I 116th CONGRESS 1st Session H. R. 3682 IN THE HOUSE OF REPRESENTATIVES July 10, 2019 Mr. Luján introduced the following bill; which was referred to the Committee on Natural Resources A BILL To provide for greater consultation between the Federal Government and the governing bodies of land grant-mercedes and acequias in New Mexico and to provide for a process for recognition of the historic-traditional boundaries of land grant-mercedes, and for other purposes.

1. Short title; table of contents (a) Short title This Act may be cited as the Land Grant and Acequia Traditional Use Recognition and Consultation Act . (b) Table of contents Sec. 1. Short title; table of contents. Sec. 2. Findings. Sec. 3. Definitions. Sec. 4. Notice and comment. Sec. 5. Guidance on permit requirements for qualified land grant-mercedes. Sec. 6. Special use permits not required for routine maintenance and minor improvements of acequias. Sec. 7. Notification to permit applicants; compliance with NEPA. Sec. 8. Assistance to governing bodies. Sec. 9. Spiritual and cultural sites. Sec. 10. Process for recognition of historical-traditional use boundaries of qualified land grant-mercedes. 2. Findings Congress finds the following: (1) From the 17th to the mid-19th centuries, the Governments of Spain and Mexico made grants of land to individuals, groups, and communities throughout the Southwest United States to promote settlement in frontier lands. (2) The key land ownership feature for a land grants-merced was common lands, meaning lands that were not individually owned but were considered commons for use by all local residents to provide the necessary resources to sustain the entire community. (3) On February 2, 1848, the United States and Mexico ended the Mexican-American war by signing the Treaty of Peace, Friendship, Limits, and Settlement (commonly known as the Treaty of Guadalupe Hidalgo), in which Mexico formally relinquished to the United States claims to over 790,000 square miles of land now constituting all or part of Arizona, California, Colorado, Nevada, New Mexico, Texas, Utah, and Wyoming. (4) The Treaty of Guadalupe Hidalgo included provisions under article VIII for the protection of established property rights, including community land grants located in the new territories, and the United States and Mexico further affirmed these protections in the Protocol of Queretaro. (5) Although the Senate struck article X of the Treaty of Guadalupe Hidalgo as negotiated, the United States clarified in the subsequent Protocol of Queretaro that these grants … preserve the legal value which they may possess and the grantees in the new territories retained their property rights. (6) As noted by the Government Accountability Office in the 2001 report GAO–01–951, The Protocol specified the United States' position that land grant titles would be protected under the treaty and that grantees could have their ownership of land acknowledged before American tribunals. . (7) In the second half of the 19th century, the United States enacted various laws establishing processes to review property claims in the new territories, such as the Act of July 22, 1854 (10 Stat. 308; ch. 103), that created the office of Surveyor General of New Mexico and the Act of March 3, 1891 (26 Stat. 854; ch. 539), that created the Court of Private Land Claims. (8) The established processes differed from State to State, and a history of problematic surveys and corruption may explain why there was so much acreage lost by community land grants and why so few survived into modern times as self-governing entities administering intact common lands. (9) Studies have concluded that for land grant communities and community members to survive in the non-cash economies prior to the mid-20th century, it was essential that they have access to the common land resources of their own private inholdings, which provided a complete resource base for successful small-scale family farming and stock-raising activities, upon which the local economy was based. (10) New Mexico’s community land grants, now known as land grant-mercedes, are an important part of the State’s culture and history and have been recognized under the Kearny Code of 1846 and subsequent territorial laws of New Mexico and New Mexico State law. (11) Article 2, section 5 of the constitution of New Mexico states, The rights, privileges and immunities, civil, political and religious guaranteed to the people of New Mexico by the Treaty of Guadalupe Hidalgo shall be preserved inviolate , providing powerful constitutional protection for the rights of the State’s land grant communities. (12) Water delivery systems known as acequias, or community ditches, are a centuries-old system used for water distribution, introduced to New Mexico by the Spanish in the 16th century, to allow for farming to sustain the needs of the community, creating a cultural landscape and way of life centered around local agriculture. (13) In New Mexico, acequias are governed by a centuries-old form of water governance, known as acequias, that are political subdivisions of the State and are composed of a board of private land owners that are responsible for the upkeep and maintenance of the acequias and for monitoring and administering surface water rights along the acequia. (14) In New Mexico, acequias have created a cultural landscape and way of life centered around local agriculture, water governance, and a custom of sharing scarce water. 3. Definitions In this Act: (1) Community users The term community user means— (A) with respect to a qualified acequia, an individual who is the legal owner of a water right on a qualified acequia; and (B) with respect to a qualified land grant-merced, an heir as defined by N.M. Stat. § 49–1–1.1. (2) Governing body The term governing body — (A) with respect to a qualified acequia, means the board composed of private land owners (known as commissioners) for such qualified acequia, as provided in N.M. Stat. § 73–2–12 and recognized as a political subdivision of the State under N.M. Stat. § 73–2–28; and (B) with respect to a qualified land grant-merced, means the board of trustees charged under State law with the control, care, and management of the qualified land grant-merced. (3) Historical-traditional use boundary The term historical-traditional use boundary , with respect to a land grant-merced, means the boundary recognized under the process described in section 10. (4) Patent boundary The term patent boundary , with respect to a land grant-merced, means the boundary in the official survey that accompanied the land patent issued by the United States for a land grant-merced claim at the conclusion of the adjudication process required by the Treaty of Guadalupe Hidalgo. (5) Qualified acequia The term qualified acequia means a waterway in the State recognized as an acequia or a community ditch under State or Federal law, including the diversions, storage facilities, and easements of such waterway. (6) Qualified land grant-merced The term qualified land grant-merced — (A) means a community land grant issued under the laws or customs of Spain or Mexico that received a patent from the United States or has been recognized under State law; and (B) includes land— (i) with respect to a land grant-merced that has not completed the process under section 10, within the patent boundary of such land grant-merced; and (ii) with respect to a land grant-merced that has completed the process under section 10, the historical-traditional use boundary of such land grant-merced. (7) State The term State means the State of New Mexico. (8) Secretary concerned The term Secretary concerned means— (A) if the qualified acequia or qualified land grant-merced concerned is located on land under the administration of the Secretary of Agriculture, or adjacent to such land, the Secretary of Agriculture; or (B) if the qualified acequia or qualified land grant-merced concerned is located on land under the administration of the Secretary of the Interior, or adjacent to such land, the Secretary of the Interior. 4. Notice and comment (a) Notice and comment process Not less than 90 days before the Secretary adopts, amends, or revises a management plan for, or before the Secretary conducts an action for which a detailed statement is required under section 102(2)(C) of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) to be conducted on, any Federal land that contains any portion of a qualified land grant-merced, or any Federal land that is adjacent to or nearby a qualified land grant-merced, the Secretary concerned shall— (1) provide written notice and an opportunity for comment to— (A) the governing body of the qualified land grant-merced using the mailing address and electronic address on file in the database established under subsection (c); and (B) the relevant State agency thats purpose is to serve as a liaison between land grants-mercedes and the Federal Government; (2) hold not less than 2 meetings with the governing body of the qualified land grant-merced on the proposed adoption, amendment, or revision of the management plan, or the proposed action, within the immediate vicinity of the qualified land grant-merced; and (3) not less than 30 days before each public meeting, notify the governing body of the qualified land grant-merced of the date, time, location, and subject matter of such public meeting. (b) Notification of final plan Not less than 10 days after the Secretary adopts, amends, or revises a management plan for any Federal land that contains any portion of a qualified land grant-merced, or any Federal land that is adjacent to any land grant-merced, the Secretary concerned shall— (1) provide written notice to the governing body of the qualified land grant-merced using the mailing address and electronic address on file in the database established under subsection (c); and (2) publish notice of availability of the final plan in a local newspaper. (c) Database of governing bodies The Secretary concerned shall maintain and periodically update a database of the mailing address and, if available, electronic address of each governing body of a qualified land grant-merced. The Secretary concerned shall be responsible for verifying the information in the database is correct before providing any notice required by this section. (d) Evaluation Before the Secretary adopts, amends, or revises a management plan for, or before the Secretary conducts an action for which a detailed statement is required under section 102(2)(C) of the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) to be conducted on any Federal land that contains any portion of a qualified land grant-merced, or any Federal land that is adjacent to or nearby a qualified land grant-merced, the Secretary concerned shall, in consultation with the governing body of the qualified land grant-merced, evaluate the potential impact of the adoption, amendment, or revision, or the proposed action, on the ability of the relevant community users and governing body of the qualified land grant-merced to carry out the historical-traditional uses described in section 5. (e) Mitigation If the Secretary determines that a the adoption, amendment, or revision of a management plan, or the proposed action, may result in an adverse impact to a historical-traditional use described in section 5 of relevant community users or governing body of the qualified land grant-merced, the Secretary shall, to the maximum extent practical and consistent with the purposes, policies, and programs of Federal laws and regulations applicable, mitigate such adverse impact. 5. Guidance on permit requirements for qualified land grant-mercedes (a) In general Not later than 1 year after the date of the enactment of this Act, the Secretary concerned, in consultation with the governing bodies of a qualified land grant-merced, shall issue written guidance for each of the uses described in paragraphs (1) through (3) of subsection (c) on— (1) what activities conducted by a community user or governing body of a qualified land grant-merced, or a contractor of such a governing body, on such qualified land grant-merced require the community user or governing body of the qualified land grant-merced to obtain a permit from the Secretary concerned; (2) what administrative procedures must be followed to obtain such permit; (3) what fees are required to obtain such permit; (4) the permissible use of motorized and non-motorized vehicles by community users or the governing body of a qualified land grant-merced on such qualified land grant-merced to carry out each of the uses described in paragraphs (1) through (3) of subsection (c) on such qualified land grant-merced; (5) permissible use of mechanized equipment by community users or the governing body of a qualified land grant-merced on such qualified land grant-merced to carry out each of the uses described in paragraphs (1) through (3) of subsection (c) on such qualified land grant-merced; and (6) permissible use of non-native materials by community users or the governing body of a qualified land grant-merced to carry out each of the uses described in paragraphs (1) through (3) of subsection (c) on such qualified land grant-merced. (b) Fees for qualified land grant-Mercedes (1) In general When determining the fees referred to in subsection (a)(3), the Secretary concerned shall consider the socio-economic conditions of community users and the annual operating budgets of governing bodies of qualified land grant-mercedes. (2) Fees for historical-traditional uses The Secretary concerned shall waive any fee to obtain a permit for a historical-traditional use to be conducted by a community user or governing body of a qualified land grant-merced on such qualified land grant-merced, except that the Secretary is not required under this paragraph to waive a fee to obtain a permit for grazing. (c) Definitions For the purposes of this section: (1) Historical-traditional uses Historical-traditional uses on a qualified land grant-merced on Federal land are— (A) use of water; (B) religious and cultural use; (C) gathering herbs; (D) gathering wood products; (E) gathering flora and botanical products; (F) grazing, to the extent that grazing has traditionally been carried out on such land; (G) recreation; (H) hunting and fishing; (I) soil and rock gathering; and (J) any other traditional activity that has sustainable beneficial community uses that support the long-term cultural and socio-economic integrity of the community and that is agreed to in writing by the Secretary concerned and the governing body of the relevant qualified land grant-merced. (2) Routine maintenance and minor improvements Routine maintenance and minor improvements on a qualified land grant-merced on Federal land are— (A) cleaning, repair, or replacement in kind of infrastructure; (B) maintenance and upkeep of a trail, road, or fence; (C) maintenance and upkeep of a monument or shrine; (D) maintenance and upkeep of a community cemetery; (E) maintenance and upkeep of a livestock well or water tank; and (F) any other traditional activity that preserves the state of the qualified land grant-merced, as agreed to in writing by the Secretary concerned and the governing body of the qualified land grant-merced. (3) Major improvements Major improvements on a qualified land grant-merced on Federal land are— (A) construction or expansion of a community water or wastewater system; (B) construction or major repair of a livestock well or water tank; (C) construction or major repair of a monument or shrine; (D) installation of a cattle guard; (E) construction of a trail, road, or fence; and (F) construction or expansion of a cemetery. 6. Special use permits not required for routine maintenance and minor improvements of acequias (a) In general Special use permits shall not be required for the presence of or use of water from a qualified acequia on Federal land or for routine maintenance and minor improvements conducted by a community user, governing body or employee of a qualified acequia on a qualified acequia on Federal land. (b) Routine maintenance and minor improvements For purposes of this section, routine maintenance and minor improvements on a qualified acequia on Federal land are— (1) cleaning, maintenance, repair, or replacement in kind of infrastructure; (2) annual ditch cleaning, including removal of silt; and (3) any other traditional activity that preserves the state of the qualified acequia, as agreed to in writing by the Secretary concerned and the governing body of the qualified acequia. 7. Notification to permit applicants; compliance with NEPA (a) Notification to permit applicants (1) In general Not later than 45 days after receiving a request for a permit from a governing body, the Secretary concerned shall provide a written response to the governing body notifying the governing body that— (A) the permit has been approved; (B) the permit has been denied, including a description of why the permit was denied; or (C) such activity requires an environmental assessment or environmental impact statement, as applicable, before a permit may be issued for the activity. (b) Compliance with NEPA In any case in which an environmental assessment or environmental impact statement is required under the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) for an activity for which a governing body has requested a permit from the Secretary concerned to conduct such activity on a qualified acequia or qualified land grant-merced on Federal land, and for which the Secretary has not denied the permit under subsection (a)(3), the Secretary shall— (1) estimate the time necessary to complete such environmental assessment or environmental impact statement; (2) not later than 30 days after receiving the request for a permit from a governing body, notify the governing body of such estimation; and (3) not later than 30 days after completing all action required under such Act for such activity— (A) issue such permit to the community user or governing body; or (B) notify the community user or governing body that the request for a permit has been denied. (c) Failure To time estimate If the Secretary concerned fails to prepare an environmental assessment or environmental impact statement within the respective time period estimated under subsection (b)(1), then the Secretary shall— (1) notify the governing body in writing of the delay; (2) notify Congress in writing of the delay; (3) make a new estimate of the time necessary to complete such environmental assessment or environmental impact statement; and (4) not later than 30 days after the end of the respective time period estimated under subsection (b)(1) notify the governing body of such new estimation. (d) Cost of NEPA compliance In consideration of the socio-economic conditions of community users and the annual operating budgets of governing bodies of qualified acequias and qualified land grant-mercedes, the Secretary concerned may waive any cost-share requirement on the community user or the governing body of a qualified acequia or qualified land grant-merced with respect to the cost of compliance with the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq.) for an activity to be conducted on a qualified acequia or qualified land grant-merced on Federal land by a community user or governing body of a qualified acequia or qualified land grant-merced for which the Secretary has required such community user or governing body of a qualified acequia or qualified land grant-merced to obtain a permit from the Secretary. 8. Assistance to governing bodies Not later than 60 days after a governing body requests in writing assistance from the Secretary concerned to explain or clarify a process of the agency relating to the agency’s interaction with the governing body, the Secretary shall provide such assistance in writing to the governing body. 9. Spiritual and cultural sites (a) Identification of spiritual and cultural sites (1) Identification before a management plan is adopted, amended, or revised Not less than 1 year before a management plan is adopted, or the first time a management plan is amended or revised after the date of the enactment of this Act, for any Federal land that contains any portion of a qualified land grant-merced, the Secretary concerned shall, in consultation with governing body of such qualified land grant-merced, identify all spiritual and cultural sites located on such Federal land. (2) Identification before disposal Not less than 180 days before any Federal land that contains any portion of a qualified land grant-merced is disposed of pursuant to section 202 of the Federal Land Policy and Management Act of 1976 ( 43 U.S.C. 1712 ), the Secretary concerned shall, in consultation with governing body of such qualified land grant-merced, identify all spiritual and cultural sites located on such Federal land. (b) Notification required Before disposing of Federal land that contains any portion of a qualified land grant-merced upon which a spiritual and cultural site is located, and before acquiring any non-Federal land upon which a spiritual and cultural site is located, the Secretary concerned shall notify the governing body of such qualified land grant-merced. (c) Revision of guidance The Secretary shall revise any guidance applicable to the disposal of such land to encourage conveyances, leases, exchanges, modified competitive sales, or direct sales to the governing body of such qualified land grant-merced, as appropriate and consistent with the purposes, policies, and programs of Federal laws and regulations applicable to these lands. (d) Definition of spiritual and cultural site In this section, the term spiritual and cultural site means a cemetery, pilgrimage site, shrine, or similar site that has a spiritual or cultural significance for the community users of a land grant-merced, as determined by the Secretary, of the relevant land grant-merced. 10. Process for recognition of historical-traditional use boundaries of qualified land grant-mercedes (a) Submission of proposed boundaries During the 5-year period beginning on the date of the enactment of this Act, a governing body of a qualified land grant-merced may submit to the Forest Supervisor or Field Manager, as appropriate, of the Secretary concerned the governing body’s interpretation of the historical-traditional use boundaries using geographical and historical evidence supported by maps and documentation. (b) Acceptable sources of records Acceptable documentation for the purposes of subsection (a) includes records from the following sources: (1) The National Archives and Records Administration in Washington, DC, Regional Archives and Presidential Libraries. (2) Archivo General de la Nación (Mexico City), Archivo de la Real Audiencia de La Nueva Galicia (Guadalajara), Archivos Generales de Indias, Simancas y de la Corona de Aragón (Seville), Archivo General de Simancas (Valladolid), Biblioteca Nacional (Madrid), and the national archives of other countries. (3) The New Mexico State Records Center and Archives, California State Library, and archives and libraries of other States. (4) The Department of the Interior, the Department of Agriculture, and other Federal agencies. (5) The University of New Mexico, including the Center for Southwest Research, the Zimmerman Library, the Special Collections at the University of New Mexico Law Library, the Spanish Colonial Research Center, the University of New Mexico Land Grant Studies Program, Bancroft Library at the University of California, Berkley, and other university archives and special collections. (6) The primary sources cited in: the Master of Laws (L.L.M.) thesis by J.J. Bowden at Southern Methodist University Law School entitled Private land Claims in The Southwest , the Government Accountability Office Reports GAO–01–951 and GAO–04–59, and the Benavides and Golten Study in the Natural Resources Journal, Vol. 48, Fall 2008. (7) Office of the Attorney General of the State of New Mexico, the New Mexico Land Grant Council, and other agencies of the State. (8) State Legislative Records. (9) Records of courts, counties, and municipalities. (10) Records of members of Congress not included in the National Archives. (11) Authenticated records of land grant-mercedes, pueblos, tribes, and private entities. (c) Notice of receipt of materials Not later than 60 days after receipt of a submission pursuant to subsection (a), the Forest Supervisor, Field Manager, or other similarly situated authority, as appropriate, of the Secretary concerned shall notify the governing body that the submission was received. (d) Process for determination of historical-Traditional use boundaries (1) In general Not later than 14 months after receipt of a submission pursuant to subsection (a), the Forest Supervisor or Field Manager, or other similarly situated authority, as appropriate, of the Secretary concerned shall— (A) approve of the historical-traditional use boundaries as proposed by the qualified land grant-merced governing body; or (B) offer an alternative historical-traditional use boundary using geographical and historical evidence supported by maps and documentation. (2) Alternative historical-traditional use boundary If an alternative historical-traditional use boundary is offered by the Forest Supervisor or Field Manager, or other similarly situated authority, as appropriate, of the Secretary concerned under paragraph (1)(B), then the governing body of the qualified land grant-merced shall have 180 days to accept the alternative historical-traditional use boundary. (3) Step-by-step negotiation process to determine historic-traditional use boundaries of a land grant-merced If an alternative historical-traditional use boundary is offered by the Forest Supervisor or Field Manager, or other similarly situated authority, as appropriate, of the Secretary concerned under paragraph (1)(B) and the governing body of the qualified land grant-merced does not accept the boundary within the 180-day period described in paragraph (2), then a negotiation process shall take place as follows: (A) Regional level The governing body of the qualified land grant-merced and the Regional Forester or State Director, or other similarly situated authority, as appropriate, shall— (i) jointly notify the relevant Forest Supervisor or Field Manager, or other similarly situated authority, as appropriate, of the Secretary concerned that negotiations have been elevated to the regional level; and (ii) have one year from the date of the expiration of the 180-day period described in paragraph (2) to negotiate an agreement on the historical-traditional use boundary. (B) Director level If an agreement is not reached under subparagraph (A), then the governing body of the qualified land grant-merced and the Chief of the Forest Service or the Director of the Bureau of Land Management, or other similarly situated authority, as appropriate, shall have one additional year to negotiate an agreement on the historical-traditional use boundary. (C) Departmental level If an agreement is not reached under subparagraph (B), then the governing body of the qualified land grant-merced and the Secretary concerned shall have one additional year to negotiate an agreement on the historical-traditional use boundary. (4) Failure of negotiation process If the negotiation process described in paragraph (3) does not result in an agreement between the governing body of the qualified land grant-merced and the Secretary concerned, or, if requested by the governing body of the qualified land grant-merced at any time during the negotiation process described in paragraph (3), then the Secretary concerned shall, not later than 90 days after the expiration of the time period described in paragraph (3)(C), issue a final decision on the historical-traditional use boundary of the land grant-merced. (5) Federal court Any decision made under paragraph (4) shall be appealable to Federal court, and the court shall hear the case de novo. Both parties shall submit to the court evidence supporting such party’s interpretation of the historical-traditional use boundaries. The court shall determine the historic-traditional boundary of the land grant-merced that most accurately represents the area of historical and traditional use. (6) Management of qualified land grant-merced Management of lands located within the patent boundary of a qualified land grant-merced shall not be affected during the negotiation process under paragraphs (3) or (4) or the appeal process under paragraph (5). (e) Amendment of management plan To reflect historical-Traditional use boundaries Not later than two years after the determination of the historical-traditional use boundaries of a qualified land grant-merced under this section, the Secretary concerned shall— (1) conduct a land survey of the historical-traditional use boundary of a land grant-merced; (2) create a map that depicts such historical-traditional use boundary; and (3) amend the management plans for appropriate lands in accordance with section 4. (f) Treatment of newly reconstituted qualified land grant-Mercedes If a qualified land grant-merced is established after the date of the enactment of this Act, then the 5-year period described in subparagraph (a) shall begin on the date of such establishment.