H. Rept. 116-602 - LAND GRANT-MERCEDES TRADITIONAL USE RECOGNITION AND CONSULTATION ACT116th Congress (2019-2020)
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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.
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\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.
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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.