00-31365. Consideration of the Accuracy of the Eastern Boundary of the Sandia Pueblo Grant and Request for Additional Information

AGENCY:

Office of the Solicitor, Interior.

ACTION:

Notice and request for further information.

SUMMARY:

The U.S. Department of the Interior announces that it will be considering the accuracy of the eastern boundary of the Sandia Pueblo Grant to determine whether to conduct a resurvey of the boundary. The Department received a request dated November 21, 2000, from an attorney representing the County of Bernalillo and the Sandia Mountain Coalition, for a resurvey to correct the eastern boundary of the Sandia Pueblo Grant. Counsel for the County and the Coalition suggests that his request be combined with consideration of the Pueblo of Sandia's request for a resurvey, which is the subject of a remand from the U.S. District Court in Pueblo of Sandia v. Babbitt as a result of a November 17, 2000, decision of the U.S. Court of Appeals for the D.C. Circuit, dismissing the appeals from the July 18, 1998, ruling of the District Court. The Department also has a letter and legal memorandum from an attorney representing the Pueblo of Sandia, dated November 30, 2000, requesting that the boundary be corrected.

The subject of the eastern boundary of the Pueblo of Sandia has been a matter of concern and debate in the Department of the Interior for many years. In 1988, then-Solicitor Ralph Tarr issued an opinion rejecting the Pueblo's petition for a resurvey. This decision was vacated by a decision of the U.S. District Court in 1998. A substantial record has been accumulated over the years in the consideration of the boundary issue, but the Department is giving interested parties an opportunity to provide any further historical evidence or legal arguments that may be pertinent to this matter.

DATES:

Interested parties may submit additional historical evidence or legal analysis to the address below on or before January 5, 2001.

ADDRESSES:

Submit all information requested in this notice to: Angela M. Kelsey, Office of the Solicitor, U.S. Department of the Interior, 1849 C Street, NW., Mailstop 6456, Washington, DC 20240.

FOR FURTHER INFORMATION CONTACT:

Suzanne R. Schaeffer, Assistant Solicitor for Environment, Land & Minerals, Division of Indian Affairs, Office of the Solicitor, U.S. Department of the Interior, 1849 C Street, NW., Mailstop 6456, Washington, DC 20240. Telephone: [phone].

SUPPLEMENTARY INFORMATION:

In 1983, the Pueblo of Sandia petitioned the Department of the Interior for a corrected survey designating the eastern boundary of its land grant as the “main ridge” of the Sandia Mountains, located northeast of Albuquerque, NM. The Pueblo claimed that an 1859 survey commissioned by the government erroneously set the Pueblo's eastern boundary at the base of the Sandia Mountains rather than along the Mountain's crest line, as allegedly set forth in the Pueblo's 1748 Spanish land grant confirmed by the United States Congress in 1858. In 1988 the Department rejected the Pueblo's claim, concluding that the original land survey accurately set the Pueblo's eastern boundary at the foothills of the Mountains. In the Solicitor's Opinion on the Pueblo of Sandia Boundary, 96 I.D. 331 (1988), then-Solicitor Tarr reasoned that the King of Spain, who originally granted the land to the Pueblo, intended to grant it a “formal” pueblo only, not the larger area claimed. A formal pueblo consists of four square leagues of land, the area within the extension of one league (2.6 miles) measured from the center of the settlement to the north, south, east and west.

The Pueblo sued the Secretary of the Interior and the Secretary of Agriculture, seeking a judgment designating the main ridge of the Sandia Mountains as the Pueblo's eastern boundary and directing the Secretary of the Interior to correct the 1859 survey. The Secretary of Agriculture was included in the suit because the Pueblo claims that the incorrect survey boundary excludes approximately 10,000 acres of land which is administered as part of the Cibola National Forest and the Sandia Mountain Wilderness. The District Court allowed the Sandia Mountain Coalition, a coalition of homeowners and others in the affected region, and the County of Bernalillo to intervene in the case. See Pueblo of Sandia v. Babbitt, 1996 U.S. Dist. LEXIS 20619 (D.D.C.). The court reviewed the Department of Interior's actions under the Administrative Procedure Act, and on July 18, 1998, found them to be arbitrary and capricious. The court vacated the Solicitor's Opinion and remanded the case to the Department of the Interior for action consistent with the court's opinion.

The intervenors, the County of Bernalillo and the Sandia Mountain Coalition, appealed from the court's decision, and the United States also filed a protective notice of appeal to the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit granted the parties' joint motion to hold the proceedings in abeyance pending settlement negotiations. The Pueblo, the federal agencies, the County of Bernalillo, the Sandia Mountain Coalition, the Sandia Peak Tram Company, and the City of Albuquerque then entered into negotiations with a private mediator. The County, the Coalition, and the City withdrew from mediation in August 1999. Nevertheless, the continuing negotiations among the government, the Pueblo, and the Tram Company resulted in a settlement, which was submitted to the New Mexico Congressional delegation. This settlement requires an Act of Congress to become effective. The United States then filed a motion to dismiss the appeals, and the Court of Appeals issued its decision granting the motion and dismissing the appeals on November 17, 2000. See Pueblo of Sandia v. Babbitt, 2000 U.S. App. LEXIS 29339 (D.C. Cir.).

Part IV of the 1988 Tarr Opinion concluded that the Department had no authority to correct the boundaries of Indian reservations. On December 5, 2000, the Solicitor issued an opinion regarding the Secretary's authority to correct the boundary between the San Felipe Pueblo Grant and the El Ranchito Grant owned by the Pueblo of Santa Ana, which overrules Part IV of the Tarr Opinion. The Department has made no new decision on the eastern boundary of the Sandia Pueblo Grant, but intends to reconsider its earlier decision.

Counsel for both the Pueblo and the County of Bernalillo and Sandia Mountain Coalition have since submitted requests to the Department, asking that it correct the eastern boundary of the Sandia Pueblo. It continues to be the position of the Pueblo that approximately 10,000 acres of National Forest was wrongfully excluded from its Spanish Land Grant lands. In his letter, counsel for the Pueblo asserts that when Congress confirmed the Spanish Land Grant in 1858, it did so in reliance on an 1856 Report of the Surveyor General identifying the eastern boundary of the Sandia Pueblo Land Grant as “the main ridge called Sandia.” The letter from counsel for the County and the Coalition attaches a report prepared for the U.S. Forest Service by Dr. Stanley M. Hordes, dated March 1, 1996, which, counsel asserts, establishes that there were errors in the translation of the Land Grant and in the monumenting of the survey, and that the eastern boundary of the Pueblo, as currently recognized by federal agencies and others in maps of the area, is erroneous.

In light of these requests, and consistent with the court's remand order, the Department has decided to reevaluate its earlier decision regarding the Sandia boundary. The Department has accumulated a substantial amount of information over the years related to its consideration of these boundary issues, but is soliciting interested parties to provide any additional historical evidence or legal arguments related to these matters. The Department notes that its reconsideration of the Sandia boundary matters will necessarily not affect the title to any land held by private landowners in the area. The Secretary's resurvey authority is expressly limited by statute so that it may not be used to impair the rights and titles of good faith purchasers of public lands who may otherwise be affected by the resurvey. See Cragin v. Powell, 128 U.S. 691 (1888), see also 43 U.S.C. 772.

(Authority: 25 U.S.C. 176; 43 U.S.C. 772.)

Dated: December 5, 2000.

John Leshy,

Solicitor.