*
Ms. Cantwell

    * Indicates voted by proxy.

                          COMMITTEE AMENDMENT

    During consideration of S. 213, the Committee adopted an 
amendment striking the findings section from the bill to 
address concerns raised by the Administration during the 
September 23, 2003 Water and Power Subcommittee hearing.

                      SECTION-BY-SECTION ANALYSIS

    Section 1 states the short title.
    Section 2 states the purpose of the bill.
    Section 3 defines key terms used in the Act.
    Section 4 (a) directs the Secretary of the Interior to 
issue a quitclaim deed to the two properties to the City of 
Albuquerque.
    Subsection (b) states that the Secretary should convey 
title as soon as practicable after the date of enactment and in 
accordance with all applicable law.
    Subsection (c) states that the city is not required to pay 
any additional costs to the United States for the value of the 
two properties.
    Section 5 (a) states that nothing in this Act shall be 
construed to affect any right, title, or interest in and to any 
other land associated with the Middle Rio Grande Project.
    Subsection (b) states that nothing in this Act shall be 
construed to affect or otherwise interfere with ongoing 
litigation, specifically No. CV 99-1320 JP/RLP-ACE, entitled 
Rio Grande Silvery Minnow v. John W. Keys, III.

                   COST AND BUDGETARY CONSIDERATIONS

    The following estimate of the costs of this measure has 
been provided by the Congressional Budget Office.

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 24, 2004.
Hon. Pete V. Domenici,
Chairman, Committee on Energy and Natural Resources,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 213, the Albuquerque 
Biological Park Title Clarification Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Julie 
Middleton.
            Sincerely,
                                      Elizabeth M. Robinson
                               (For Douglas Holtz-Eakin, Director).
    Enclosure.

S. 213--Albuquerque Biological Park Title Clarification Act

    CBO estimates that implementing S. 213 would have no 
significant impact on the federal budget. This bill would 
direct the Secretary of the Interior to issue a quitclaim deed 
conveying all right, title, and interest of the federal 
government in two pieces of property in New Mexico, to the city 
of Albuquerque, New Mexico. The properties are known as Tingley 
Beach and San Gabriel Park.
    The federal government currently does not generate any 
income from these two pieces of property, nor does it spend any 
funds to operate or maintain them. Tingley Beach and San 
Gabriel Park are part of a larger reclamation project called 
the Middle Rio Grande Project which is operated primarily by 
the Middle Rio Grande Conservancy District. The federal 
government and the district are currently involved in a lawsuit 
regarding title to all of the lands in the Middle Rio Grande 
Project. S. 213 would settle the title of the two pieces of 
property by conveying them to the city of Albuquerque. The 
government would not receive any compensation from the city for 
these lands.
    Enacting S. 213 would not affect direct spending or 
revenues. This legislation contains no intergovernmental or 
private-sector mandates as defined in the Unfunded Mandates 
Reform Act and would impose no costs on state, local, or tribal 
governments. Enacting this legislation would benefit the city 
of Albuquerque.
    The CBO staff contact for this estimate is Julie Middleton. 
This estimate was approved by Peter H. Fontaine, Deputy 
Assistant Director for Budget Analysis.

                      REGULATORY IMPACT EVALUATION

    In compliance with paragraph 11(b) of rule XXVI of the 
Standing Rules of the Senate, the Committee makes the following 
evaluation of the regulatory impact which would be incurred in 
carrying out S. 213. The bill is not a regulatory measure in 
the sense of imposing Government-established standards or 
significant economic responsibilities on private individuals 
and businesses.
    No personal information would be collected in administering 
the program. Therefore, there would be no impact on personal 
privacy.
    Little, if any, additional paperwork would result from the 
enactment of S. 213, as ordered reported.

                        EXECUTIVE COMMUNICATIONS

    The Committee on Energy and Natural Resources requested 
legislative reports from the Department of the Interior and the 
Office of Management and Budget setting forth Executive agency 
recommendations on S. 213 on February 6, 2003. These reports 
had not been received at the time the report on S. 213 was 
filed. The testimony provided by the Department of the Interior 
at the subcommittee hearing follows:

   Statement of Michael Gabaldon, Director, Policy, Management, and 
 Technical Services, Bureau of Reclamation, U.S. Department of Interior

    My name is Michael Gabaldon, Director, Policy, Management, 
and Technical Services of the Bureau of Reclamation 
(Reclamation). I am pleased to be here today to present the 
views of the Department regarding S. 213, which would clear 
title to real property in New Mexico associated with the Middle 
Rio Grande Project and for other purposes.
    The Department has several concerns with S. 213 as drafted, 
primarily that the dispute over ownership of the San Gabriel 
and Tingley Beach parcel currently implicates a lawsuit pending 
before the United States District Court for the District of New 
Mexico. In addition, the Department has concerns about how the 
transfer of property that would be effected by this legislation 
may affect other property rights in the litigation related to 
this matter.
    The Department is not averse to transferring ownership to 
another entity, but all parties must agree on the venue and all 
applicable federal laws must be met in the process. The 
Department believes the prudent course of action is to allow 
the legal system to render its decision before instituting a 
legislative remedy. Therefore, the Department cannot support S. 
213 at this time.
    With respect to the City of Albuquerque's desires to make 
improvements on this property, Reclamation has provided a 
license to the City which allows the use of those lands as 
proposed in the City's improvement plans. In addition to the 
license, Reclamation has met directly with members of the City 
Planning Department to facilitate the review of the City's 
proposed improvements for Tingley Beach and worked with staff 
to assist them with State Historical Preservation Office 
review.
    The Middle Rio Grande Conservancy district (District) was 
created by the Conservancy Act of 1923 to improve the economy 
of the Middle Valley by lowering the water table and providing 
flood protection and water for irrigation. In the 1940's, the 
District requested that Reclamation take over the operation of 
the District and retire its outstanding bonds. In September 
1951, the District and Reclamation entered into a 50-year 
repayment contract in the amount of $15,708,567. A key 
component of the contract is Article 29, which states:
    ``Title to all works constructed by the United States under 
this contract and to all such works as are conveyed to the 
United States by the provision hereof, shall as provided in 
Article 26, be and continue to be vested in the name of the 
United States until otherwise provided for by Congress, 
notwithstanding the transfer hereafter of any such works to the 
District for operation and maintenance.''
    Therefore, the Department is also concerned with some of 
the findings in Section 2. Contrary to the implication of 
Section 2(a)(3) of the bill, the U.S. did not claim title to 
Tingley Beach and San Gabriel Park for the first time in 2000. 
Rather, until recently, the U.S. and MRGCD had agreed for 
decades that title to all properties necessary for the Middle 
Rio Grande Project had been conveyed to the United States. For 
example, both the United States and MRGCD filed several briefs 
with the U.S. Supreme Court in the 1950's stating unequivocally 
that title had been transferred to the U.S., and in the 1970's 
MRGCD got a nuisance case involving all MRP ditches and canals 
in the Albuquerque Area dismissed on the basis that these 
properties had been conveyed to the United States.
    Furthermore, in 1998 testimony before a committee of the 
New Mexico Legislature, the District acknowledged the need and 
desire to seek reconveyance after its debt was repaid.
    Section 5 of the bill states that ``nothing in this act 
shall be construed to affect or otherwise interfere with any 
position set forth by any party in the lawsuit . . .'' It is 
unclear how the passage of this legislation could not affect 
the lawsuit given that the ownership of Middle Rio Grande 
Project properties is a central question in the quiet title 
claim of the litigation.
    Despite this disagreement, the District has been a good 
partner on this project and has retired its debt to the United 
States. While we are always open to working with all interested 
parties to find acceptable solutions, we believe that it is 
best to wait on the court's decision on the quiet title claims.
    Mr. Chairman, that concludes my remarks and I would be 
happy to respond to any questions the Committee may have.

                        CHANGES IN EXISTING LAW

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, the Committee notes that no 
changes in existing law are made by the bill S. 213, as ordered 
reported.

                                
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