Land Grant-Mercedes Traditional Use Recognition and Consultation Act

IIB 116TH CONGRESS 2D SESSION H. R. 3682 IN THE SENATE OF THE UNITED STATES DECEMBER 7, 2020 Received; read twice and referred to the Committee on Energy and Natural Resources AN ACT To provide for greater consultation between the Federal Gov- ernment 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. VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6652 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 2 HR 3682 RFS Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Land Grant-Mercedes 4 Traditional Use Recognition and Consultation Act’’. 5 SEC. 2. DEFINITIONS. 6 In this Act: 7 (1) ACEQUIA.—The term ‘‘acequia’’ has the 8 meaning of the term ‘‘community ditch’’ as that 9 term is construed under New Mexico Stat. 73–2–27. 10 (2) COMMUNITY USER.—The term ‘‘community 11 user’’ means an heir (as defined under the laws of 12 the State) of a qualified land grant-merced. 13 (3) GOVERNING BODY.—The term ‘‘governing 14 body’’ means the board of trustees authorized under 15 State law with the control, care, and management of 16 a qualified land grant-merced. 17 (4) HISTORICAL-TRADITIONAL USE.—The term 18 ‘‘historical-traditional use’’ means, for a qualified 19 land grant-merced, for noncommercial benefit— 20 (A) the use of water; 21 (B) religious or cultural use and protec- 22 tion; 23 (C) gathering herbs; 24 (D) gathering wood products; 25 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 3 HR 3682 RFS (E) gathering flora or botanical products; 1 (F) grazing, to the extent that grazing has 2 traditionally been carried out on the land, as 3 determined by the Secretary concerned in con- 4 sultation with the governing body of the af- 5 fected land grant-merced; 6 (G) hunting or fishing; 7 (H) soil or rock gathering; and 8 (I) any other traditional activity for non- 9 commercial benefit that— 10 (i) has a sustainable beneficial com- 11 munity use, as determined by the Sec- 12 retary concerned in consultation with the 13 governing body of the affected land grant- 14 merced; 15 (ii) supports the long-term cultural 16 and socioeconomic integrity of the commu- 17 nity, as determined by the Secretary con- 18 cerned in consultation with the governing 19 body of the affected land grant-merced; 20 and 21 (iii) is agreed to in writing by the Sec- 22 retary concerned and the governing body of 23 the qualified land grant-merced. 24 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 4 HR 3682 RFS (5) INDIAN TRIBE.—The term ‘‘Indian Tribe’’ 1 has the meaning given the term in section 4 of the 2 Indian Self-Determination and Education Assistance 3 Act (25 U.S.C. 5304). 4 (6) QUALIFIED LAND GRANT-MERCED.—The 5 term ‘‘qualified land grant-merced’’ means a com- 6 munity land grant issued under the laws or customs 7 of the Government of Spain or Mexico that— 8 (A) is recognized under New Mexico Stat- 9 utes Chapter 49 (or a successor statute); and 10 (B) has a historic or cultural record of use 11 of lands under the jurisdiction of a Secretary 12 concerned or their original or patented exterior 13 boundaries are located adjacent to land under 14 the jurisdiction of a Secretary concerned. 15 (7) SECRETARY CONCERNED.—The term ‘‘Sec- 16 retary concerned’’ means the relevant Secretary of 17 the Department of Agriculture or the Department of 18 the Interior, with respect to land under the jurisdic- 19 tion of that Secretary. 20 (8) STATE.—The term ‘‘State’’ means the State 21 of New Mexico. 22 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 5 HR 3682 RFS SEC. 3. GUIDANCE ON PERMIT REQUIREMENTS FOR QUALI- 1 FIED LAND GRANT-MERCEDES. 2 (a) IN GENERAL.—In accordance with all relevant 3 laws, including subchapter II of chapter 5 of title 5, 4 United States Code (commonly known as the ‘‘Administra- 5 tive Procedure Act’’) and all applicable environmental 6 laws, and not later than 2 years after the date of the en- 7 actment of this Act, the Secretary concerned, acting 8 through the appropriate officials of the Department of Ag- 9 riculture and Department of the Interior in the State, in 10 consultation with the New Mexico Land Grant Council, 11 the governing bodies of qualified land grant-mercedes, and 12 Indian Tribes, shall issue the written guidance described 13 in subsection (b). 14 (b) CONTENTS OF GUIDANCE.— 15 (1) IN GENERAL.—Written guidance issued 16 under subsection (a) shall include— 17 (A) a description of the historical-tradi- 18 tional uses that— 19 (i) a community user or a governing 20 body of a qualified land grant-merced may 21 conduct for noncommercial use on land 22 under the jurisdiction of the Secretary con- 23 cerned; and 24 (ii) require a permit from the Sec- 25 retary concerned; 26 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 6 HR 3682 RFS (B) administrative procedures for obtain- 1 ing a permit under subparagraph (A); 2 (C) subject to subsection (c), the fees re- 3 quired to obtain that permit; 4 (D) the permissible use of motorized and 5 nonmotorized vehicles and equipment by a com- 6 munity user or the governing body of a quali- 7 fied land grant-merced for noncommercial his- 8 torical-traditional use on land under the juris- 9 diction of the Secretary concerned; 10 (E) the permissible use of mechanized ve- 11 hicles or equipment by a community user or 12 governing body of a qualified land grant-merced 13 for historical-traditional use on land under the 14 jurisdiction of the Secretary concerned; and 15 (F) the permissible use of non-native mate- 16 rial by a community user or the governing body 17 of a qualified land grant-merced for any of the 18 uses covered in paragraphs (2) and (3) on land 19 under the jurisdiction of the Secretary con- 20 cerned. 21 (2) ROUTINE MAINTENANCE AND MINOR IM- 22 PROVEMENTS.—Written guidance issued under sub- 23 section (a) shall address routine maintenance and 24 minor improvements of infrastructure owned or used 25 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 7 HR 3682 RFS by a qualified land grant-merced on land under the 1 jurisdiction of the Secretary concerned, including— 2 (A) cleaning, repair, or replacement-in- 3 kind of infrastructure; 4 (B) maintenance and upkeep of a trail, 5 road, cattle guard, culvert, or fence; 6 (C) maintenance and upkeep of a monu- 7 ment or shrine; 8 (D) maintenance and upkeep of a commu- 9 nity cemetery; 10 (E) maintenance and upkeep of a livestock 11 well, water lines, water storage container, or 12 water tank; and 13 (F) any other routine maintenance or 14 minor improvement associated with historical- 15 traditional uses identified by any of the entities 16 described in subsection (a) in the process of de- 17 veloping the guidance. 18 (3) MAJOR IMPROVEMENTS.—Written guidance 19 issued under subsection (a) may describe the process 20 for managing major improvements of infrastructure 21 owned or used by a qualified land grant-merced on 22 land under the jurisdiction of the Secretary con- 23 cerned, including— 24 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 8 HR 3682 RFS (A) construction or expansion of a commu- 1 nity water or wastewater system; 2 (B) construction or major repair of a live- 3 stock well, water lines, water storage container, 4 or water tank; 5 (C) construction or major repair of a 6 monument or shrine; 7 (D) installation of a cattle guard; 8 (E) construction of a trail, road, or fence; 9 (F) construction or expansion of a ceme- 10 tery; and 11 (G) any other major improvement associ- 12 ated with historical-traditional uses, as deter- 13 mined by the Secretaries concerned. 14 (4) NOTICE AND COMMENT.—Written guidance 15 issued under subsection (a) shall set forth the poli- 16 cies and procedures for notice and comment on plan- 17 ning decisions, routine engagement, and major Fed- 18 eral actions that could impact historical-traditional 19 uses of a qualified land grant merced, and methods 20 of providing notice under subsection (a), including— 21 (A) online public notice; 22 (B) printed public notice; 23 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 9 HR 3682 RFS (C) mail, including certified mail, and 1 email notifications to governing bodies through 2 a listserv; and 3 (D) mail, including certified mail, and 4 email notifications to the Land Grant Council. 5 (c) FEES FOR QUALIFIED LAND GRANT-MER- 6 CEDES.—Where the Secretary concerned is authorized to 7 consider the fiscal capacity of the applicant in determining 8 whether to reduce or waive a fee for a permit for histor- 9 ical-traditional uses, the Secretary shall consider— 10 (1) the socioeconomic conditions of community 11 users; and 12 (2) the annual operating budgets of governing 13 bodies of qualified land grant-mercedes. 14 SEC. 4. CONSIDERATION OF HISTORICAL-TRADITIONAL 15 USE IN LAND MANAGEMENT PLANNING. 16 In developing, maintaining, and revising land man- 17 agement plans pursuant to section 202 of the Federal 18 Land Policy and Management Act of 1976 (43 U.S.C. 19 1712) and section 6 of the National Forest Management 20 Act (16 U.S.C. 1604), as applicable, the Secretary con- 21 cerned shall, in accordance with applicable law, consider 22 and, as appropriate, provide for and evaluate impacts to 23 historical-traditional uses by qualified land grants-mer- 24 cedes. 25 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 10 HR 3682 RFS SEC. 5. SPECIAL USE PERMITS FOR ROUTINE MAINTE- 1 NANCE AND MINOR IMPROVEMENTS OF 2 ACEQUIAS. 3 (a) IN GENERAL.—Not later than 90 days after the 4 date of the enactment of this Act, the Secretary Agri- 5 culture shall initiate procedures under subchapter III of 6 chapter 5 of title 5, United States Code, to promulgate 7 such regulations as are necessary to carry out and imple- 8 ment the Forest Service’s Acequia Guidance Document, 9 dated July 2, 2019. 10 (b) PUBLICATION OF PROPOSED REGULATIONS.— 11 The Secretary shall cause to be published in the Federal 12 Register proposed regulations to implement this section 13 not later than 21 months after the date of the enactment 14 of this Act. 15 (c) EXPIRATION OF AUTHORITY.—The authority to 16 promulgate regulations under subsection (a) shall expire 17 30 months after the date of the enactment of this Act. 18 (d) EXTENSION OF DEADLINES.—The Secretary may 19 extend, for not more than 180 days, a deadline under sub- 20 section (b) or (c) if— 21 (1) the negotiated rulemaking committee re- 22 ferred to in subsection (e) concludes that the com- 23 mittee cannot meet the deadline; and 24 (2) the Secretary so notifies the appropriate 25 committees of Congress. 26 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 11 HR 3682 RFS (e) COMMITTEE.— 1 (1) ESTABLISHMENT.—The Secretary shall en- 2 sure that a negotiated rulemaking committee is es- 3 tablished under section 565 of title 5, United States 4 Code, to carry out this section. 5 (2) MEMBERS.—The members of the committee 6 shall be— 7 (A) the relevant Regional Forester (or a 8 designee of the relevant Regional Forester); and 9 (B) the selected representative of a non- 10 governmental organization identified by the 11 Secretary of Agriculture as having a statewide 12 acequia membership, nominated by such organi- 13 zation to the Secretary of Agriculture. 14 (3) REQUIREMENTS.—The committee shall con- 15 fer with, and accommodate participation by— 16 (A) representatives of any agency or com- 17 mission of the State government established or 18 designated by the State to advise public officials 19 on proposed legislation affecting acequias; and 20 (B) State acequia elected officials. 21 (f) EFFECT.—The lack of promulgated regulations 22 shall not limit the effect of the Forest Service’s Acequia 23 Guidance Document, dated July 2, 2019. 24 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 12 HR 3682 RFS SEC. 6. SAVINGS. 1 Nothing in this Act shall be construed— 2 (1) to impact the State’s authority to regulate 3 water rights, in conformance with all State and Fed- 4 eral laws and regulations; 5 (2) to impact the State’s authority to regulate 6 the management of game and fish, in conformance 7 with all State and Federal laws and regulations; 8 (3) to impact any valid existing rights or valid 9 permitted uses, including grazing permits; 10 (4) to create any implicit or explicit right to 11 grazing on Federal lands; or 12 (5) to alter or diminish any rights reserved for 13 an Indian Tribe or members of an Indian Tribe by 14 treaty or Federal law. 15 SEC. 7. DETERMINATION OF BUDGETARY EFFECTS. 16 The budgetary effects of this Act, for the purpose of 17 complying with the Statutory Pay-As-You-Go Act of 2010, 18 shall be determined by reference to the latest statement 19 titled ‘‘Budgetary Effects of PAYGO Legislation’’ for this 20 Act, submitted for printing in the Congressional Record 21 by the Chairman of the House Budget Committee, pro- 22 VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00012 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS 13 HR 3682 RFS vided that such statement has been submitted prior to the 1 vote on passage. 2 Passed the House of Representatives December 3, 2020. Attest: CHERYL L. JOHNSON, Clerk. VerDate Sep 11 2014 03:02 Dec 08, 2020 Jkt 019200 PO 00000 Frm 00013 Fmt 6652 Sfmt 6201 E:\BILLS\H3682.RFS H3682 pbinns on DSKJLVW7X2PROD with BILLS