<DOC>
[107th Congress House Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:75128.wais]
H.R. 1913, VALUATION OF NONTRIBAL INTEREST OWNERSHIP OF SUBSURFACE
RIGHTS WITHIN THE BOUNDARIES OF THE ACOMA INDIAN RESERVATION
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON ENERGY AND
MINERAL RESOURCES
of the
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
__________
September 13, 2001
__________
Serial No. 107-59
__________
Printed for the use of the Committee on Resources
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COMMITTEE ON RESOURCES
JAMES V. HANSEN, Utah, Chairman
NICK J. RAHALL II, West Virginia, Ranking Democrat Member
Don Young, Alaska, George Miller, California
Vice Chairman Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana Dale E. Kildee, Michigan
Jim Saxton, New Jersey Peter A. DeFazio, Oregon
Elton Gallegly, California Eni F.H. Faleomavaega, American
John J. Duncan, Jr., Tennessee Samoa
Joel Hefley, Colorado Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland Solomon P. Ortiz, Texas
Ken Calvert, California Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado Calvin M. Dooley, California
Richard W. Pombo, California Robert A. Underwood, Guam
Barbara Cubin, Wyoming Adam Smith, Washington
George Radanovich, California Donna M. Christensen, Virgin
Walter B. Jones, Jr., North Islands
Carolina Ron Kind, Wisconsin
Mac Thornberry, Texas Jay Inslee, Washington
Chris Cannon, Utah Grace F. Napolitano, California
John E. Peterson, Pennsylvania Tom Udall, New Mexico
Bob Schaffer, Colorado Mark Udall, Colorado
Jim Gibbons, Nevada Rush D. Holt, New Jersey
Mark E. Souder, Indiana James P. McGovern, Massachusetts
Greg Walden, Oregon Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho Hilda L. Solis, California
Thomas G. Tancredo, Colorado Brad Carson, Oklahoma
J.D. Hayworth, Arizona Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
Allen D. Freemyer, Chief of Staff
Lisa Pittman, Chief Counsel
Michael S. Twinchek, Chief Clerk
James H. Zoia, Democrat Staff Director
Jeff Petrich, Democrat Chief Counsel
------
SUBCOMMITTEE ON ENERGY AND MINERAL RESOURCES
BARBARA CUBIN, Wyoming, Chairman
RON KIND, Wisconsin, Ranking Democrat Member
W.J. ``Billy'' Tauzin, Louisiana Nick J. Rahall II, West Virginia
Mac Thornberry, Texas Edward J. Markey, Massachusetts
Chris Cannon, Utah Solomon P. Ortiz, Texas
Jim Gibbons, Nevada, Calvin M. Dooley, California
Vice Chairman Jay Inslee, Washington
Thomas G. Tancredo, Colorado Grace F. Napolitano, California
C.L. ``Butch'' Otter, Idaho Brad Carson, Oklahoma
Jeff Flake, Arizona
Dennis R. Rehberg, Montana
------
C O N T E N T S
----------
Page
Hearing held on September 13, 2001............................... 1
Statement of Members:
Cubin, Hon. Barbara, a Representative in Congress from the
State of Wyoming........................................... 1
Prepared statement of.................................... 2
Skeen, Hon. Joe, a Representative in Congress from the State
of New Mexico.............................................. 3
Prepared statement of.................................... 4
Response to questions submitted for the record........... 22
Statement of Witnesses:
Chino, Hon. Cyrus J., Governor, Pueblo of Acoma, Acoma, New
Mexico..................................................... 8
Prepared statement of.................................... 9
Response to questions submitted for the record........... 27
McCaleb, Hon. Neal A., Assistant Secretary - Indian Affairs,
U.S. Department of the Interior............................ 17
Prepared statement of.................................... 18
Response to questions submitted for the record........... 24
Sphar, Joe D., Director of Natural Resources, NZ Corporation,
Prepared statement of...................................... 5
Response to questions submitted for the record........... 31
H.R. 1913, TO REQUIRE THE VALUATION OF NONTRIBAL INTEREST OWNERSHIP OF
SUBSURFACE RIGHTS WITHIN THE BOUNDARIES OF THE ACOMA INDIAN RESERVATION
----------
Thursday, September 13, 2001
U.S. House of Representatives
Subcommittee on Energy and Mineral Resources
Committee on Resources
Washington, DC
----------
The Subcommittee met, pursuant to call, at 2:12 p.m., in
Room 1324, Longworth House Office Building, Hon. Barbara Cubin
[Chairman of the Subcommittee] presiding.
STATEMENT OF THE HONORABLE BARBARA CUBIN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Mrs. Cubin. The legislative hearing by the Subcommittee on
Energy and Mineral Resources will now come to order. The
Subcommittee is meeting today to hear testimony on H.R. 1913 to
require the valuation of nontribal interest ownership of
subservice rights within the boundaries of the Acoma Indian
Reservation and for other purposes.
Under Committee rule 4(g), the Chairman--well, since the
Chairman is the only one here today, I will be the only one
making the statement, but the record will be kept open for any
other statements that the Members wish to put in.
Today the Subcommittee will take testimony on legislation
introduced by our colleague from New Mexico, Mr. Skeen. H.R.
1913 is a bill to require the valuation of nontribal ownership
of subsurface rights within the boundaries of the Acoma Indian
Reservation followed by the identification of Federal lands of
comparable value to be exchanged by the Secretary of Interior
in return for these private minerals.
In a sense, this bill has been centuries in the making. The
Pueblo Indians of Acoma have lived atop a mesa known as Sky
City perhaps longer than any other village in America. When the
United States and Mexico signed the Treaty of Guadalupe Hidalgo
in 1848, the land claims of Acoma people and others were
guaranteed to be respected. Indeed, in 1858 Congress
specifically recognized an Acoma land claim including Sky City.
However, at that time the lands below and south of the mesa
were not patented to the Pueblo of Acoma. Consequently, when
the transcontinental railroad land grants were being made, the
St. Louis and San Francisco Railway Company received title to
alternate sections of public land, some of which lands were
subsequently included within the boundaries of the Acoma Indian
Reservation as set in 1928. The United States purchased the
surface estate of these sections from the successor in interest
to the railroad grant lands, but the mineral lands, together
with the right of access to the private minerals, was reserved,
creating today's split-estate posture.
I wish to thank Joe Skeen for attempting to correct what
has become an untenable situation. The Acoma people revere the
area below Sky City mesa which lies within their reservation
and would certainly oppose exercise of the private mineral
rights there. Yet the NZ Corporation has a legitimate right to
explore and develop their reserved interests.
In a similar situation over a decade ago, the Department of
Interior exchanged or purchased private mineral interests in
the area immediately west of the Acoma Reservation which
Congress placed into the El Malpais National Monument.
Basically the question now is this: if an exchange to
acquire private rights was deemed necessary to protect the
scenic and historic values for which a national monument was
established, should we not also allow the Acoma people to
acquire the private mineral rights within their reservation?
I want to thank our witnesses for coming today despite the
terrible circumstances under which our Nation now finds itself.
It would have been quite easy to cancel this hearing and
promise to hold it later when our attention in Congress will be
less diverted, but promises have been made and broken with the
Acoma for too long.
And, I would like the terrorists responsible for Tuesday's
carnage to understand that we will do our best to execute our
duties as Congressman, and I, as Chairman of this panel,
despite their heinous actions, I will recess this hearing if
need be to vote for emergency funding to aid in the disaster as
President Bush and Congress deem responsible. Otherwise, we
will continue to do our jobs here and in the Resources
Committee and attend to matters such as H.R. 1913.
I now would like to recognize the first witness, my good
friend the Honorable Joe Skeen, who represents the Second
District of New Mexico. Joe is one of the gentlemen in this
Congress that I have followed and enjoyed his friendship ever
since I came here. Joe's philosophy of government and States
rights and public lands and private property rights are exactly
what mine are, and I can say that Joe has taught me a lot
through the years.
And, Joe, thank you for being here, and love to hear your
testimony.
[The prepared statement of Mrs. Cubin follows:]
Statement of The Honorable Barbara Cubin, Chairman, Subcommittee on
Energy & Mineral Resources
Today the Subcommittee will take testimony on legislation
introduced by our colleague from New Mexico, Mr. Skeen. H.R. 1913 is a
bill to require the valuation of non-tribal ownership of subsurface
rights within the boundaries of the Acoma Indian Reservation, followed
by the identification of federal lands of comparable value to be
exchanged by the Secretary of the Interior in return for these private
minerals.
In a sense, this bill has been centuries in the making. The Pueblo
Indians of Acoma have lived atop a mesa known as Sky City perhaps
longer than any other village in America. When the United States and
Mexico signed the Treaty of Guadalupe Hidalgo in 1848, the land claims
of the Acoma people, and others, were guaranteed to be respected.
Indeed, in 1858, Congress specifically recognized an Acoma land claim,
including Sky City.
However, at that time the lands below and south of the mesa were
not patented to the Pueblo of Acoma. Consequently, when the
transcontinental railroad land grants were being made, the St. Louis &
San Francisco Railway Company received title to alternate sections of
public land, some of which lands were subsequently included within the
boundaries of the Acoma Indian Reservation as set in 1928. The United
States purchased the surface estate of these sections from the
successor in interest to the railroad grant lands, but the mineral
rights, together with right of access to the private minerals, was
reserved, creating today's split-estate posture.
I wish to thank Joe Skeen for attempting to correct what has become
an untenable situation. The Acoma people revere the area below Sky City
mesa which lies within their reservation and would certainly oppose
exercise of the private mineral rights there. Yet, the NZ Corporation
has a legitimate right to explore and develop their reserved interests.
In a similar situation over a decade ago, the Department of the
Interior exchanged or purchased private minerals interests in the area
immediately west of the Acoma reservation which Congress placed into
the El Malpais National Monument.
Basically, the question now is this: if an exchange to acquire
private rights was deemed necessary to protect the scenic and historic
values for which a national monument was established, should we not
also allow the Acoma people to acquire the private mineral rights
within their reservation?
I want to thank our witnesses for coming today despite the terrible
circumstances under which our nation now finds itself. It would have
been quite easy to cancel this hearing and promise to hold it later
when our attention in Congress will be less diverted. But promises have
been made and broken with the Acoma for too long.
And, I'd like the terrorists responsible for Tuesday's carnage to
understand that I will do my best to execute my duties as Chairman of
this panel despite their heinous actions. I will recess this hearing,
if need be, to vote for emergency funding to aid in the disaster as
President Bush and Congress deem necessary and appropriate. Otherwise,
we must continue to do our jobs here in the Resources Committee and
attend to matters such as H.R. 1913.
I now turn to our Ranking Member, Mr. Kind, for any statement he
may have.
______
STATEMENT OF THE HONORABLE JOE SKEEN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Skeen. Thank you, Madam Chairman, Chairlady. I am not
going to change things around a lot. I want to extend my warm
regards to you for holding this hearing today, and I know how
busy the Committee has been working on your major energy bill
as well as countless other issues. The Acoma people who are
here today will also be expressing their appreciation to you. I
know late last year you made a commitment to work with me on
this bill, and now that we have had at least a partial team in
place at the Interior Department, and I think we can move
forward.
The Acoma Pueblo comprises some 380,000 acres located 56
miles west of Albuquerque. The legislation deals with
subsurface mineral rights of Acoma Pueblo trust lands. People
of Acoma Pueblo, like many other Native American tribes, have
sought to restore its reservation to its historic boundaries.
Over 6,000 Pueblo members live on and around the Acoma Mesa,
which was originally referred to as the "Sky City." The older
village lies 365 feet above the surrounding valley of the
sparse, dry farmland with its mixture of pinon and juniper
trees. It is thought to be one of the oldest continually
inhabited sites within the United States, first reported by
Fray Marcos de Niza in 1539--now, that is a long time ago--and
then visited by Francisco de Coronado's army in 1540.
In 1988, the Pueblo purchased a large ranch that adjoined
their reservation, and subsequently the Secretary of the
Interior took over 100,000 surface acres into trust for the
Pueblo, and it became a permanent part of the reservation.
When Acoma purchased the ranch, the subsurface mineral
rights were not part of the land transfer, and, as you know,
this is not an uncommon practice where only the surface estate
was sold from owner to owner. Much of this practice goes back
to the settling of the West when the government awarded
checkerboarded pieces of land to railroads in return for their
building lines across the Nation, and the railroads then sold
the land to finance their companies' activities, but kept the
subsurface mineral estate.
Under this legislation the current owner of the subsurface
estate would enter into an exchange agreement with the Bureau
of Land Management, BLM, for equal valued Federal lands and
rights. In return BLM would receive the subsurface rights
within the Pueblo boundaries, which would be placed into trust
by the Secretary of the Interior for the benefit of the Acoma
Pueblo unifying both the surface and subsurface estate.
This legislation amounts to a win-win for all of the
stakeholders involved. First, the Acoma Pueblo does not have to
worry about the subsurface mineral rights holder attempting to
exercise its rights. This legislation would give them the total
control over their lands that they need and deserve under the
trust responsibility of the United States. The current third-
party owner of the subsurface mineral estate is made whole
without having to exercise their rights and being placed in
conflict with the Acoma Pueblo. And, finally, the public wins
because excess Federal lands will go into the private sector
and will be returned to the tax rolls.
The Acoma people are part of a proud Pueblo which provides
New Mexico with a major portion of the rich cultural heritage
which makes my State the Land of Enchantment.
In closing, I ask the Committee to do the right thing and
to pass this legislation so that Acoma people can continue
their journey to greatness.
[The prepared statement of Mr. Skeen follows:]
Statement of Honorable Joe Skeen, a Representative in Congress from the
State of New Mexico
Madam Chairman, I want to extend my very warm regards to you for
holding this hearing today. I know how busy the committee has been
working on your major energy bill as well as countless other issues.
The Acoma people, who are here today will also be expressing their
appreciation to you. I know late last year you made a commitment to
work with me on this bill and now that we have at least a partial team
in place at the Interior Department I think we can move forward.
The Acoma Pueblo comprises some 380,000 acres located 56 miles west
of Albuquerque. The legislation deals with the sub-surface mineral
rights of Acoma Pueblo trust lands. The people of Acoma Pueblo, like
many Native American tribes, have sought to restore its reservation to
its historic boundaries. Over 6,000 Pueblo members live on and around
the Acoma Mesa which was originally referred to as ``Sky City''. The
older village lies 365 feet above the surrounding valley of sparse dry
farmland with its mixture of pinon and juniper. It is thought to be one
of the oldest continually inhabited sites in the United States, first
reported by Fray Marcos de Niza in 1539 and then visited by Francisco
de Coronado's army in 1540.
The Spanish made the original land grant to the Pueblo of Acoma on
September 20, 1689 and President Grant confirmed the grant by patent
issued on November 19th, 1877. In l988, the Pueblo purchased a large
ranch that adjoined their reservation and subsequently the Secretary of
the Interior took over 100,000 surface acres into trust for the Pueblo
and it became a permanent part of the reservation. This additional land
is necessary as the Pueblo grows and prospers because of new economic
activity.
When Acoma purchased the ranch the subsurface mineral rights were
not part of the land transfer. This is not an uncommon occurrence in
the West where only the surface estate is sold from owner to owner.
Much of this practice goes back to the settling of the West when the
federal government awarded checkerboarded pieces of land to railroads
in return for their building lines across the nation. The railroads
then sold the land off to finance their companies activities but kept
the subsurface mineral estate.
Under this legislation, the current owner of the subsurface estate
would enter into an exchange agreement with the Bureau of Land
Management (BLM) for equal valued federal lands and rights. In return
the BLM would receive the subsurface rights within the Pueblo
boundaries which would be placed into trust by the Secretary of the
Interior for the benefit of the Acoma Pueblo unifying both the surface
and subsurface estate.
This legislation amounts to a win-win for all of the stakeholders
involved. First, the Acoma Pueblo does not have to worry about the sub-
surface mineral rights holder attempting to exercise its rights. This
legislation gives them the total control over their lands that they
need and deserve under the trust responsibility of the United States.
The current third party owner of the sub-surface mineral estate is made
whole without having to exercise their rights and being placed in
conflict with the Acoma Pueblo. And finally the public wins because
excess federal lands will go into the private sector and will be
returned to the tax rolls.
Although the mineral rights in question are of an undetermined
value due to the fact that very little oil and gas exploration or any
other type of exploration has taken place on these lands. Total control
over their land allows the Acoma people to engage in mineral
exploration if they deem it appropriate. Such exploration will not
occur without this legislation.
The Acoma people are part of a proud Pueblo which provides New
Mexico with a major portion of the rich cultural heritage which makes
my state the ``Land of Enchantment''. In closing I ask the committee to
do the right thing and pass this legislation so the Acoma people can
continue their journey to greatness.
______
Mrs. Cubin. I would like to place into the hearing record
testimony of Joe Sphar of the NZ Corporation. He was not able
to attend because of our current national situation.
Mrs. Cubin. Without objection, that will be so entered.
[The prepared statement of Mr. Sphar follows:]
Statement of Joe Dee Sphar, Director of Natural Resources, NZ
Corporation
INTRODUCTION.
Madame Chairwoman and Members of the Subcommittee on Energy and
Mineral Resources, my name is Joe Sphar. I am the Director of Natural
Resources for the NZ Corporation. Thank you for this opportunity to
testify on H.R. 1913. This legislation is very important to the NZ
Corporation which currently holds some 67,710 acres of mineral rights
within the Acoma Indian Reservation. These are rights originally
granted to NZ's predecessor company by the United States but which
cannot be developed without great conflict with a sovereign Indian
nation. H.R. 1913 provides a practical solution that addresses the
concerns and rights of NZ, as well as the concerns and rights of the
Pueblo of Acoma.
ORIGIN NZ'S SEVERED MINERAL ESTATE.
NZ Corporation (``NZ''), f.k.a. New Mexico and Arizona Land
Company, owns some 67,710 acres of mineral rights within the Acoma
Reservation in Cibola County, New Mexico. NZ is a publicly traded
company incorporated in the Territory of Arizona in 1908. Ultimately,
NZ's mineral title traces to a Federal Charter of 1866 to the Atlantic
& Pacific Railroad (Ch. 278, 14 Stat. 292) which provided a land grant
from the public domain as an inducement to build a railroad and
telegraph line along the 35th Parallel. Portions of this great
transcontinental rail line from the Rio Grande to the Colorado River
were subsequently built across what are now the states of New Mexico
and Arizona. Accordingly, NZ's parent corporation, the St. Louis & San
Francisco Railway Company, was granted some 1.2 million acres in fee,
including the subject acreage, for its part in the completed railroad
construction near Acoma. Title to this railroad mineral estate is well
established in law. (For a summary see Thomas E. Root, Railroad Land
Grants from Canals to Transcontinentals, National Resources Law
Section, American Bar Association Monograph Series, 1988).
During the early part of the 20th Century, a more socially
sensitive and better informed Federal Government recognized the Acoma's
traditional use and aboriginal occupancy of a much wider area in what
is now Cibola County, New Mexico. However, much of this area had
already been taken out of public domain status and deeded to the
railroad parent of New Mexico and Arizona Land Company. In 1936, the
Federal Government was able to purchase the conflicted lands from NZ.
However, the purchase for reasons not presently known to NZ did not
include the mineral rights, which were explicitly excluded along with
access rights for exploration and development of the reserved mineral
estate.
CONFLICTED RIGHTS.
Railroad land grants were made in a checkerboard pattern to insure
that the Government lands would appreciate along with the newly created
private railroad lands. Without passing judgement on the merits of the
original plan, a secondary result throughout the western United States
has been a management gridlock. Moreover, on a subsequently created
Indian Reservation, the question of Native American sovereignty is
brought to fore. From NZ' s view, a virtual taking resulted with the
creation of the Acoma Reservation. The BIA policy is to always defer to
Native American oversight. The inequity in this was acutely
demonstrated in the mid-1970s when an oil company (CITGO) attempted for
several years to explore at Acoma for oil and natural gas. The concept
of deep drilling into the Earth (with all that this portends for Acoma
spirituality) and the potential for desecration of secret religious
sites on the surface was basically foreign and frightening to the
religious leaders of Acoma society. The Acoma's refused all of Citgo's
overtures to allow access to the NZ minerals and or lease the Acoma
mineral estate checkerboarded with NZ's minerals. Then the Acomas
unsuccessfully sued NZ for the minerals. (Pueblo de Acoma v. New Mex. &
Az. Land Co., et al, U.S. District Court No. 82-155, JB, 1983). While
affirming its title, NZ's access to the mineral estate remains
effectively blocked by a wall of sovereignty. Yet, the Acoma people
lack full sovereignty over their aboriginal lands.
PETITION TO CORRECT THIS ERROR OF HISTORY.
Not long after the lawsuit ended, NZ and the Acomas agreed to work
together to redress their mutual problems. Clearly, their problems were
created by the Federal Government in conflicting land grants. NZ has
worked with four Governors of Acoma Pueblo on this topic over the
years. Under the active leadership of several Acoma Governors, the
Pueblo of Acoma is now petitioning the Congress to correct this error
of history and make their aboriginal lands whole. Whether this movement
is driven by desire for future mineral development, to attain final
security for the tradition places and sacred sites or simply as a
matter of justice is not known to NZ. One can reasonably assume all
three motivations.
VALUATION OF THE MINERAL ESTATE.
Internal valuations of the mineral estate range from a minimum of
$15 per acre to $25 per acre. This appraisal is based largely upon
comparable Company dispositions of large and small mineral parcels in
New Mexico and Arizona. It is also cognizant of the regionally better
geologic prospects for petroleum on the subject mineral estate. The
Company's extensive wildcat drilling on the Sierra Lucero to the east
has proven that oil and gas is present in the area and may have been
trapped in economic accumulations in superior reservoir rocks on the
structurally higher flank of the Zuni Mountains as represented in large
portions of the topic Acoma minerals.
Even in the absence of producing or defined mineral deposits,
mineral rights are valuable and valued for their potential to create
future wealth. This potential is commonly marketable even before
discovery as mineral explorers typically pay bonuses and other
leasehold payments to mineral right owners. This opportunity has been
basically denied to both NZ and the Acoma because of the inherent
conflicts of split estate ownership on lands in reservations status
(basically beyond the reach of Federal Courts). The potential for
future income, both leasehold and actual (royalty income, for example)
may be considered a speculative value residing in all mineral rights.
Moreover, mineral rights are recognized as a real property right and
the prospect of future exploration may engender a nuisance value from
the view of the surface estate owner. In the case at hand, the geology
is enhancing to the speculative value and the extraordinary religious
tie of the surface owner to the land makes the nuisance factor highly
salient. As to comparable sales, NZ has traded, sold or exchanged
nearly 200,000 acres of mineral rights with the Federal Government in
support of National Parks and Wilderness Areas. Prices ranged up to
$27.40 acre (see accompanying Chart hereafter).
Just over ten years ago and just west of the Acoma Reservation, NZ
relinquished some 119,000 acres to accommodate the El Malpais
wilderness. NZ accepted $10 per acre (1989-90 dollars) for these
minerals which are rather obviously of inferior petroleum potential. At
the same time and by reference to geologic variables, NZ received
$27.40 per acre for some 2240 mineral acres to accommodate the
expansion of the Chaco Canyon National Park. The difference here from
the $10 price for El Malpais was not so much the size of the
transaction as the recognizable better potential for petroleum
discovery on the Chaco minerals. Similarly, NZ received $15 per acre in
trade value from the Government for its 57,000 acres of checkerboard
minerals in Mohave County, Arizona in 1987. The price here was partly
determined by the regional potential for gold discovery (speculative
value).
Finally, NZ has for many years running been routinely selling
mineral rights to its 40 acre recreational lot buyers for $25 per acre.
A large number of such sales have been generated at this price, whether
motivated by speculation or nuisance is not certain. Just last year, NZ
sold one section (640 acres) in Cibola County for $30 per acre to a
company hoping to site a business there.
Thus, when looking at either the speculative value or the real
property, nuisance value the Company concludes that the mineral value
for the 67,710 acres of fee minerals ranges from $15-25 per acre, or
from a minimum of $1 million to $1.7 million. NZ would expect and
presumably accept an independent mineral appraisal. Commercial
appraisers have approximated the cost of such appraisal at $25,000. NZ
would accept an equal value of BLM land from their excess lands list in
the Cibola County or even elsewhere in New Mexico
[GRAPHIC] [TIFF OMITTED] T5128.005
CONCLUSION.
In the interests of equity and fairness, to both NZ and Acoma, I
strongly urge this Committee to support passage of H.R. 1913. Thank you
for this opportunity to testify on this important legislation.
______
Mrs. Cubin. And I would like to apologize to the Acoma
people that are here today for my mispronunciation.
Mr. Skeen. You are doing very well. You should have heard
us when we started out with this.
Mrs. Cubin. Well, it is good to have you here, and I
appreciate, Joe, your bringing this issue forward again. We did
start talking about it last year, and I am sure that we will be
able to move this legislation forward as soon as possible.
Mr. Skeen. You are a very decent lady, and I appreciate it
very much.
Mrs. Cubin. Thank you very much. I don't have any
questions, and I assume you have finished with everything you
want to say.
Mr. Skeen. I will always find a place where I have
something to say and then don't overdo it.
Mrs. Cubin. As my mother always said, when you have got
the votes, shut up; right?
Mr. Skeen. That is exactly right. Thank you so much.
Mrs. Cubin. Thank you, Mr. Skeen.
The Chair now would like to call panel two to come forward
to the table. The Honorable Cyrus J. Chino, Governor of the
Acoma Pueblo of New Mexico; and the Honorable Neal A. McCaleb,
Assistant Secretary of the Interior for Indian Affairs.
Mrs. Cubin. The Chair now recognizes Governor Cyrus Chino
to testify for 5 minutes. The timing light should be on the
table and will indicate when your time has concluded. That
yellow light means there is 60 seconds left. So, Governor
Chino, if you would like to begin.
STATEMENT OF CYRUS J. CHINO, GOVERNOR OF THE ACOMA PUEBLO, NEW
MEXICO
Mr. Chino. Good afternoon and thank you, Madam Chairwoman
and members of the Subcommittee on Energy and Mineral
Resources. My name is Cyrus J. Chino. I am the Governor of the
Pueblo of Acoma. On behalf of the Pueblo of Acoma, I thank you
for this opportunity to testify in support of H.R. 1913. I am
accompanied by council member Petuuche Gilbert, who is also the
tribal's realty officer.
Before I continue, I would like to express on behalf of the
people and government of the Pueblo of Acoma our great sorrow
at the tragic events of this last week. We are praying for the
victims, their families, and friends.
Acoma is an ancient and traditional people. We have
occupied our lands and our old village, Acoma Sky City, for
over a thousand years and still speak our native language and
practice our traditional religion. We know from long experience
that in order to preserve our culture, we must preserve our
land and sovereignty.
I come before you here today to ask you that you support
the passage of H.R. 1913. H.R. 1913 will correct an historic
wrong against Acoma caused by the Federal Government, protect
our sovereign and protect our sacred land and sacred sites from
inappropriate development.
Today the NZ Corporation holds 67,710 acres of mineral
rights within the Acoma Indian Reservation, including mineral
rights near our ancient and central village, Acoma Sky City.
The map here is included in the testified statement that we
are turning in, and there is a map there. In the dark shaded
area are those areas that we are alluding to, that is, south of
Acoma Sky City village on top of the mesa.
NZ serves a right of access to a large portion of the Acoma
Indian Reservation, including areas of great spiritual
importance and sensitivity. Acoma would oppose any such efforts
by NZ, but in the end it might be a Federal court and not Acoma
itself which would decide what would happen on Acoma land.
Acoma and NZ have come together to support this important
legislation.
Let me briefly describe to you how Acoma lost its land. The
Spanish and the Mexican Governments, prior to New Mexico's
addition to the Union, fully recognized Acoma's territory. The
United States promised in the Treaty of Guadalupe Hidalgo in
1848 to protect our Pueblo land, but when the transcontinental
railroad was built, the United States gave a large portion of
the Acoma's land to the railroad. The United States partially
corrected this injustice by purchasing the surface rights to
much of this land from NZ Corporation, but the subsurface still
belongs to the NZ Corporation.
Benefits of H.R. 1913. H.R. 1913 will protect Acoma's
sacred site by unifying the surface and subsurface estates at
Acoma. The threat that Acoma sacred sites would be disturbed or
destroyed would be eliminated. We can protect Mother Earth on
our reservation as we know best how to do.
H.R. 1913 will restore Acoma's sovereignty over its own
land.
H.R. 1913 will right the historic wrong of the taking of
this land from Acoma and thus fulfill the Federal Government's
trust responsibility to Acoma.
H.R. 1913 will also protect the interests of NZ
Corporation, which feels that it has essentially lost the value
of its land holdings underneath the Acoma Indian Reservation.
H.R. 1913 will eliminate the possibility of costly
litigation, including litigation NZ against the United States
for its fifth amendment taking of the value of its land and a
result of the Federal Government recognizing an indignation to
Acoma on those lands. For example, in establishing the El
Malpais National Monument which lies immediately adjacent to
Acoma, Congress specifically authorized the exchange of Federal
and private mineral rights interests, which principally
included NZ Corporation. In 1994, Assistant Secretary of Indian
Affairs concluded that the only way to secure the land for
Acoma was through a three-party land exchange involving the
BLM, Bureau of Land Management. However, BLM has taken no
action; so we need Congress to pass H.R. 1913 to get this done.
Conclusion. In the event the NZ Corporation believed that
its right has been unduly encumbered while Acoma believes that
its rights have been trampled upon, H.R. 1913 is a win-win
solution to this problem. I urge this Committee to give its
full support to passage of this important bill. Thank you for
this opportunity to testify on this matter.
Mrs. Cubin. Thank you, Governor.
[The prepared statement of Mr. Chino follows:]
Statement of Cyrus J. Chino, Governor, Pueblo of Acoma
I. INTRODUCTION
Madame Chairwoman and Members of the Subcommittee on Energy and
Mineral Resources, my name is Cyrus J. Chino. I am the Governor of the
Pueblo of Acoma. On behalf of the Pueblo of Acoma, I thank you for this
opportunity to testify in support of H.R. 1913.
The Pueblo of Acoma is a federally recognized Indian tribe located
an hour's drive west of Albuquerque, New Mexico. We are a traditional
people. We have occupied our lands and our old village, Acoma Sky City,
for over a thousand years. In fact, Acoma Sky City is the oldest
continuously inhabited city in the United States. Despite 500 years of
contact with European culture, the people of Acoma have retained their
language, culture and spiritual traditions.
I come before you today to ask that you support passage of H.R.
1913. This legislation will redress an historical injustice against
Acoma. It will also enable Acoma to protect fully our sacred heritage
and to regulate appropriately development on our reservation lands.
Finally, it will address the concerns of the NZ Corporation (formerly
known as New Mexico and Arizona Land Company) which currently owns
large portions of the subsurface estate at Acoma, including areas of
great spiritual importance and sensitivity to Acoma. See Acoma Indian
Reservation Map, Attachment A. H.R. 1913 is consistent with the Federal
trust responsibility to American Indians as well as Congressional
policy in the area of Indian lands management.
Specifically, H.R. 1913 would direct the Secretary of the Interior:
(1) to determine the extent and value of the nontribal ownership of
subsurface rights within the boundary of the Acoma Indian Reservation;
(2) to negotiate, upon completion of that valuation, an exchange with
any willing nontribal owners of such rights for rights in Federal land
within New Mexico identified by the Bureau of Land Management as
available for disposal and of approximately the same value; and (3) to
hold the acquired interests in land within the boundaries of the Acoma
Indian Reservation in trust for the Pueblo of Acoma.
II. HOW ACOMA LOST ITS ANCESTRAL LAND IN THE FIRST PLACE
Prior to 1848, the Spanish and Mexican governments controlled the
Southwest and recognized Acoma's aboriginal area as Acoma's territory,
protecting Acoma's rights throughout that area. In 1848, when the
United States acquired New Mexico from Mexico it promised, in
accordance with the Treaty of Guadalupe Hidalgo (1848), that the Pueblo
Indian tribes and other property holders would by ``respected in their
property.'' Congress also specifically recognized certain Acoma land
claims by the Act of December 22, 1858, 11 Stat. 374. which federal
courts have subsequently held did not limit Acoma's title to only those
lands recognized therein.
Notwithstanding these Congressional actions, in 1866 Congress
issued a Federal Charter to the Atlantic & Pacific Railroad that
provided for a land grant out of the public domain to support the
construction of a transcontinental rail and telegraph line. Act of July
27, 1866, 14 Stat. 292. NZ's parent company, the St. Louis & San
Francisco Railway Company received 1.2 million acres in fee, including
large parts of what is now the Acoma Indian Reservation. Under the law,
unextinguished Indian title lands could not be granted without
``voluntary session'' by the Tribe. However, U.S. land surveyors, in
1876 and, again in 1877, through mistake or bad intent, designated
large amounts of tribal land, including land immediately below the mesa
of Acoma Sky City, as within the public domain. This designation meant
that the land was eligible for grant to the railroad company without
first securing Acoma's permission.
In subsequent years, Congress recognized Acoma's larger land claims
and acted to establish formally the Acoma Indian Reservation under
Federal law. Part of the Acoma Indian Reservation was defined by the
Act of May 23, 1928 (45 Stat.717). Subsequently, the United States
purchased substantial land holdings from NZ, and took much of that land
into trust for Acoma. However, for reasons unknown to Acoma, NZ was
allowed to retain its subsurface rights on these lands.
As a result of this history, NZ holds 67,710 acres of subsurface
rights within the Acoma Indian Reservation, including subsurface rights
near Acoma Sky City.
III. NZ CLAIMS ACCESS RIGHTS TO MUCH OF THE ACOMA RESERVATION
When the United States acquired the surface rights from NZ, it
provided the following exception for the subsurface rights:
L``...Excepting and Reserving to said party [NZ] of the first
part and its successors and assigns, all oil, gas and mineral
rights underlying or appurtenant to said lands, together with
the right of ingress and egress and of prospecting, developing
and operating said lands therefore and removing the same
therefrom, subject to such reasonable conditions respecting
ingress and egress and the use of the surface of said lands as
may be deemed necessary by the Secretary of the Interior.''
Based on this language, NZ asserts a right of access to large
portions of the Acoma Indian Reservation, including areas of great
spiritual sensitivity. While Acoma would oppose any such efforts by NZ,
in the end it might be a Federal court, and not Acoma itself, which
would decide what would happen on Acoma land.
Needless to say, this legal situation, arising initially out of
Federal government action, puts Acoma and NZ into conflicting
positions. NZ has a good faith legal claim to develop its subsurface
assets; at the same time such development would likely affect Acoma
sacred properties and would involve subsurface assets that rightfully
belong to Acoma in the first place. NZ believes that its rights have
been unduly encumbered; while Acoma believes that its rights have been
trampled upon. Both parties have come together to support a win-win
solution H.R. 1913. This solution, of necessity, involves the party
originally responsible for the loss of Acoma land--the Federal
government.
IV. BENEFITS OF H.R. 1913.
H.R. 1913 will address, through a voluntary land exchange, a number
of issues, including:
<bullet> LProtection of Acoma sacred sites. By unifying the surface
and sub-surface estate at Acoma, the threat that Acoma sacred sites
could be disturbed or destroyed by mineral exploration and extraction
activity would be eliminated. The threat also to certain sacred
``viewscapes'', especially from Acoma Sky City, and to certain
pilgrimage routes, would also be removed. Essentially, in a manner
consistent with the Federal trust responsibility, Acoma's sovereignty
within the boundaries of the Acoma Reservation would be more fully
recognized and strengthened.
<bullet> LRighting of an historic wrong through the restoration of
resources properly belonging to Acoma. The consolidation of Acoma's
surface and subsurface estate would correct the historic injustice of
the loss of these lands that had belonged to Acoma for at least a
thousand years before their taking by the United States. Passage of
H.R. 1913 would be an example of the Congress living up to the Federal
trust responsibility in the best possible way.
<bullet> LProtection of the interests of the private holder of the
subsurface. NZ has expressed its belief that, through Federal action,
it has essentially lost the value of these land holdings, thus raising
the issue of a Fifth Amendment taking. H.R. 1913 would protect the
economic interests of NZ in accessing the value of the land granted it
by the United States by allowing NZ to get disposable BLM land of
equivalent value elsewhere.
<bullet> LMaintenance of the same value of land under Federal legal
title. Since H.R. 1913 provides that the land exchanged from the BLM
disposable land list would be of the same value as the subsurface
acquired in trust by the United States for Acoma, there is no net loss
of land value under Federal legal title.
<bullet> LElimination of an unnecessary obstacle to economic
development for both NZ and Acoma. For NZ, the lost value of the
subsurface at Acoma will be freed up for other economic activity.
Although Acoma has no plans to develop its subsurface resources, by
consolidating those resources into the Acoma reservation Acoma can
better regulate such development if, at some future date, it would be
appropriate and not destructive.
<bullet> LElimination of the possibility of costly litigation.
Should NZ seek to develop its subsurface rights, there would likely be
extensive ligitation, not only between Acoma and NZ, but also including
the United States. H.R. 1913 would eliminate the risk of such
litigation by establishing a voluntary land exchange process for
resolving this conflict.
V. OTHER CONGRESSIONALLY AUTHORIZED LAND AND MINERAL EXCHANGES
Under a wide variety of circumstances, the U.S. Congress has
provided for land and mineral exchanges. In the Indian area, Congress
has repeatedly passed legislation providing for exchanges and purchases
of land interests for the benefit of Indian tribes in a manner similar
to H.R. 1913. Set forth below are brief descriptions of examples of
relevant Congressionally authorized land exchanges.
<bullet> LEl Malpais National Monument and National Conservation
Area. In establishing the El Malpais National Monument, which lies
immediately adjacent to Acoma, Congress specifically authorized the
exchange of Federal and private mineral interests. 16 U.S.C. Section
460uu-44. Subsequently, exchanges and payments were made at El Malpais
National Monument which included NZ holdings. In the same legislation,
Congress also authorized land exchanges with the Pueblo of Acoma. 16
U.S.C. Section 460uu-45.
<bullet> L107th Congress--Public Law 107-28. Directs the Secretary
of the Interior, acting through the Director of the Bureau of Land
Management, to convey to the city of Carson City, Nevada, without
consideration, all right, title, and interest of the United States to
certain BLM property.
<bullet> LUmatilla Indian Reservation Consolidation. Congress
specifically authorized the Secretary of the Interior, for the purpose
of effecting land consolidations between Indians and non-Indians within
the reservation, to acquire by purchase, exchange or relinquishment any
interests in land within the Umatilla Indian Reservation. 25 U.S.C.
Section 463e.
<bullet> LNavajo-Hopi Land Settlement Act Land Exchanges. The
Navajo-Hopi Land Settlement Act authorized the Secretary to transfer
certain land from the Bureau of Land Management to the Navajo Nation
and, in order to facilitate such transfer, to exchange such lands for
State or private lands of equal value or, if they are not equal, to
equalize the values through the payment of money. 25 U.S.C. Section
640d-10.
<bullet> LGeneral Law Providing for Exchanges of Private Lands
included in Indian reservations for other lands. 43 U.S.C. Section 149
specifically authorizes public-private land exchanges for Indian
reservations established by executive order: ``Any private land over
which an Indian reservation has been extended by Exec-utive order, may
be exchanged at the discretion of the Secretary of the Interior for
vacant, nonmineral, nontimbered, surveyed public lands of equal area
and value situated in the same State or Territory.''
<bullet> LRhode Island Indian Claims Settlement Act. Under this
Act, Congress authorized the Secretary of the Interior to purchase
``private settlement lands'' as part of a settlement of aboriginal land
claims and other matters. 25 U.S.C. Section 1707.
<bullet> LRattlesnake National Recreational Area. In establishing
the Rattlesnake National Recreational Area, Congress authorized the
Secretary of the Interior to acquire, by exchange, gift or purchase
``non-Federal lands, interests, or any other property. . . .'' 16
U.S.C. Section ll-3(a). The Secretary of the Interior is even
authorized, in consultation with the Secretary of Agriculture, to make
exchanges with the owners of private lands or interests in exchange for
bidding rights for competitive coal lease sales. 16 U.S.C. Section 460
ll-3(b)-(e)
<bullet> LChickasaw National Recreational Area. Congress authorized
the Secretary of the Interior to acquire land outside the boundary of
the recreation area and exchange it for non-Federal lands within the
boundaries. 16 U.S.C. Section 460hh-1.
<bullet> LArapahoe National Recreation Area. Congress authorized
the Secretary of the Interior to acquire by exchange any non-Federal
land, or interests therein, located within the Arapaho National
Recreation Area. 16 U.S.C. Section 460jj-1(c).
<bullet> LChattahoochee River National Recreation Area. Congress
authorized the Secretary of the Interior to acquire by exchange land
within the recreation area. 16 U.S.C. Section 460ii-1(a).
VI. ACOMA EFFORTS TO UNIFY ITS SURFACE AND SUBSURFACE ESTATE
Since 1990, the Pueblo of Acoma and NZ have worked to resolve this
issue. In 1990, the Acoma Tribal Council passed a resolution
authorizing the tribal administration to negotiate with NZ and U.S.
Department of Interior to acquire mineral rights within the
reservation. Since then, each tribal administration has sought to
complete such a negotiation.
Notably, by letter dated March 3, 1994, Ada E. Deer, then-Assistant
Secretary of Indian Affairs, wrote the Acoma Governor and stated:
``[T]he only available way to secure an outright acquisition would be
through the three party land exchange transaction between the BLM, the
NZ Company and the Pueblo [of Acoma]. We will be making a written
request to the Secretary of the Interior to direct the BLM to begin
entering into negotiations regarding the three party land exchange
transaction.'' See Attachment B.
Although officials at the Bureau of Land Management have indicated
general support for the idea of transfer of rights, they have indicated
to Acoma that an exchange would only be carried out if directed and
authorized by the Congress. For this reason, Acoma now comes before the
Congress asking that it pass H.R. 1913 and make the Acoma Reservation
whole.
VII. CONCLUSION
H.R. 1913 is win-win legislation that addresses and corrects an
historic wrong against the Pueblo of Acoma. I urge this Committee to
give its full support to passage of this important bill. Thank you for
this opportunity to testify on this matter.
______
[Attachments to Mr. Chino's statement follow:]
[GRAPHIC] [TIFF OMITTED] T5128.002
[GRAPHIC] [TIFF OMITTED] T5128.003
[GRAPHIC] [TIFF OMITTED] T5128.004
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Mrs. Cubin. The Chair now wishes to recognize the Assistant
Secretary McCaleb to testify for 5 minutes.
STATEMENT OF NEAL A. McCALEB, ASSISTANT SECRETARY, INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. McCaleb. Thank you, Madam Chairman and members of the
Committee. Thank you for the opportunity to provide the
administration's views on H.R. 1913, a bill which directs the
Secretary to conduct a valuation and exchange of nontribal
subsurface rights within the boundaries of the Acoma Pueblo
Indian Reservation. The Department enthusiastically supports
the goal of transferring the private mineral estate to the
Acoma Pueblo.
Having said that, portions of our testimony suggest
potential amendments to provide other methods to either
facilitate or expedite this transfer in addition to a swap.
That is not intended in any way to suggest that these are
superior or even potentially as good, but simply to facilitate
the potential transfer and provide alternative methods. These
methods include the direct purchase of the mineral estate using
transferrable bidding credits in addition to the land exchange
option provided in the bill. We also recommend amendments to
provide for a cost-sharing agreement if either an exchange or
purchase takes place and to allow additional time to conduct
the exchange.
I am not going to make a redundant statement. The history
of this issue has already been more than adequately covered by
Congressman Skeen and Governor Chino. I would like to point out
that an historical background is in my submitted testimony. The
nontribal interest ownership of the mineral estate within the
boundaries of the Acoma Pueblo Indian Reservation is
approximately 68,000 acres. The Bureau of Land Management (BLM)
currently estimates that the mineral estate consists primarily
of sand and gravel, but there may also be the potential for oil
and gas in the area. The private mineral owners have estimated
costs of an outright purchase, in lieu of an exchange, of their
mineral estate within the reservation to be between a million
and $1.7 million. It should be emphasized that no federally
approved appraisal has been completed for the mineral estate
interest, and it is possible that the actual value is less than
their estimate.
The valuation and the exchange provided for in H.R. 1913
would result in considerable workload and costs for the BLM
necessitated by the Federal Land Policy and Management Act, the
National Environmental Policy Act, and other statutory and
regulatory requirements. Such steps would include, but would
not be limited to, appraisals, environmental reviews and
clearances, public notices, coordination with other landowners,
and adjudication procedures. The Bureau of Land Management land
exchange results in costs of approximately $1 million for these
kinds of activities, an amount close to the private mineral
owners' estimate of the value for a direct purchase of their
mineral estate within the reservation.
At this time it is also unclear as to whether or not an
agreement on value can be reached between the mineral owner and
the Secretary of Interior.
In the interest of time, Madam Chairman, I won't repeat
what is in the printed testimony that elaborates on these
points, but would be happy to answer any questions.
Mrs. Cubin. Okay. Thank you very much, Mr. Secretary.
[The prepared statement of Mr. McCaleb follows:]
Statement of Neal McCaleb, Assistant Secretary - Indian Affairs, U.S.
Department of the Interior
Madam Chairman and Members of the Committee, thank you for the
opportunity to provide the Administration's views of H.R. 1913, a bill
which directs the Secretary of the Interior to conduct a valuation and
exchange of non-tribal subsurface rights within the boundaries of the
Acoma Pueblo Indian Reservation.
The Department supports the goal of transferring the private
mineral estate to the Acoma Pueblo. However, we suggest that the bill
be amended to allow the Secretary to consider acquisition of the
mineral estate through a direct purchase or by using transferable
bidding credits (interest free), in addition to the land exchange
option provided in the bill. We also recommend amendments to provide
for a cost-sharing arrangement if either an exchange or purchase takes
place; and to allow additional time to conduct an exchange.
Background
When the United States created the Acoma Pueblo Reservation,
minerals within the reservation lands were already in private
ownership. They were never transferred to the Acoma Pueblo. The Acoma
Pueblo has stated that any desire by the owners of the mineral estate
to begin exploration for minerals on the reservation would disrupt its
traditional way of life. Leaders of the Acoma Pueblo have long
expressed their desire to have their land rights intact and that
includes both the surface and mineral estate.
The owner of the mineral estate has informed the Acoma Pueblo that
a trade for land of equal value would be acceptable. An official
appraisal of the mineral estate does not currently exist, and we have
no knowledge of any such production on the private mineral estate on
the Acoma Pueblo lands. The Bureau of Land Management (BLM) was
approached by the Acoma Pueblo about a year ago to use its exchange
process to acquire the non-tribal mineral interests within the Acoma
Pueblo Reservation land. The BLM has responded to these requests by
suggesting that the Acoma Pueblo seek Congressional authority for such
a transaction.
Current Estimated Value
The non-tribal interest ownership of the mineral estate within the
boundaries of the Acoma Pueblo Indian Reservation is approximately
68,000 acres. The BLM currently estimates that the mineral estate
consists primarily of sand and gravel, but that there may be potential
for oil and gas in the area. The private mineral owners have estimated
costs of an outright purchase in lieu of an exchange of their mineral
estate within the Reservation to be between $1 million and $1.7
million. It should be emphasized that no federally-approved appraisal
has been completed for the mineral estate interests and it is possible
that the actual value is less than this estimate.
BLM Land Exchange Process /Costs
The valuation and exchange provided for in H.R. 1913 would result
in a considerable workload and costs for the BLM. As with any land
exchange, the BLM must follow the processing and public involvement
procedures as required by the Federal Land Policy and Management Act,
the National Environmental Policy Act and other statutory and
regulatory requirements. Such steps would include, but would not be
limited to, appraisals, environmental reviews and clearances, public
notices, coordination with other landowners, and adjudication
procedures. The typical BLM land exchange results in costs of
approximately $1 million an amount close to the private mineral owners'
estimate of value for a direct purchase of their mineral estate within
the Reservation. At this time, it is also unclear whether or not an
agreement on value can be reached between the mineral estate owner and
the Secretary of the Interior.
Proposed Amendments to H.R. 1913
The Department would like to work with the Committee to address the
following concerns with the legislation as introduced.
<bullet> LPurchase Option-Given that the anticipated cost to
process this exchange may exceed the value of the property to be
acquired, the Department recommends amending the bill to provide the
Secretary with the option to acquire the interests in the property
through a direct cash purchase or through the granting of future
federal lease bidding credits (interest free) in the amount of the
value of the acquired mineral estate. This option would be in addition
to consideration of the exchange option already provided for in the
legislation. Under an outright purchase, or through the future federal
lease or permit bidding credits (interest free), an exchange would not
be necessary and there would be no disposal of federal estate. This
action would take less time and potentially result in considerable net
savings to the Federal Government.
<bullet> LCost-Share-The BLM and a land exchange proponent
typically share in the costs of processing a land exchange. Currently,
the introduced legislation does not provide for such a cost-sharing
arrangement if an exchange is the final transaction that takes place.
Under the introduced bill, the Secretary is required to negotiate and
complete the land exchange transaction and incur all of the costs for
such a transaction. The Department recommends that the bill be amended
to provide for such a cost-sharing arrangement with the exchange
proponent, the New Mexico and Arizona Land Company. We also recommend
that it include provisions for the sharing of costs for the appraisal
of the mineral estate.
<bullet> LTimetableIn addition, the introduced legislation does not
provide a sufficient timetable for a land exchange transaction to take
place. As land exchanges can sometimes take longer than two years to
complete, the Department would recommend that the bill be amended to
provide the Department with at least three years to complete any
exchange.
Closing
Thank you Madam Chairman. I would be happy to answer any questions
that you or other committee members may have.
______
Mrs. Cubin. We have a vote going on right now, and I think
I will go over and vote very quickly and come right back for a
round of questioning. We just have one vote; so we are recessed
for about 10 minutes.
[Recess.]
Mrs. Cubin. The Subcommittee will please come to order. I
am just going to ask a couple of questions, and then we do have
some questions that we would like to submit to you for your
response in writing. I am supposed to go to the Pentagon at 3
o'clock, and so that does cut down on the amount of time that
we have for questions, but I did want to ask Governor Chino, I
see that Ada Deere requested the Secretary of Interior Bruce
Babbitt to direct the BLM to conduct this exchange.
Do you know what happened to that request?
Mr. Chino. In answer I am going to yield to my realty
officer, Mr. Petuuche Gilbert.
Mrs. Cubin. Would you spell your name for the record,
please, sir.
Mr. Gilbert. Yes. My first name is Petuuche, and that is
spelled P-E-T-U-U-C-H-E, and Gilbert as it is normally spelled.
I didn't hear entirely the full question. If possible,
would you repeat it for me?
Mrs. Cubin. Yes. Ada Deere had requested that the previous
Secretary of Interior Bruce Babbitt directed BLM to conduct
this exchange. Do you know what happened to that request?
Mr. Gilbert. Nothing. This is a long-standing problem that
the Pueblo of Acoma has been working on, and over the years we
may have had these kinds of requests, and that was one of the
requests to the BIA and the Secretary of Interior at that time
to assist us on it. There was no action taken.
Mrs. Cubin. I certainly sympathize with the need to
eliminate the split estate and have the Acoma the right to
preserve the land that is sacred to them and make sure that no
exploration takes place there.
I don't care whether Mr. Gilbert or you, Governor Chino,
answer this question. Would you give us some insight as to why
you think the BLM and the Department of Interior have been
reluctant to conduct this proposed exchange unless it is
directed by Congress, or what are your opinions for the reasons
for their reluctance?
Mr. Chino. I would answer in this respect. There has not
been any move in addressing this by the Federal Government,
and, of course, there are so many years that we have come about
addressing this, so in the same essence, the Federal Government
did never make a move on it for some reasons that I am not
cognizant of, and it was never communicated to us, and with Ada
Deere's task, I have never seen anything come through in that
respect.
Mrs. Cubin. Assistant Secretary McCaleb, can you describe
for me--well, first of all, I think in your testimony you said
that it cost $1 million to $1.7 million for the BLM to do an
exchange. I assume that is in New Mexico; is that correct?
Mr. McCaleb. It actually is estimated by the BLM to cost $1
million; 1 to 1.7 was the estimated value of the mineral
interests of NZ, but the $1 million is from BLM's experience on
previous land exchanges.
Mrs. Cubin. So that is countrywide, not necessarily New
Mexico?
Mr. McCaleb. Yes.
Mrs. Cubin. Mr. Sphar's testimony reads that a formal
appraisal of the private mineral estate of the Acoma
Reservation would be about $25,000, and I would think a similar
amount would be sufficient to value BLM lands that were
selected for the exchange for a total of about $50,000. So how
do you justify the statement that the total cost would be about
a million dollars?
Mr. McCaleb. Well, a big part of the cost is because we
don't know what land is going to be exchanged at this point,
and then a deeper study would follow. We might get by with an
environmental assessment, which would be substantially less
than a full-blown environmental impact statement. But without
knowing the land that is involved, it is impossible to tell
that, but we would have to satisfy the deeper requirement of
the Federal Land Policy and Management Act.
Mrs. Cubin. Well, certainly. That goes without saying.
I think in your testimony you said it takes 3 years to
complete a land exchange. And why would that be when an
environmental assessment is required, not an environmental
impact statement? I wouldn't think that this exchange would be
controversial; so why would an EIS even be required?
Mr. McCaleb. First of all, it is not controversial.
Mrs. Cubin. Yes. So--.
Mr. McCaleb. But the need for a process under the Federal
Land Policy and Management Act, a policy decision is still
required.
Mrs. Cubin. Sure, but--.
Mr. McCaleb. The need for a policy decision would require
public hearings.
Mrs. Cubin. Wouldn't you agree with me that when a project
or proposed exchange is controversial, that it is much more
expensive in terms of public scoping, in terms of studies,
because people are demanding more and more information? If this
is not controversial, I don't understand the reluctance, the
apparent reluctance, of the Department of Interior to just get
going on this.
Now, I am certainly happy to do everything I can to get
H.R. 1913 passed, but I really think it is nonsense. I think
this is something that the Department should just be doing, and
really it is kind of shameful that this has been going on so
long and nothing has been done that these people have to end up
coming here.
So as I said, I do have to go to the Pentagon, but I will
submit some more questions both to you, Assistant Secretary,
and to Mr. Sphar of the NZ Corporation, and I appreciate your
answers, Mr. Gilbert and Governor, and we will hold the record
open for your response to those questions.
[Response to questions submitted for the record follows:]
1. Response from Hon. Joe Skeen.
2. Response from Assistant Secretary Neal McCaleb
3. Response from Governor Cyrus J. Chino
4. Response from Joe D. Sphar
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Questions from Representative Ron Kind for Representative Joe Skeen:
(1) LAccording to their written statement, the
Administration supports the goal of transferring the private
mineral estate to the Acoma Pueblo. However, they suggest that
the bill be amended to allow the Secretary to consider
acquisition of the mineral estate through a direct purchase or
by using transferable, interest free bidding credits, in
addition to the land exchange option provided in the bill. What
are your thoughts on this recommendation?
(2) LThe Administration also recommends amendments to
provide for a cost-sharing arrangement if either an exchange or
purchase takes place; and to allow additional time to conduct
an exchange. What are your thoughts on these suggestions?
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NEAL A. McCALEB - ASSISTANT SECRETARY, INDIAN AFFAIRS
RESPONSES TO FOLLOW-UP QUESTIONS TO THE DEPARTMENT OF THE INTERIOR
HEARING ON HR 1913, VALUATION & EXCHANGE OF NON-TRIBAL MINERAL RIGHTS
WITHIN THE ACOMA INDIAN RESERVATION IN NEW MEXICO HOUSE RESOURCES
SUBCOMMITTEE ON ENERGY AND MINERALS
Question 1. You state in your testimony that a typical BLM land
exchange costs about $1 million. How many exchanges does BLM New Mexico
complete in a typical year, who typically initiates the exchange, and
what is the purpose of the exchanges?
Answer: BLM New Mexico is currently working on 9 land exchanges
within the state. Each exchange may take 2 to 3 years to complete.
Three of these ongoing exchanges are with the State of New Mexico.
Typically, BLM New Mexico completes one or two exchanges per year;
however, no exchanges were completed in fiscal year 2001.
Private exchanges are typically initiated by the landowner; most of
the State exchanges are a joint effort between the BLM and the State of
New Mexico; and some exchanges have been mandated by legislation. Most
of the exchanges are for the purpose of acquiring private and State
lands within Wilderness Study Areas and other special management areas,
or in order to enhance BLM management of sensitive resources. In
addition, one of the State exchanges currently being processed is for
the purpose of acquiring State land within the Federal Law Enforcement
Training Center at Artesia, New Mexico.
Question 2. Why does it take three years to complete a land
exchange, especially when an environmental assessment, not an EIS is
prepared? I wouldn't think that this exchange would be controversial,
do you?
Answer: A land exchange is one of the more complex land
transactions that is conducted by the BLM, since it involves both the
disposal of federal land and the acquisition of non-federal land. The
BLM must follow the processing and public involvement procedures
required by the Federal Land Policy and Management Act (FLPMA), the
National Environmental Policy Act (NEPA), and other statutory and
regulatory requirements. Such steps include, but are not limited to,
land appraisals, environmental reviews and clearances, State Historic
Preservation Office consultation for cultural resources, Fish and
Wildlife Service consultation for threatened and endangered species,
public notices, removal of title encumbrances and mining claims,
possible cadastral surveys of property boundaries, coordination with
adjacent landowners and existing authorized users, adjudication
procedures, and potential protests and appeals. It is not known at this
time what level of NEPA analysis would be required for this exchange,
since the specific Federal lands involved in the exchange have not been
identified and the public scoping process has not been initiated. Many
land exchanges are controversial. The level of controversy for this
exchange can only be determined after the specific federal lands
involved in the exchange have been identified and the public
involvement process is initiated.
Question 3. Can you describe for the Subcommittee the process
whereby NZ Corporation's mineral rights were acquired in the El Malpais
National Monument to the west of the Acoma Reservation? How much was
the administrative cost to conclude that exchange or purchase? Who paid
those costs, the government or the corporation, or were they shared?
Answer: The BLM has completed 3 land exchanges totaling 95,566
acres and 3 direct purchases totaling 40,935 acres to acquire NZ
Corporation mineral rights in the El Malpais National Monument. The
costs for these transactions have varied depending upon the complexity
of the transaction. The administrative costs for the individual direct
purchases have generally been less than $25,000, in addition to the
purchase price of the mineral interests. These costs have generally
been paid by the BLM. However, the BLM processing costs for the
individual land exchange transactions are estimated to have exceeded
$300,000 per transaction. The NZ Corporation provided some additional
assistance and support for the land exchange transactions. However, due
to the age of these exchanges, we do not have immediate access to the
records and it is not known if the support was in services or in
reimbursement for costs. It should be noted that the previous
individual land exchange transactions have been for smaller acreage
than the 67,700-acre acquisition addressed by HR 1913, and therefore
the processing costs for these previous transactions may be less than
an estimated cost for the proposed Acoma acquisition.
Question 4. Mr. Sphar's testimony reads that a formal appraisal of
the private mineral estate in the Acoma Reservation would be
approximately $25,000. I would think that a similar amount would be
sufficient to value BLM lands selected for exchange, for a total of
about $50,000. How do you justify the statement that total costs would
be about $1 million?
Answer: As indicated previously, a land exchange is a complex land
transaction that involves both the disposal of federal land and the
acquisition of non-federal land. It is possible that the costs of an
appraisal for the federal and non-federal lands involved in the land
exchange may be in the range of $25,000 to $50,000. However, it is
difficult to estimate the appraisal costs for the Federal lands or
interests in land since the specific Federal lands have yet to be
identified. The Federal land or interests in land to be exchanged may
be a single large parcel, several parcels of various sizes, multiple
scattered small parcels, or a variety of interests in land. These
differences and appraisal complexities can have a significant impact on
the costs of an appraisal. Also, appraisal costs are only a small part
of the overall costs of a land exchange. Other costs include NEPA
compliance, cadastral survey costs if necessary, hazardous material
clearances, threatened and endangered species consultation, cultural
resources clearances and consultation, removal of title encumbrances
including mining claims, public notice procedures and responding to
protests and appeals, and adjudication procedures. These total costs
can exceed $1 million, especially for the larger and more complex land
exchanges.
Question 5. You also state that a provision for cost sharing is
necessary because otherwise the BLM will bear all the administrative
costs of the exchange. I don't read that in the text of HR 1913,
though. Does silence in the bill about cost-sharing override current
policy and guidelines for BLM's exchanges which include cost sharing?
Answer: Land exchange regulations and BLM policies and procedures
require the sharing of costs for processing of land exchanges. It may
not be necessary to include specific language in HR 1913 that requires
compliance with specific land exchange regulations (43 CFR 2200) and
cost share provisions. However, to clarify the intent of HR 1913, we
would recommend that language be included to require that any land
exchange be processed in accordance with the provisions of existing
regulations.
Question 6. I appreciate the Administration's willingness to work
with the Committee to find a way to complete a buy-out by direct
purchase. Have you asked the NZ Corporation about whether they would
prefer a cash payment? Does the Administration support reprogramming to
cover the cost of a cash buy-out?
Answer: The BLM has not discussed the option of a direct purchase
with the NZ Corporation to acquire the mineral interests within the
Pueblo of Acoma. However, in the past, the BLM has been successful in
working with the NZ Corporation to acquire NZ mineral interests within
El Malpais National Monument.
The Department of the Interior has received and is currently
reviewing a request by Senator Bingaman for DOI to make a reprogramming
request to the Appropriations committees of available Land and Water
Conservation Fund (LWCF) monies for a direct purchase of the NZ
Corporation's mineral interests. The Department is assessing whether
the use of LWCF monies is an appropriate means for acquiring the NZ
Corporation's mineral estate. It should be noted that thdre are over
150 ofthe 561 recognized tribes that may have similar private mineral
estate in holdings. For example, in New Mexico, NZ holds 10,610 acres
of mineral estate in the Pueblo of Laguna, and 55,610 acres of mineral
estate within the Navajo Reservation. The use of LWCF monies for Acoma
could therefore set a precedent that may not be in the public interest.
Question 7. The idea of bidding credits was used to purchase
private minerals beneath the Mount St. Helens National Volcanic
Monument in a bill passed by the 105``` Congress. There, the private
mineral owner was amenable to this mechanism because that company
actively bids on Gulf of Mexico oil and gas leases where bonus bids are
often quite large. Am I correct that the bidding credits to be
proffered in lieu of cash would be transferable - and thus have a
market value close to their face value?
Answer: Although the BLM has not discussed the option of bidding
credits directly with the NZ Corporation to acquire the mineral
interests within the Pueblo of Acoma, bidding credits are transferable
and are established at the value of the interests acquired.
Question 8. Would this exchange, in part, fulfill the trust
responsibilities of the Secretary of the Interior toward the Pueblo of
Acoma? If the mineral estate in question were to remain private and NZ
Corporation decides to exercise their rights to access the subsurface
to explore them, how would the Secretary react?
Answer: The land exchange would fulfill in part the trust
responsibility of the Secretary. The land exchange or transfer is to
correct an oversight of the Federal Government when it was granting the
land to the Pueblo of Acoma. The Pueblo considers this land sacred and
would consider any developmental activity on the property an intrusion.
Pursuant to the Secretary's mineral leasing and development authority,
leasing and or development of the subsurface minerals would not occur
without the Pueblo's involvement.
If the mineral estate were to remain private, the Department could
not preclude the NZ Corporation from developing the resource. The
Department could assist the Tribe in reviewing NZ's proposal to develop
the resource and ensuring that the plan complied with all pertinent
environmental and cultural resources laws and regulations.
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Mrs. Cubin. So, yes, I also am, with unanimous consent, and I am
the only one unanimously here, submitting Mr. Kind's testimony for the
record and questions as well that will be submitted to you for answers
on this.
[The prepared statement of Mr. Kind follows:]
Statement of the Honorable Ron Kind, A Representative in Congress from
the State of Wisconsin
Thank you, Madam Chairwoman. The Subcommittee meets today to
consider H.R. 1913, a legislative proposal designed to consolidate
ownership of the surface and subsurface-or the mineral estate of
approximately 68,000 acres in the Pueblo of Acoma.
When the United States created the Acoma Indian Reservation, the
mineral estate had already been deeded to a railroad company, as part
of this country's Western expansion and construction of the
transcontinental railroad.
``N Z''--the successor to the railroad company and current owner of
the lands in question-is entitled to develop the mineral estate it
owns. However, they recognize and appear sensitive to the objections of
the Acoma people.
Understandably, the Acoma would prefer to see their Pueblo's
ancient lands preserved and have objected to NZ's intention to explore
for and develop mineral deposits within reservation boundaries.
Both parties have, it would appear, attempted to resolve the
conflict amicably. And, I commend them both for their efforts. However,
short of giving up their rights to the minerals, NZ cannot resolve the
Acoma's concerns.
And, since the United States started the problem by deeding the
Acoma's aboriginal land to the railroad, it seems only fair that
Congresses authorize the proposed exchange.
In closing, I commend my friend and colleague, Joe Skeen, for his
efforts on behalf of Native Americans, a campaign which has become a
hallmark of his tenure here in Congress.
______
Mrs. Cubin. So thank you all very much. I do apologize that
we have had to cut this short, but we will do the work you have
called on us to do, and we will work with you to see that your
land is protected and that it gets off the dime, that something
starts moving.
Thank you too, Mr. McCaleb, for your testimony.
Subcommittee is now adjourned.
[Whereupon, at 2:57 p.m., the Subcommittee was adjourned.]
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