Report text available as:

  • TXT
  • PDF   (PDF provides a complete and accurate display of this text.) Tip ?
116th Congress   }                                            {    Report
                          HOUSE OF REPRESENTATIVES
 2d Session      }                                            {   116-602

======================================================================



 
  LAND GRANT-MERCEDES TRADITIONAL USE RECOGNITION AND CONSULTATION ACT

                                _______
                                

 November 19, 2020.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

 Mr. Grijalva, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3682]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 3682) 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, having 
considered the same, reports favorably thereon with amendments 
and recommends that the bill as amended do pass.
    The amendments are as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Land Grant-Mercedes Traditional Use 
Recognition and Consultation Act''.

SEC. 2. DEFINITIONS.

  In this Act:
          (1) Acequia.--The term ``acequia'' has the meaning of the 
        term ``community ditch'' as that term is construed under New 
        Mexico Stat. 73-2-27.
          (2) Community user.--The term ``community user'' means an 
        heir (as defined under the laws of the State) of a qualified 
        land grant-merced.
          (3) Governing body.--The term ``governing body'' means the 
        board of trustees authorized under State law with the control, 
        care, and management of a qualified land grant-merced.
          (4) Historical-traditional use.--The term ``historical-
        traditional use'' means, for a qualified land grant-merced, for 
        noncommercial benefit--
                  (A) the use of water;
                  (B) religious or cultural use and protection;
                  (C) gathering herbs;
                  (D) gathering wood products;
                  (E) gathering flora or botanical products;
                  (F) grazing, to the extent that grazing has 
                traditionally been carried out on the land, as 
                determined by the Secretary concerned in consultation 
                with the governing body of the affected land grant-
                merced;
                  (G) hunting or fishing;
                  (H) soil or rock gathering; and
                  (I) any other traditional activity for noncommercial 
                benefit that--
                          (i) has a sustainable beneficial community 
                        use, as determined by the Secretary concerned 
                        in consultation with the governing body of the 
                        affected land grant-merced;
                          (ii) supports the long-term cultural and 
                        socioeconomic integrity of the community, as 
                        determined by the Secretary concerned in 
                        consultation with the governing body of the 
                        affected land grant-merced; and
                          (iii) is agreed to in writing by the 
                        Secretary concerned and the governing body of 
                        the qualified land grant-merced.
          (5) Indian tribe.--The term ``Indian Tribe'' has the meaning 
        given the term in section 4 of the Indian Self-Determination 
        and Education Assistance Act (25 U.S.C. 5304).
          (6) Qualified land grant-merced.--The term ``qualified land 
        grant-merced'' means a community land grant issued under the 
        laws or customs of the Government of Spain or Mexico that--
                  (A) is recognized under New Mexico Statutes Chapter 
                49 (or a successor statute); and
                  (B) has a historic or cultural record of use of lands 
                under the jurisdiction of a Secretary concerned or 
                their original or patented exterior boundaries are 
                located adjacent to land under the jurisdiction of a 
                Secretary concerned.
          (7) Secretary concerned.--The term ``Secretary concerned'' 
        means the relevant Secretary of the Department of Agriculture 
        or the Department of the Interior, with respect to land under 
        the jurisdiction of that Secretary.
          (8) State.--The term ``State'' means the State of New Mexico.

SEC. 3. GUIDANCE ON PERMIT REQUIREMENTS FOR QUALIFIED LAND GRANT-
                    MERCEDES.

  (a) In General.--In accordance with all relevant laws, including 
subchapter II of chapter 5 of title 5, United States Code (commonly 
known as the ``Administrative Procedure Act'') and all applicable 
environmental laws, and not later than 2 years after the date of the 
enactment of this Act, the Secretary concerned, acting through the 
appropriate officials of the Department of Agriculture and Department 
of the Interior in the State, in consultation with the New Mexico Land 
Grant Council, the governing bodies of qualified land grant-mercedes, 
and Indian Tribes, shall issue the written guidance described in 
subsection (b).
  (b) Contents of Guidance.--
          (1) In general.--Written guidance issued under subsection (a) 
        shall include--
                  (A) a description of the historical-traditional uses 
                that--
                          (i) a community user or a governing body of a 
                        qualified land grant-merced may conduct for 
                        noncommercial use on land under the 
                        jurisdiction of the Secretary concerned; and
                          (ii) require a permit from the Secretary 
                        concerned;
                  (B) administrative procedures for obtaining a permit 
                under subparagraph (A);
                  (C) subject to subsection (c), the fees required to 
                obtain that permit;
                  (D) the permissible use of motorized and nonmotorized 
                vehicles and equipment by a community user or the 
                governing body of a qualified land grant-merced for 
                noncommercial historical-traditional use on land under 
                the jurisdiction of the Secretary concerned;
                  (E) the permissible use of mechanized vehicles or 
                equipment by a community user or governing body of a 
                qualified land grant-merced for historical-traditional 
                use on land under the jurisdiction of the Secretary 
                concerned; and
                  (F) the permissible use of non-native material by a 
                community user or the governing body of a qualified 
                land grant-merced for any of the uses covered in 
                paragraphs (2) and (3) on land under the jurisdiction 
                of the Secretary concerned.
          (2) Routine maintenance and minor improvements.--Written 
        guidance issued under subsection (a) shall address routine 
        maintenance and minor improvements of infrastructure owned or 
        used by a qualified land grant-merced on land under the 
        jurisdiction of the Secretary concerned, including--
                  (A) cleaning, repair, or replacement-in-kind of 
                infrastructure;
                  (B) maintenance and upkeep of a trail, road, cattle 
                guard, culvert, 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, water 
                lines, water storage container, or water tank; and
                  (F) any other routine maintenance or minor 
                improvement associated with historical-traditional uses 
                identified by any of the entities described in 
                subsection (a) in the process of developing the 
                guidance.
          (3) Major improvements.--Written guidance issued under 
        subsection (a) may describe the process for managing major 
        improvements of infrastructure owned or used by a qualified 
        land grant-merced on land under the jurisdiction of the 
        Secretary concerned, including--
                  (A) construction or expansion of a community water or 
                wastewater system;
                  (B) construction or major repair of a livestock well, 
                water lines, water storage container, 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;
                  (F) construction or expansion of a cemetery; and
                  (G) any other major improvement associated with 
                historical-traditional uses, as determined by the 
                Secretaries concerned.
          (4) Notice and comment.--Written guidance issued under 
        subsection (a) shall set forth the policies and procedures for 
        notice and comment on planning decisions, routine engagement, 
        and major Federal actions that could impact historical-
        traditional uses of a qualified land grant merced, and methods 
        of providing notice under subsection (a), including--
                  (A) online public notice;
                  (B) printed public notice;
                  (C) mail, including certified mail, and email 
                notifications to governing bodies through a listserv; 
                and
                  (D) mail, including certified mail, and email 
                notifications to the Land Grant Council.
  (c) Fees for Qualified Land Grant-mercedes.--Where the Secretary 
concerned is authorized to consider the fiscal capacity of the 
applicant in determining whether to reduce or waive a fee for a permit 
for historical-traditional uses, the Secretary shall consider--
          (1) the socioeconomic conditions of community users; and
          (2) the annual operating budgets of governing bodies of 
        qualified land grant-mercedes.

SEC. 4. CONSIDERATION OF HISTORICAL-TRADITIONAL USE IN LAND MANAGEMENT 
                    PLANNING.

  In developing, maintaining, and revising land management plans 
pursuant to section 202 of the Federal Land Policy and Management Act 
of 1976 (43 U.S.C. 1712) and section 6 of the National Forest 
Management Act (16 U.S.C. 1604), as applicable, the Secretary concerned 
shall, in accordance with applicable law, consider and, as appropriate, 
provide for and evaluate impacts to historical-traditional uses by 
qualified land grants-mercedes.

SEC. 5. SPECIAL USE PERMITS FOR ROUTINE MAINTENANCE AND MINOR 
                    IMPROVEMENTS OF ACEQUIAS.

  (a) In General.--Not later than 90 days after the date of the 
enactment of this Act, the Secretary Agriculture shall initiate 
procedures under subchapter III of chapter 5 of title 5, United States 
Code, to promulgate such regulations as are necessary to carry out and 
implement the Forest Service's Acequia Guidance Document, dated July 2, 
2019.
  (b) Publication of Proposed Regulations.--The Secretary shall cause 
to be published in the Federal Register proposed regulations to 
implement this section not later than 21 months after the date of the 
enactment of this Act.
  (c) Expiration of Authority.--The authority to promulgate regulations 
under subsection (a) shall expire 30 months after the date of the 
enactment of this Act.
  (d) Extension of Deadlines.--The Secretary may extend, for not more 
than 180 days, a deadline under subsection (b) or (c) if--
          (1) the negotiated rulemaking committee referred to in 
        subsection (e) concludes that the committee cannot meet the 
        deadline; and
          (2) the Secretary so notifies the appropriate committees of 
        Congress.
  (e) Committee.--
          (1) Establishment.--The Secretary shall ensure that a 
        negotiated rulemaking committee is established under section 
        565 of title 5, United States Code, to carry out this section.
          (2) Members.--The members of the committee shall be--
                  (A) the relevant Regional Forester (or a designee of 
                the relevant Regional Forester); and
                  (B) the selected representative of a nongovernmental 
                organization identified by the Secretary of Agriculture 
                as having a statewide acequia membership, nominated by 
                such organization to the Secretary of Agriculture.
          (3) Requirements.--The committee shall confer with, and 
        accommodate participation by--
                  (A) representatives of any agency or commission of 
                the State government established or designated by the 
                State to advise public officials on proposed 
                legislation affecting acequias; and
                  (B) State acequia elected officials.
  (f) Effect.--The lack of promulgated regulations shall not limit the 
effect of the Forest Service's Acequia Guidance Document, dated July 2, 
2019.

SEC. 6. SAVINGS.

  Nothing in this Act shall be construed--
          (1) to impact the State's authority to regulate water rights, 
        in conformance with all State and Federal laws and regulations;
          (2) to impact the State's authority to regulate the 
        management of game and fish, in conformance with all State and 
        Federal laws and regulations;
          (3) to impact any valid existing rights or valid permitted 
        uses, including grazing permits;
          (4) to create any implicit or explicit right to grazing on 
        Federal lands; or
          (5) to alter or diminish any rights reserved for an Indian 
        Tribe or members of an Indian Tribe by treaty or Federal law.

    Amend the title so as to read:
    A bill to provide for greater consultation between the 
Federal Government and the governing bodies and community users 
of land grant-mercedes in New Mexico, to provide for a process 
for recognition of the historic-traditional uses of land grant-
mercedes, and for other purposes.

                          PURPOSE OF THE BILL

    The purpose of H.R. 3682 is to provide for greater 
consultation between the federal government and the governing 
bodies of land grants-mercedes and acequias in New Mexico.

                  BACKGROUND AND NEED FOR LEGISLATION

    H.R. 3682 enhances consultation between federal land 
management agencies and the governing bodies of New Mexico's 
land grants-mercedes and acequias. Land grant-merced 
communities and acequia users have long been a presence on the 
New Mexican landscape, operating since before these lands were 
part of the United States. The bill recognizes the complicated 
history of interaction between the federal government and these 
communities and endeavors to clarify and improve these 
management relationships under existing statutes and 
regulations.
    From the late 1600s through 1846, Spain and the Mexican 
Republic granted more than 150 land grants to communities and 
individuals throughout the area that would become the 
Southwestern United States to promote settlement on frontier 
lands.\1\ In New Mexico, these grants included private tracts 
that were made in the name of the grants' settlers as well as 
large tracts of communal lands that were set aside for use by 
all local residents to provide the necessary resources to 
sustain the entire community.
---------------------------------------------------------------------------
    \1\See generally N.M. Land Grant Council, Briefing on Land Grant-
Merced History and Current Legislation (2018), https://lgc.unm.edu/
sites/default/files/desktop/hr_6487-_taditional_uses_bill_lujan_0.pdf, 
of which the above text is largely excerpts.
---------------------------------------------------------------------------
    In 1848, the Treaty of Guadalupe Hidalgo (Treaty) that 
ended the Mexican-American War transferred more than half of 
Mexico's territory to the U.S. and required the U.S. to 
establish a process for adjudicating and recognizing land grant 
titles. The adjudication of land grant titles in New Mexico was 
subject to two different processes: the first process was 
administered by the Office of the Surveyor General of New 
Mexico from 1854 to 1891 and the second by the Court of Private 
Land Claims from 1891 to 1904. The established processes varied 
by state and were often subverted by corruption and problematic 
surveys. Land grants-mercedes have been recognized in state 
statute in New Mexico since the late 1800s, and in 2004 they 
were formally recognized under state law as political 
subdivisions of the state of New Mexico, affirming their local 
government status. Land grants-mercedes are governed by an 
elected board of trustees tasked with the control, care, and 
management of the land grant-merced common property and assets 
for the benefit of their respective communities.
    In addition to community land grants-mercedes, Spain 
managed a centuries-old form of water delivery and governance, 
known as acequias, across New Mexico to create a cultural 
landscape and way of life centered around local agriculture. In 
New Mexico, acequias are governed as political subdivisions of 
the state and are composed of a board of private landowners 
that is responsible for the upkeep and maintenance of the 
acequias as well as for the administration of surface water 
rights along the acequias.
    H.R. 3682, as updated by Chair Grijalva's amendment in the 
nature of a substitute, clarifies the processes through which 
land grants-mercedes and acequia users can access certain 
resources on federal land. The bill requires federal land 
management agencies to compile guidance on permitting processes 
and fees for certain activities, including resource uses and 
the maintenance of existing facilities. It also provides 
additional clarity on timelines and opportunities to comment on 
federal land management decisions, in order for these 
communities to more readily participate in the public processes 
accompanying major federal actions.
    H.R. 3682, as amended, recognizes the importance of 
protecting culturally important sites for land grant 
communities and emphasizes the need to consider these uses in 
the process of planning federal actions. Additionally, the bill 
instructs the Secretary of Agriculture to begin a negotiated 
rulemaking regadring acequia infrastructure. This process 
should implement the existing U.S. Forest Service guidance as 
well as previous rulings on ``routine maintenance'' and 
``construction'' from federal courts, such as in Southern Utah 
Wilderness Alliance v. Bureau of Land Management, 425 F.3d 735 
(10th Cir. 2005), in order to resolve longstanding concerns 
regarding acequia upkeep and maintenance.
    The intent of the bill is not to undermine valid existing 
rights or to extend additional implicit rights, but to 
recognize long-practiced traditional uses by land grant-merced 
communities and acequia users on lands managed by the federal 
government and to clarify the existing relationship between 
land grant-merced communities and acequia users and the federal 
government in order to minimize conflict and confusion 
surrounding resource management.

                            COMMITTEE ACTION

    H.R. 3682 was introduced on July 10, 2019, by 
Representative Ben Ray Lujan (D-NM). The bill was referred 
solely to the Committee on Natural Resources, and within the 
Committee to the Subcommittee on National Parks, Forests, and 
Public Lands and the Subcommittee on Water, Oceans, and 
Wildlife. On June 18, 2020, the Subcommittee on National Parks, 
Forests, and Public Lands held a hearing on the bill. On July 
29, 2020, the Natural Resources Committee met to consider the 
bill. The Subcommittees were discharged by unanimous consent. 
Chair Raul M. Grijalva (D-AZ) offered an amendment in the 
nature of a substitute. The amendment was agreed to by 
unanimous consent. No additional amendments were offered. The 
bill, as amended, was adopted and ordered favorably reported to 
the House of Representatives by unanimous consent.

                                HEARINGS

    For the purposes of section 103(i) of H. Res. 6 of the 
116th Congress--the following hearing was used to develop or 
consider H.R. 3682: legislative hearing by the Subcommittee on 
National Parks, Forests, and Public Lands held on June 18, 
2020.

            COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                  COMPLIANCE WITH HOUSE RULE XIII AND 
                        CONGRESSIONAL BUDGET ACT

    1. Cost of Legislation and the Congressional Budget Act. 
With respect to the requirements of clause 3(c)(2) and (3) of 
rule XIII of the Rules of the House of Representatives and 
sections 308(a) and 402 of the Congressional Budget Act of 
1974, the Committee has received the following estimate for the 
bill from the Director of the Congressional Budget Office:

                                     U.S. Congress,
                               Congressional Budget Office,
                                  Washington, DC, October 20, 2020.
Hon. Raul M. Grijalva,
Chairman, Committee on Natural Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 3682, the Land 
Grant-Mercedes Traditional Use Recognition and Consultation 
Act.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Janani 
Shankaran.
            Sincerely,
                                         Phillip L. Swagel,
                                                          Director.
    Enclosure.

    
    

    H.R. 3682 would require the Bureau of Land Management (BLM) 
and the Forest Service to develop guidance clarifying how land 
grant communities in New Mexico can access resources and 
conduct traditional activities such as grazing and wood cutting 
on federal land. The bill also would direct the Forest Service 
to issue regulations on the maintenance of acequias, or 
community irrigation systems, located on federal land in the 
state.
    Using information from BLM and the Forest Service, CBO 
estimates that the agencies would require 10 additional 
employees at an average annual cost of $110,000 each for two 
years to collect information on traditional activities, 
determine the boundaries of land grant communities, and develop 
the guidance. The cost for those additional employees over the 
2021-2022 period would total $2 million. Based on the costs of 
similar activities, CBO estimates that the Forest Service would 
incur costs of $1 million to issue regulations on the 
maintenance of acequias. In total, we estimate that 
implementing H.R. 3682 would cost $3 million over the 2021-2025 
period; such spending would be subject to the availability of 
appropriated funds.
    Fees from grazing, the sale of forest products, and special 
use permits on federal land are classified in the budget as 
offsetting receipts, or reductions in direct spending. CBO 
expects that under H.R. 3682 BLM and the Forest Service would 
be more likely to waive or reduce fees paid by land grand 
communities. However, CBO estimates that any increases in 
direct spending would be insignificant over the 2021-2030 
period.
    The CBO staff contact for this estimate is Janani 
Shankaran. The estimate was reviewed by H. Samuel Papenfuss, 
Deputy Director of Budget Analysis.
    2. General Performance Goals and Objectives. As required by 
clause 3(c)(4) of rule XIII, the general performance goals and 
objectives of this bill are to provide for greater consultation 
between the federal government and the governing bodies of land 
grants-mercedes and acequias in New Mexico.

                           EARMARK STATEMENT

    This bill does not contain any Congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined 
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of 
the House of Representatives.

                 UNFUNDED MANDATES REFORM ACT STATEMENT

    This bill contains no unfunded mandates.

                           EXISTING PROGRAMS

    This bill does not establish or reauthorize a program of 
the federal government known to be duplicative of another 
program.

                  APPLICABILITY TO LEGISLATIVE BRANCH

    The Committee finds that the legislation does not relate to 
the terms and conditions of employment or access to public 
services or accommodations within the meaning of section 
102(b)(3) of the Congressional Accountability Act.

               PREEMPTION OF STATE, LOCAL, OR TRIBAL LAW

    Any preemptive effect of this bill over state, local, or 
tribal law is intended to be consistent with the bill's 
purposes and text and the Supremacy Clause of Article VI of the 
U.S. Constitution.

                        CHANGES IN EXISTING LAW

    If enacted, this bill would make no changes to existing 
law.

        SUPPLEMENTAL, MINORITY, ADDITIONAL, OR DISSENTING VIEWS

    None.