H.R. 103, H.R. 3476 and H.R. 3534
[House Hearing, 107 Congress] [From the U.S. Government Publishing Office] H.R. 103, H.R. 3476 and H.R. 3534 ======================================================================= LEGISLATIVE HEARING before the COMMITTEE ON RESOURCES U.S. HOUSE OF REPRESENTATIVES ONE HUNDRED SEVENTH CONGRESS SECOND SESSION __________ April 17, 2002 __________ Serial No. 107-105 __________ Printed for the use of the Committee on Resources Available via the World Wide Web: http://www.access.gpo.gov/congress/ house or Committee address: http://resourcescommittee.house.gov U.S. GOVERNMENT PRINTING OFFICE 78-759 WASHINGTON : 2002 ____________________________________________________________________________ For Sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800; (202) 512-1800 Fax: (202) 512-2250 Mail: Stop SSOP, Washington, DC 20402-0001 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 Tim Stewart, Chief of Staff Lisa Pittman, Chief Counsel/Deputy Chief of Staff Steven T. Petersen, Deputy Chief Counsel Michael S. Twinchek, Chief Clerk James H. Zoia, Democrat Staff Director Jeffrey P. Petrich, Democrat Chief Counsel ------ C O N T E N T S ---------- Page Hearing held on April 17, 2002................................... 1 Statement of Members: Carson, Hon. Brad, a Representative in Congress from the State of Oklahoma.......................................... 91 Prepared statement on H.R. 3534.......................... 92 Hansen, Hon. James V., a Representative in Congress from the State of Utah.............................................. 1 Prepared statement on H.R. 103, H.R. 3476, and H.R. 3534. 2 Hayworth, Hon. J.D., a Representative in Congress from the State of Arizona........................................... 6 Prepared statement on H.R. 103........................... 6 Issa, Hon. Darrell, a Representative in Congress from the State of California........................................ 3 Prepared statement on H.R. 3476.......................... 5 Kildee, Hon. Dale, a Representative in Congress from the State of Michigan.......................................... 3 Prepared statement on H.R. 103........................... 57 Prepared statement on H.R. 3476.......................... 3 Prepared statement on H.R. 3534.......................... 96 Pallone, Hon. Frank, Jr., a Representative in Congress from the State of New Jersey, Prepared statement on H.R. 3476... 100 Rahall, Hon. Nick J. II, a Representative in Congress from the State of West Virginia................................. 9 Prepared statement on H.R. 103, H.R. 3476, and H.R. 3534. 9 Watkins, Hon. Wes, a Representative in Congress from the State of Oklahoma.......................................... 94 Prepared statement on H.R. 3534.......................... 95 Statement of Witnesses: Anoatubby, Bill, Governor, The Chickasaw Nation.............. 79 Prepared statement on H.R. 3534.......................... 80 Avery, Jim, Senior Vice President, San Diego Gas & Electric.. 38 Prepared statement on H.R. 3476.......................... 39 Brulte, Hon. Jim, State Senator, The State of California..... 7 Prepared statement on H.R. 3476.......................... 8 Garcia, Joe A., Tribal Councilman, San Juan Pueblo Indians... 57 Prepared statement on H.R. 103........................... 59 George, Keller, President, United South and Eastern Tribes, Inc........................................................ 65 Prepared statement on H.R. 103........................... 68 Macarro, Mark, Chairman, Pechanga Band of Luiseno Mission Indians.................................................... 33 Prepared statement on H.R. 3476.......................... 35 Marquez, Deron, Chairman, San Manuel Band of Mission Indians. 60 Prepared statement on H.R. 103........................... 63 Pyle, Gregory, Chief, Choctaw Nation of Oklahoma............. 81 Prepared statement on H.R. 3534.......................... 82 Smith, Chad, Principal Chief, The Cherokee Nation............ 85 Prepared statement on H.R. 3534.......................... 87 Smith, Wayne, Deputy Assistant Secretary--Indian Affairs, Bureau of Indian Affairs, U.S. Department of the Interior.. 11 Prepared statement on H.R. 103........................... 28 Prepared statement on H.R. 3476.......................... 12 Prepared statement on H.R. 3534.......................... 31 LEGISLATIVE HEARING ON H.R. 3476, TO PROTECT CERTAIN LANDS HELD IN FEE BY THE PECHANGA BAND OF LUISENO MISSION INDIANS FROM CONDEMNATION UNTIL A FINAL DECISION IS MADE BY THE SECRETARY OF THE INTERIOR REGARDING A PENDING FEE TO TRUST APPLICATION FOR THAT LAND, AND FOR OTHER PURPOSES; H.R. 103, TO AMEND THE INDIAN GAMING REGULATORY ACT TO PROTECT INDIAN TRIBES FROM COERCED LABOR AGREEMENTS; AND H.R. 3534, TO PROVIDE FOR THE SETTLEMENT OF CERTAIN LAND CLAIMS OF THE CHEROKEE, CHOCTAW, AND CHICKASAW NATIONS TO THE ARKANSAS RIVERBED IN OKLAHOMA ---------- Wednesday, April 17, 2002 U.S. House of Representatives Committee on Resources Washington, DC ---------- The Committee met, pursuant to call, at 10 a.m., in room 1334, Longworth House Office Building, Hon. James V. Hansen (Chairman of the Committee) presiding. STATEMENT OF THE HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF UTAH The Chairman. The Committee will come to order. Good morning. It is good to see you all here. I notice there is a group of folks standing. We are not going to use this bottom tier here today. If you want to come up and take it, if you can stand the embarrassment of sitting up there, we would love to have you come up and take it. [Laughter.] The Chairman. We normally like to use 1324 for our hearings. That is the room on the other end, but there is some work being done on it right now, so we all are stuck in this little room. Today's hearing is on three bills of distinct subject matter. The first is H.R. 3476, which protects from condemnation certain fee land belonging to the Pechanga Band-- and I will probably foul up all of these words, so just ignore that, will you?--of the Luiseno Mission Indians, is that close, Darrell?--until the Secretary of the Interior renders a final decision on the tribe's pending fee to trust application. H.R. 3476 was introduced by Congressman Darrell Issa of California. Mr. Issa will be testifying on his bill this morning, and we thank you for being here. The Chairman. The second bill is H.R. 103, introduced by Mr. Hayworth. H.R. 103 amends the Indian Gaming Regulatory Act to protect tribes from coerced labor agreements in tribal state gaming compacts. H.R. 103 has generated some controversy, but it raises issues that are important to members on both sides of the aisle. The Chairman. The third bill, H.R. 3534, was introduced by Mr. Carson. H.R. 3534 settles claims asserted by the Cherokee, Choctaw, and Chickasaw Nations for damages for the United States use or mismanagement of tribal trust resources from the Arkansas riverbed. The legislation extinguishes all the nations' claims to the riverbed lands at issue, and authorizes $41 million in appropriated claim settlement funds to be allocated among the Cherokee, Choctaw, and Chickasaw Nations. The Chairman. We look forward to some enlightening testimony this morning. I understand that one of our witnesses, California Senator Brulte, may have an unavoidable scheduling conflict requiring his early departure. I hope our other witnesses will not object to the Senator moving up in order and testifying immediately after Mr. Issa. [The prepared statement of Chairman Hansen follows:] Statement of The Honorable James V. Hansen, Chairman, Committee on Resources Today's hearing is on three bills of distinct subject matter. The first is H.R. 3476, which protects from condemnation certain fee land belonging to the Pechanga Band of Luiseno Mission Indians until the Secretary of the Interior renders a final decision on the tribe's pending fee to trust application. H.R. 3476 was introduced by Congressman Darrell Issa of California. Mr. Issa will be testifying on his bill this morning and we thank him for being here. The second bill is H.R. 103, introduced by Mr. Hayworth. H.R. 103 amends the Indian Gaming Regulatory Act to protect tribes from coerced labor agreements in tribal-state gaming compacts. H.R. 103 has generated some controversy, but it raises issues that are important to Members on both sides of the aisle. The third bill, H.R. 3534, was introduced by Mr. Carson. H.R. 3534 settles claims asserted by the Cherokee, Choctaw, and Chickasaw Nations for damages for the United States' use and mismanagement of tribal trust resources from the Arkansas Riverbed. The legislation extinguishes all of the Nations' claims to the riverbed lands at issue, and authorizes $41 million in appropriated claim settlement funds to be allocated among the Cherokee, Choctaw, and Chickasaw Nations. We welcome our witnesses and look forward to hearing from you. ______ The Chairman. Excuse me. Mr. Miller, did you have any opening comment you wanted to make? Mr. Miller. No, sir. The Chairman. Mr. Kildee? Mr. Kildee. Are we dealing first with H.R. 3476, Mr. Chairman? The Chairman. Pardon me, sir? Mr. Kildee. Are we dealing first with H.R. 3476? The Chairman. Yes. Mr. Kildee. I would like to make a statement on that, Mr. Chairman. The Chairman. All right. STATEMENT OF THE HON. DALE E. KILDEE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN Mr. Kildee. Mr. Chairman, I am in strong support of H.R. 3476, a bill to protect certain lands held in fee by the Pechanga Band of Luiseno Mission Indians from condemnation proceedings until the Secretary of Interior makes a final decision regarding the pending fee to trust application for that land. Mr. Chairman, since last fall you and I have worked together with Chairman Macarro to find a legislative solution to protect the land in question from condemnation proceedings until the Secretary makes a final decision. Last month the Department of Interior gave notice of its intent to take the land in trust for the Pechanga Band. The Federal administrative process for taking land into trust for tribes should continue without interruption. We therefore should act swiftly to protect that land from the actions of corporations that wish to begin condemnation proceedings on the Pechanga ancestral lands. Mr. Chairman, I look forward to working with you on this and hearing the testimony today. [The prepared statement of Mr. Kildee follows:] Statement of The Honorable Dale E. Kildee, a Representative in Congress from the State of Michigan, on H.R. 3476 Mr. Chairman, I am in strong support of H.R. 3476, a bill to protect certain lands held in fee by the Pechanga Band of Luiseno Mission Indians from condemnation proceedings until the Secretary of Interior makes a final decision regarding the pending fee to trust application for that land. Mr. Chairman, since last fall, you and I have worked together with Chairman Macarro to find a legislative solution to protect the land in question from condemnation proceedings until the Secretary makes a final decision. Last month, the Department of Interior gave notice of its intent to take the land in trust for the Pechanga Band. The Federal administrative process for taking land into trust for tribes should continue without interruption. We, therefore, should act swiftly to protect that land from the actions of corporations that wish to begin condemnation proceedings on the Pechanga ancestral lands. I look forward to hearing the testimony today. Thank you. ______ The Chairman. I thank the Gentleman. I ask unanimous consent that following his testimony, the Gentleman from California, Mr. Issa, be allowed to sit on the dais and participate in the hearing. Is there objection? Hearing none, so ordered. We are honored to have our colleague from California with us, and we will turn the time to him. STATEMENT OF HON. DARRELL ISSA, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA Mr. Issa. Thank you, Mr. Chairman, and thank you for convening this hearing. H.R. 3476 will protect 724 acres known as the Great Oak Ranch property from condemnation by San Diego Gas and Electric until, and only until, a final decision is made by Secretary Gale Norton regarding the pending trust application. Mr. Chairman, just as I was sworn into office, the Pechanga Band of Mission Indians purchased the Great Oak Ranch. That is not because of any coincidence of my election, but in fact because they had sought this land for more than 30 years and its owner had sought to retain it, I guess until their death. As soon as this property was available, Pechanga paid the full list price to purchase this land, and did so because it takes land which has previously been missing from reuniting two portions of their tribal and now makes them whole. This is a perfect example of where land should be placed in trust because it makes their reservation contiguous. Unfortunately, the celebration surrounding the purchase of land was short-lived. On March 23, 2001, San Diego Gas & Electric released a map proposing 17 different alignments for a 31-mile stretch of what is now a 500,000-volt line known as the Valley-Rainbow transmission line. Unfortunately, one of the alignments goes through the heart of the Great Oak Ranch property and the city of Temecula. The city of Temecula has objected to this alignment, as have the Pechanga Band of Indians. I think it is best to try to shape if I can for you the nature of this land in trust request. If this were the preferred route that went through the Pechanga Reservation, I certainly would be looking differently upon it. It is not. As a matter of fact, the San Diego Gas & Electric, in meetings directly with me, has said that the preferred route is an alignment which is presently not available to them, because what they would like to do is either be just on Federal property, part of a national forest, or on existing land, land in trust of the Pechanga Indians. Negotiations have been ongoing on that alignment, and I would expect them to continue. So it was with more than a little bit of consternation when I discovered that steadily San Diego Gas & Electric was opposing this land being placed in trust, and intends to appeal the Notice of Decision. When I asked why they would do so, I received no official answer. However, based on earlier discussions, it is very clear that this piece of land represents, appropriate to San Diego Gas & Electric but inappropriate in my opinion, leverage to get a preferred alignment. Additionally, it has come to my attention that one of the alignments, and you may hear about it today, which I call the western alignment, which goes through national forest lands, was never submitted, although another organization wishing to do a water, hydroelectric project, has requested that alignment. When asked why San Diego Gas & Electric did not choose to request that one, they said although it was a good alignment, it was difficult, and the water project would not go through. Today you will also hear from State Senator Brulte, who not only is a State Senator and former State Assemblyman, but who has been working on these issues for his entire tenure in the State House. Mr. Chairman, I would ask that my entire statement be put in the record, and I will abbreviate it in hopes that I be able to join you on the dais and witness if there are any new developments. [The prepared statement of Mr. Issa follows:] Statement of The Honorable Darrell E. Issa, a a Representative in Congress from the State of California, on H.R. 3476 Mr. Chairman, I want to thank you for holding a hearing on H.R. 3476, which will protect a 724-acre parcel of land known as the Great Oak Ranch Property from condemnation by San Diego Gas and Electric until a final decision is made by Secretary Gale Norton regarding their pending trust application. First, I want to give you a brief background on why I introduced this bill. Last April, I was approached by the Pechanga Band of Luiseno Mission Indians concerning a developing situation involving land they recently purchased for the purpose of making their fragmented reservation whole again. The celebration surrounding the purchase of this property was short-lived. On March 23, 2001, San Diego Gas & Electric (SDG&E) released a map proposing 17 different alignments for a thirty-one mile, 500,000-volt Valley-Rainbow transmission line project. Unfortunately, one alignment goes through the heart of the Great Oak Ranch Property. The City of Temecula has come out in opposition to this alignment and this project, questioning its need and justification. The interesting thing is that the Great Oak Ranch Property alignment selected is not SDG&E's preferred route. The preferred route is intended to go around the periphery of the existing reservation and SDG&E is using a threat of a transmission line through the Great Oak Ranch Property to gain an unfair advantage against the tribe into granting an easement. On March 21, 2002, the Department of Interior registered a Notice of Decision to accept the Great Oak Ranch Property in trust. That same day, a SDG&E spokesperson stated in a local paper that they would plan to appeal this Notice of Decision. If this happens, an appeal could potentially delay the Pechanga Indians' land into trust application for years, with the threat of condemnation hanging over them the entire time. I respect the committee's stance that placing land into trust should be done administratively, based on the application's merits, with the benefit of an environmental assessment and community input. My bill simply allows the Pechanga Indians application to continue through the administrative process and prevent any encumbrance from being placed on the land until a final decision is issued by the Secretary of Interior. The Pechanga reservation has received overwhelming public support regarding their attempts to protect the Great Oak Ranch property from condemnation. The city councils, state legislators, such as State Senator Jim Brulte, who will be testifying shortly, and members of Congress, including Congresswoman Mary Bono and Congressman Ken Calvert, a distinguished member of this committee, have all voiced or written support for this endeavor. Mr. Chairman, I would like to submit for the record a packet of letters in support of Pechanga's land into trust application. Many of these letters are from California State Assembly Members, demonstrating how important this application is to the state. Mr. Chairman, H.R. 3476 is a good bill. It will protect the Pechanga Indians' land from condemnation, while Secretary Norton decides on the application. Having finally connecting the two parcels of the reservation with the Great Oak Ranch Property, the Pechanga Indians shouldn't have to worry about the land being condemned and divided again. Thank you again for the opportunity to testify before for your committee. I stand ready to answer any questions that you may have. ______ The Chairman. Without objection, and all the testimony will be put in in its entirety, if people would like to speak off the cuff. I appreciate the Gentleman. Do we have any questions for our colleague from California? Mr. Miller? Mr. Miller. I have no questions. I am obviously in strong support of the legislation. I thought we were going to get this done last year, and it didn't happen. Hopefully we will have the success this year. Thank you for your testimony, and I look forward to Senator Brulte's testimony. The Chairman. I thank the Gentleman from California. The Gentleman from Arizona, Mr. J.D. Hayworth, has done us an exceptionally good job on these matters, Indian matters, and J.D. happens to be our expert on it. I have a military issue I have to take care of, so I am going to turn the chair over to Mr. Hayworth, who does such an admirable job in this area, and ask our friend from California to please join us on the dais. Mr. Issa. Thank you, Mr. Chairman. The Chairman. And thanks to all the witnesses. And let me reiterate for you folks standing there, we are not going to use this bottom tier. If you are so inclined, come on up and sit there. If it embarrasses you to death, so be it. We go through that every day. [Laughter.] STATEMENT OF THE HON. J.D. HAYWORTH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ARIZONA Mr. Hayworth. [Presiding.] Mr. Chairman, thank you, and I hope the embarrassment does not extend to yielding the gavel to me. We also welcome the Ranking Member of the Full Committee, Mr. Rahall. Thank you for joining us this morning. And for those who join us on the lower dais, I think it lends credence to the notion that this is in fact the people's House. Mr. Issa, of course you are free to come join us here, as well, and we thank you for that. In fact, unanimous consent came earlier. It pays to be on time, Mr. Rahall. Don't start. Now, commensurate with staying on time, we will move now to Panel 2, and that means we call on our friend, Wayne Smith, the Deputy Assistant Secretary of Indian Affairs for the Bureau of Indian Affairs. [The prepared statement of Mr. Hayworth follows:] Statement of The Honorable J.D. Hayworth, a Representative in Congress from the State of Arizona, on H.R. 103 H.R. 103 amends the Indian Gaming Regulatory Act to prohibit tribal-state gaming compacts from including or being conditioned on any agreement containing any provision relating to labor terms or conditions for employees of tribally owned businesses located on Indian lands. The legislation voids any such provisions that have been entered into before, on, or after the legislation's enactment. In 1998, the California Supreme Court overturned Proposition 5, which confirmed California tribes' right to gaming enterprises. As a result, the United States attorney declared that all tribal gaming in the state would cease unless Tribal-State compacts were signed by October 13, 1999. Faced with the prospect that their most valuable economic assets (which help fund health care facilities, education facilities, and other social and economic endeavors), would be shut down, 61 California tribes were essentially coerced into signing gaming compacts with Governor Gray Davis that carried separate labor agreements. It was made very clear by Governor Davis that a gaming compact would not be signed without a labor agreement. As a matter of Federal law, the National Labor Relations Act does not apply to Indian tribes because they are recognized as sovereign governmental entities under the Constitution. Nevertheless, under the time-sensitive deadline set in California, tribes in that state were forced to cede their sovereignty--their constitutional rights--to the State of California in order to save their enterprises from being shut down. The issue here is not whether tribes should unionize their gaming facilities, but who should make that decision. Should it be up to the sovereign tribal governments, or should it be up to the states or the Federal Government? The U.S. Constitution states that it is the tribes, as sovereign government entities, that have the right to make this decision. Recently, referring to the San Juan Pueblo of New Mexico tribe's right-to-work ordinance, the 10th U.S. Circuit Court of Appeals stated that the ordinance was ``clearly an exercise of sovereign authority over economic transactions on the reservation.'' H.R. 103, the Tribal Sovereignty Protection Act, will ensure that states do not force Indian tribes to unionize their casino employees as a condition of a tribal-state gaming compact made under the Indian Gaming Regulatory Act. The bill will allow sovereign tribes to have the freedom to determine their own labor policies, rather than be blackmailed by the state and/or Federal Government. ______ Mr. Hayworth. Oh, I beg your pardon. There has been a late change, speaking of time. Forgive me, Wayne. We will bring you up all in due time, but mindful of the schedule that Senator Brulte must keep to return to serve the people in Sacramento and the State of California, we welcome him to the table for his testimony. So, Senator Brulte, welcome, and again, your entire statement will be put into the record and you may summarize in the time for which we recognize you. Welcome. STATEMENT OF HON. JAMES BRULTE, STATE SENATOR, STATE OF CALIFORNIA Mr. Brulte. Thank you, Mr. Chairman and members, and thank you for the opportunity to testify on this legislation today. I am here to support H.R. 3476, and the reason is quite simple. A vast majority of State and local interests support the protection of the Great Oak Ranch and its return to the Pechanga Reservation. This support is demonstrated by a list and a stack of letters that I would like to provide the Committee today. I think the depth and breadth of the support here is a strong indication of the uniqueness of the property in question and the need for this legislation. Later in this hearing Chairman Macarro will provide you a moving and powerful story about this land, a particular tree and its cultural significance. It is a story that he has shared quite effectively throughout Riverside County and the corridors of our State Capitol. It is a story of pictures, one of which is here today, this 1500-year-old tree with its 26-foot diameter trunk. I am here today on behalf of myself and many State legislators and local officials to ask the Committee to take favorable action on the bill introduced by Congressman Issa and cosponsored by Congresswoman Bono, so that our efforts to protect the Great Oak Ranch are successful. H.R. 3476 does not impede California's right to act through its Public Utilities Commission to determine the need for better electrical transmission capability. H.R. 3476 does not take a position on the March 2002 position of the United States Department of Interior to take this land into trust. H.R. 3476 simply calls a time out in the condemnation process until the United States Department of Interior makes a final determination on taking that particular piece of land into trust. Mr. Chairman, thank you for allowing me the opportunity to speak, and particularly for allowing me the opportunity to speak out of order, and I will provide my written testimony to the Committee. [The prepared statement of Mr. Brulte follows:] Testimony of The Honorable James Brulte, Senator, California State Senate--31st District Mr. Chairman and Members, thank you for the opportunity to testify today on this important legislation. I also want to publicly thank our Congressman, Darrell Issa, for his leadership role on this matter. I am here in support of H.R. 3476. My message to you is simple. A vast majority of state and local interests support protection of the Great Oak Ranch and its return to the Pechanga Reservation. This support is demonstrated by this list and the stack of letters I am providing the committee. I do not need to tell members of this committee how unusual it is to have such strong local support for the protection of lands on behalf of a tribe. I think the depth and breadth of the support here is a strong indication of the uniqueness of the property in question and the need for this legislation. Chairman Macarro has presented to you the moving and powerful story of this land, its tree, and its cultural significance. It's a story that he has shared quite effectively throughout Riverside County and in the corridors of our state capitol. It's a story with pictures, one in particular, that he has shared with you today--that 1500-year old tree with its 26-foot diameter trunk. As incredible as that picture is, it still doesn't do the tree justice. The next time you're in our part of the world, I hope you will contact me or Chairman Macarro and arrange a visit so you can stand under the tree and really grasp its grandeur. I am here on behalf of myself and many other state and local officials to ask the committee to take favorable action on the bill introduced by Congressman Issa and co-sponsored by Congresswoman Bono so that our efforts to protect the Great Oak Ranch are successful. It should be no surprise to anyone here today that as a state senator, I am quite partial to the final amendment in the Bill of Rights. The 10th Amendment is the foundation of our Federalist form of government and is what protects the notion that what might be good for Californians isn't always the best solution for Arizonians--and vice versa. I'd be remiss if I did not thank those of you who first looked at this legislation with a skeptical eye and through the prism of the 10th Amendment. However, as demonstrated by the chart on the easel and by my attendance at this hearing today, rest assured that the action taken by you and the Department of Interior is not only appropriate in the eyes of local officials, but, in my opinion, is required. As a legislator, I could give you a very technical overview about Section 625 of the California Public Utilities Code, which has been cited here today. But, in a nutshell, SDG&E's efforts to condemn this property before the CPUC has made a decision on the necessity of the line is why we are here today and why this legislation is necessary. But rather than get into a detailed discussion about Public Utilities Code Section 625, I am submitting a briefing on the issue for the record. The bottom line is that the community supports the protection of the Great Oak Ranch and this legislation. The Issa/Bono bill tracks our state law in the sense it gives the benefit of the doubt to the private property owner and puts the burden of proof on the utility company. This legislation merely protects the status quo with respect to this particular piece of land that the Federal Government has deemed worthy of being taken into Federal trust on behalf of the Pechanga Tribe. Mr. Chairman, I again thank you for the opportunity to testify today and I again urge the Committee's favorable and expeditious action on H.R. 3476. I look forward to answering the committee's questions. ______ Mr. Hayworth. And, Senator, we thank you for that, and we thank the other witnesses and the Full Committee for the accommodation to allow you to appear at this point. If you could, briefly summarize and just reaffirm for the Committee the benefits, in your opinion, that the transfer of the Great Oak Ranch into trust would bring to the surrounding community. Mr. Brulte. Well, this is a historic growth. We have so much land in California. Much of it is being taken into development. This is a piece of land that divides a reservation. It is land that is part of the ancestral home of the Pechanga Indian Nation. It is land that ought to be saved, set apart, and not devastated by any type of development, by any entity whatsoever. Mr. Hayworth. Senator, what are the adverse impacts to the county or State resulting from removal of this land from the tax rolls? Are there any adverse impacts, in your estimation? Mr. Brulte. No, the tax rate on this property isn't that great to begin with, but the State of California is quite capable of dealing with any problem that might be created by that. Mr. Hayworth. It has been argued by some this legislation is a Federal intrusion on the right of a State-regulated utility to condemn land. What is your response to that accusation? Mr. Brulte. Well, the Federal Government is charged with the responsibility of dealing with other sovereign entities, in this case the sovereign Nation of the Pechanga Indians. Our California Public Utilities Commission has not ruled today on whether or not this land should be condemned and taken into action. This simply calls a time out in the process pending a final determination by the Federal Government. Mr. Hayworth. Senator, I thank you for those answers. Any questions from the minority side? The Ranking Member. STATEMENT OF THE HON. NICK J. RAHALL II, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF WEST VIRGINIA Mr. Rahall. Thank you, Mr. Chairman. I have no questions, and certainly no objection to the bill. I just wanted to make a comment here that we have seen Indian sacred sites around the country being damaged or destroyed at quite an alarming rate. In this regard, it is my opinion we do need a nationwide bill to address protection of Indian sacred sites. I do have legislation that would provide that nationwide protection, and we are working very closely with the tribes, because it is their feeling that we need such a Federal law as well. But in this particular instance there is this 1500-year-old tree on land that the Pechanga bought, and it is almost humorous to think that a Federal law may be needed, that we may need to pass a Federal law to buy the tree a little time, as you have just stated, while the BIA decides on the tribe's trust application. We can only imagine what this tree has been through over the hundreds of years it has stood there, and now its fate may be in the hands of the BIA's ability to make a quick decision. This could be the most sacred time of this tree's life. I do commend the Gentleman from California, my good friend, Mr. Issa, for introducing this legislation. Let's just hope and pray that the BIA will work to bring the land into trust status for protection in some sort of expeditious fashion, if that is possible. I yield my time back, Mr. Chairman. Thank you. Statement of The Honorable Nick J. Rahall, II, Ranking Democrat, Committee on Resources, on H.R. 3476, H.R. 103 and H.R. 3534 Mr. Chairman, there are three bills on the schedule this morning and it is my understanding we will be allowed an opening statement on each one. Mr. Miller will address H.R. 103, Mr. Carson his bill, H.R. 3534 and I will speak to H.R. 3476 for the time being. This legislation by my good friend, Darrell Issa, would protect land containing a valuable piece of history and sacred sites of the Pechanga Tribe from possible condemnation. The Tribe has bought land in its ancestral area and has an application pending for it to be brought into trust status and it should be. Indian sacred sites are being damaged and destroyed at an alarming rate all across our nation. I believe we need to pass legislation to address the problem nationwide and am working with tribes on such a bill. In this particular instance, there is a 1,500 year old tree on the land the Pechanga bought. It is almost humorous to think that a Federal law may need to be passed to buy the tree a little time while BIA decides on the tribe's trust application. Imagine what that tree has been through over the hundreds of years it has stood there--and now--its fate may be in the hands of the BIA's ability to make a quick decision, This could be the scariest time of this tree's life. Let us just hope and pray that the BIA will work to bring the land into trust status for protection in an expeditious fashion. As I noted, George Miller will have some comments to make on H.R. 103 when it is brought up for consideration. I would simply observe that the bill an anti-labor, anti-worker, and a not even thinly disguised assault on labor unions. No surprise there `` The surprise is, however, that it has been dressed up to look something like a pro-tribal sovereignty and that is just a bad political ploy. I welcome our witnesses and I thank them for traveling here. ______ Mr. Hayworth. Thank you, Mr. Rahall. Anyone on this side with other questions? The Gentleman from California, Mr. Miller. Mr. Miller. Thank you, Mr. Chairman. I just want to say, Jim, welcome to the Committee, and thank you for all your work on behalf of these lands. You and Congressman Issa have done a great job in seeking to protect these lands, and work out all the intricacies and the nervousness of the utilities and everyone else. When we think of what is happening in some of the oak forests in northern California that are succumbing to sudden oak disease and we are losing magnificent trees, this may be more important than we thought when we originally started to save this tree and the surrounding environment. So thank you for your effort, and thank you for making the effort to come back and testify on the bill. Mr. Brulte. Thank you, sir. Mr. Hayworth. Our friend from California, Mr. Issa. Mr. Issa. Thank you, Mr. Chairman. Senator Brulte, would it be fair to say that the question of whether or not this power line is needed and where the appropriate alignments are to be placed is a State issue, and whether or not this particular one of 17 stated alignments is available is a Federal issue? Would you say that is sort of the balance we are considering here today? Mr. Brulte. Sure, and the California Public Utilities Commission, if and when this bill is passed, will still be charged with the responsibility of determining whether or not the line is needed, and San Diego Gas & Electric will still have condemnation rights everywhere but this land. So I don't think States' rights are being impeded at all. If it were, Senator Burton, my majority party counterpart, and local elected officials numbering in the hundreds, wouldn't be in support of this legislation. Mr. Issa. Senator Brulte, just one last follow-up. Would my observation be correct that there is virtually no support on either side of the aisle in California, in the Senate, the Assembly, or local, in the surrounding areas, for this project at this time, and certainly this alignment? Mr. Brulte. I am not aware of any support for it, Congressman Issa. Mr. Issa. Thank you, Senator. Thank you for being here today. I realize this was quite a detour for you. Mr. Brulte. Well, thank you very much. Mr. Hayworth. Thank you, Mr. Issa. The Gentleman from Michigan, Mr. Kildee. Mr. Kildee. Just briefly, Senator, having served in my State Senate, I am always pleased when I find a representative of one of our sovereign States being sensitive to the concerns of our sovereign native tribes, and I just commend you for your position and commend you for testifying today. Mr. Brulte. Thank you, sir. Mr. Kildee. Thank you very much. Mr. Hayworth. And I thank my friend from Michigan for waxing nostalgic and hopeful all in one great statement. If there are no other questions or comments for our witness, again, Senator Brulte, thank you, and safe travels back to your home State and up to Sacramento. We appreciate you being here. And now a fellow who warmed up for moving front and center is now prepared to do that, and that again is the aforementioned Wayne Smith, the Deputy Assistant Secretary of Indian Affairs from the Bureau of Indian Affairs. Good morning, Mr. Smith. We apologize for the false start earlier, but we trust you are ready to offer testimony on these three pieces of legislation, and we welcome you. STATEMENT OF WAYNE SMITH, DEPUTY ASSISTANT SECRETARY, INDIAN AFFAIRS, BUREAU OF INDIAN AFFAIRS, DEPARTMENT OF THE INTERIOR Mr. Smith. Good morning, Mr. Chairman. Thank you for allowing me to be here. It is always fun to testify before this Committee. As a matter of process, do you want me to testify to all three bills at this time, or just the bill that is being heard at this time? Mr. Hayworth. We would like you to go for it. Maybe I shouldn't use the term ``trifecta'' but all three bills. Mr. Smith. Yes, that is good. I have never done very well at the horse track, so I won't do that. I thought in the interest of time and brevity I will leave some of the background information out of all three of the bills, because there are Gentlemen that will testify after me that are much more knowledgeable about those than I am. So what I would like to do is talk more about either the policies or the law that affects any one of these three bills. In terms of the instant bill, as to the Pechanga Reservation, on March 21st of 2002 the Acting Regional Director of the BIA's Pacific Region issued a Notice of Decision to accept the ranch property into trust status pursuant to the Indian Land Consolidation Act. A copy of that notice is attached to my complete testimony, for all of you gentlemen here today. Under 25 C.F.R. Part 151, unless an acquisition is mandated, the BIA must consider the following factors before determining to take the land into trust. One is the tribe's need for additional land. Two is the purpose for which the land will be used. Three is the impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls. Four is jurisdictional problems, potential conflict on the land which may arise. Five is whether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land. And, six, whether or not contaminants or other hazardous material may be present on the property. The BIA found in its decision that the tribe did have need for the additional land; that the land would be used for religious and cultural preservation purposes; that there would be no adverse impact on the local government's financial situation; that there would be no jurisdictional problems or potential conflicts after the transfer of the title into trust; that we are indeed equipped to administer additional responsibilities resulting from the acquisition; and that there are no contaminants or other hazardous substances present on the property. This decision, however, is not a final decision, a final agency action as defined by the Administrative Procedures Act, and any party who is adversely affected may file an appeal of a Notice of Decision with the Interior Board of Indian Appeals within 30 days of the initial decision. Upon the conclusion of the 30-day period, unless there is an appeal to the IBIA, the Regional Director will publish notice of final agency action pursuant to 25 C.F.R. 151.12(b), to allow for 30-day judicial review. The Department believes that in this case the procedures set out in 25 C.F.R. Part 151 should continue to be followed. We recognize Congress has the plenary power to take the land into trust on behalf of the tribe. However, we remain seriously concerned with congressional intervention once the administrative process has been initiated. This concludes my testimony on this bill. If you would like to ask me some questions, I would be happy, before we move to the next bill, Mr. Chairman. [The prepared statement of Mr. Smith follows:] Statement of Wayne Smith, Deputy Assistant Secretary--Indian Affairs, U.S. Department of the Interior, on H.R. 3476 Good morning, Mr. Chairman, Members of the Committee. I would first like to take the opportunity to thank you for the invitation to present testimony today on H.R. 3476, a bill to protect certain land located in Riverside County, California, that is held in fee simple by the Pechanga Band of Luiseno Mission Indians (``Tribe'') from condemnation until a final decision is made by the Secretary of the Interior on a pending application for trust status of the lands. BACKGROUND The Pechanga Reservation was established by Executive Order on June 27, 1882, in what is now Riverside County, California and currently consists of 4,396 acres of trust lands. In 2001, the Pechanga Band of Luiseno Indians acquired a parcel of land in fee simple consisting of 697.35 acres of land and known as the Great Oak Ranch (``Ranch''). In June 2001, the Tribe applied to the Department's Bureau of Indian Affairs (``BIA'') to have the land placed into trust status, pursuant to the provisions of 25 CFR, Part 151. The Ranch is contiguous to the Pechanga Indian Reservation and is home to the largest natural-growing, indigenous live oak tree in the United States, estimated to be over 1,500 years old. The tree serves as a spiritual place and has been used by the Tribe for generations for ceremonies. Additionally, there are other cultural resources located within the Ranch property which are of importance to the Tribe. There are seven archaeological sites located on the property, and along with the tree, the tract is eligible for inclusion on the National Register of Historic Places. The Tribe's stated purpose for acquiring the ranch is to preserve and protect the cultural resources of the Luiseno people. CURRENT SITUATION On March 21, 2002, the Acting Regional Director of the BIA Pacific Region issued a Notice of Decision to accept the Ranch property into trust status pursuant to the Indian Land Consolidation Act of 1983 (25 U.S.C. 2202 et seq.). A copy of the Notice of Decision is attached. Under 25 CFR, Part 151, unless an acquisition is mandated, the BIA must consider the following factors before determining to take land into trust: 1. Lthe Tribe's need for additional land; 2. Lthe purpose for which the land will be used; 3. Lthe impact on the State and its political subdivisions resulting from the removal of the land from the tax rolls; 4. Ljurisdictional problems and potential conflict of land use which may arise; 5. Lwhether the BIA is equipped to discharge the additional responsibilities resulting from the acquisition of the land; 6. Lwhether or not contaminants or other hazardous materials may be present on the property. The BIA found that the tribe did have the need for additional land; that the land would be used for religious and cultural preservation purposes; that there would be no adverse impact on the local governmental financial situation; that there would be no jurisdictional problems or potential conflicts after the transfer of the title into trust; that BIA is equipped to administer additional responsibilities resulting from the acquisition; and that there were no contaminants or hazardous substances present on the property. This decision is not a final agency action as defined by the Administrative Procedures Act, but any party who is adversely affected may file an appeal of the Notice of Decision with the Interior Board of Indian Appeals (``IBIA'') within thirty days of the initial decision. Upon the conclusion of the thirty day period, unless there is an appeal to the to the IBIA, the Regional Director will publish notice of final agency action pursuant to 25 CFR 151.12(b), to allow 30 days for judicial review. Lands held in trust by the United States for the benefit of Indian tribes enjoy a number of protections that land held in fee simple status do not. Lands held in trust are removed from local tax rolls. Additionally, lands held in trust may not be condemned without agreement of the Indian tribe involved and the lands are exempt from certain zoning laws. The procedure for taking land into trust set out at 25 CFR, Part 151, sets high standards tribes must meet before the Department of Interior determines to take property into trust. It is a fair process which provides for a comment period during which affected parties may provide information to the Bureau of Indian Affairs regarding positive or adverse effects the decision may have, and it provides an opportunity for these parties to appeal a decision which is adverse to their interests. The Department believes that in this case, the procedure set out in 25 CFR, Part 151 should continue to be followed. We recognize Congress has the plenary power to take the land into trust on behalf of a tribe. We remain seriously concerned, however, with congressional intervention once the administrative process has been initiated. This concludes my personal statement. I would be pleased to answer any questions you may have. ______ [Attachments to Mr. Smith's statement follow:] [GRAPHICS NOT AVAILABLE IN TIFF FORMAT] Mr. Hayworth. Questions on H.R. 3476? Anyone have a question? The Gentleman from California. Mr. Issa. Thank you, Mr. Chairman. I really just have the one. In making the finding, you laid out the elements. The fact that this rejoins their reservation into a contiguous single reservation, was that a major part of the consideration or at least a part of the consideration? Mr. Smith. It is certainly a part of the consideration, absolutely. Mr. Issa. And is this almost universally, as long as the other elements of not having hazardous waste and so on, one of the cases in which if you are rejoining a reservation that is split, that you almost always come in on the side of rejoining reservations? Is that pretty much a universal stand that the bureau tries to do? Mr. Smith. If all the standards that I read out, that I just read, are followed or found, certainly trying to restore a reservation would be a policy concern, I guess, of this department. Mr. Issa. And, last, in your due diligence you did look at and were made fully aware of San Diego Gas & Electric's position of potentially this being one of 17 alignments? Mr. Smith. Yes. Mr. Issa. So although they undoubtedly will make their point known again here today, this was something that was fully considered and by the action was found not to be a compelling issue that would stop this from being placed in trust? Mr. Smith. I would phrase it more that our responsibility is to the Indian nation, and we looked under these regulations as to what is best for the Indian nation under these regulations. While we were aware of the power lines and so forth, our real concern and the things that we look at are those that I enunciated in my testimony. Mr. Issa. Thank you very much. Mr. Hayworth. Thank you, Mr. Issa. Questions on the minority side? The Gentleman from Michigan, Mr. Kildee. Mr. Kildee. Mr. Smith, generally the criteria you use for taking land into the trust, those criteria do apply to this particular piece of land? Mr. Smith. Absolutely. Mr. Kildee. And do you believe, then, that the BIA should take this particular land into trust? Mr. Smith. Yes. Mr. Kildee. Thank you very much. Mr. Hayworth. Thank you, Mr. Kildee. The Chair has a couple of questions, Mr. Smith. On March 21, 2002, the administration released a Notice of Decision to take the Great Oak Ranch property into trust. Would that notice, in your opinion, would that Notice of Decision negate the need for H.R. 3476? Mr. Smith. We believe that the process that we have in place right now is adequate to sort of protect this piece of property. We would like to see the administrative process go forward, and we think that there is adequate appeal, judicial appeal, for that. I recognize you have plenary powers. I would be very cautious to say that it negates the need for you gentlemen to do anything. Mr. Hayworth. And we thank you for being respectful of the separation of powers. The diplomacy, Wayne, with which you replied to that, is great. Now, a chance to analyze another assertion that is often made, the argument that H.R. 3476 is a Federal intrusion on the right of a State to condemn land. What is your response to that assertion? Mr. Smith. Well, again, we have a process, the fee to trust process, that is actually a Federal process, and certainly that process would preempt, if you will, a State's ability to condemn land. So, again, I would refer to my first answer and say that I think the process we have already is based on the statute and based on regulations, and it certainly is a preemption of some of the State's ability to do things, but it has a complete judicial review and we are more than happy to let that judicial review run. Mr. Hayworth. Thank you, sir. I believe the Gentleman from California, Mr. Miller, had a couple of questions. Mr. Miller. I really had no questions. I just wanted to make sure that we understood--I appreciate there are problems with the testimony, but it is the position, your position, that this land should be taken into trust? Mr. Smith. That is correct. Mr. Miller. Thank you. Mr. Hayworth. Reaffirmed and amplified through testimony again. Thank you, Mr. Miller. Any questions from the majority side? Any others from the minority side? Oh, the Gentleman from Montana. Mr. Rehberg. Thank you, Mr. Chairman. It is a pretty simple question. I was just trying to work on these acreages, and one briefing that I have says it is 4,396 acres of trust land and 697.35 of the Great Oak Ranch, and the other briefing says 3,163 acres and 724 acres in the Great Oak Ranch. Which is it? Mr. Smith. From my recollection of what we put down in my testimony, it is 4,396 acres of trust land, with 695.35 as the current Great Oak Ranch that is being put into trust. Mr. Rehberg. OK. Thank you. Mr. Smith. I was just informed by my learned counsel that is correct. Mr. Rehberg. That your numbers are correct? Mr. Smith. Yes. Mr. Rehberg. Our other briefing is incorrect? OK, thank you. Mr. Smith. Again, I hesitate to say you are incorrect. I just say mine are correct. [Laughter.] Mr. Hayworth. The Gentleman from California, Mr. Issa, wanted to make a point. Mr. Issa. Thank you, Mr. Chairman. Mr. Smith, just one last follow-up. This legislation, H.R. 3476, am I to understand, though, it in no way ties the hands or does anything to limit the execution by the Bureau of Indian Affairs in reaching a final decision. Is that correct? Mr. Smith. Yes. The process that we have in place is going to go forward regardless of this bill. Mr. Issa. OK, because in crafting the bill we wanted to be respectful of your separation of powers and the job that you are already tasked by the Congress to do, and do very well. So hopefully we have constructed this in a way that, although it protects the tribe in the interim, it in no way would limit your final decision, whatever it may be. Mr. Smith. That is correct. Mr. Issa. Thank you. Thank you, Mr. Chairman. Mr. Hayworth. Thank you, Mr. Issa. Any other questions or comments from the minority side on this particular piece of legislation? If not, then, Mr. Smith, if you would address your perspective and comments on H.R. 103. Mr. Smith. OK. Actually, I will be really brief on this bill. This bill, H.R. 103, is the Tribal Sovereignty Protection Act, whose purpose is to ensure that Indian tribes are not forced to provide access to or otherwise unionize their casino employees as a condition of obtaining Federally approved Tribal-State Class III gaming compacts under the Indian Gaming Regulatory Act or IGRA. The bill in its present form amends the Act by adding a subsection which would prohibit the inclusion of provisions pertaining to labor agreements in Class III gaming compacts. It also provides that such provisions in existing compacts shall be severed and considered null and void. This legislation, if enacted, would affect the tribal-State compacting process in different ways from State to State. The Department of Interior is not prepared to speculate at this time on how those effects will change the balance of negotiations between the tribes and the States. The Department is, however, concerned about Section 11(d)(3)(D) of the bill. It would reach back into existing compacts that have already been agreed to by States and tribes and approved by the Department. This would have immediate impacts on existing labor agreements, and could raise a number of unforeseeable contract issues the Department is unprepared to discuss at this time. If you have any questions, I would be happy to answer them. [The prepared statement of Mr. Smith follows:] Statement of Wayne Smith, Deputy Assistant Secretary--Indian Affairs, U.S. Department of the Interior, on H.R. 103 Good morning, Mr. Chairman and Members of the Committee. I am pleased to be here today to provide testimony on H.R. 103, the ``Tribal Sovereignty Protection Act,'' whose purpose is to ensure that Indian tribes are not forced to provide access to or otherwise unionize their casino employees as a condition of obtaining a Federally approved Tribal-State Class III gaming compact under the Indian Gaming Regulatory Act (IGRA). The bill, in its present form, amends Section 11(d)(3) of IGRA, 25 U.S.C. 2710(d)(3), by adding a subsection which would prohibit the inclusion of provisions pertaining to labor agreements in Class III gaming compacts. It also provides that such provisions in existing compacts shall be severed and considered null and void. This legislation, if enacted, would affect the Tribal-State compacting process in different ways from state to state. The Department of the Interior is not prepared to speculate on how those effects will change the balance of negotiations between the Tribes and the States. The Department is concerned about section 11(d)(3)(D) of the bill because it would reach back into existing compacts that already have been agreed to by States and Tribes and approved by the Department. This would have immediate impacts on existing labor agreements and could raise a number of unforeseeable contract issues that the Department is not prepared to discuss. This concludes my remarks and I will be happy to answer any questions you may have. ______ Mr. Hayworth. Mr. Smith, would lack of preparation prevent you from articulating the administration's view on the role of organized labor in the tribal-State compact process? Mr. Smith. I think that is correct. Mr. Hayworth. So you are really just saying today you don't feel that you can comment, or is there a position, or is it being formulated, or you are just maintaining radio silence? Mr. Smith. Probably the latter. No, I am just kidding. We have no formal position about what part labor might play in the compacts. We do believe, however, the compacts are negotiated between the tribes and the State, and the degree to which either the tribes or the State wish to bring any other parties into or any other concerns into the compact process is theirs. So we are more mindful of the two parties that are at the table negotiating the compact, and so we are very reluctant at this time to say someone else should either have a place or not have a place. Mr. Hayworth. All right, sir. Let's turn for questions or comments to the minority side. The Ranking Member, the Gentleman from West Virginia. Mr. Rahall. Mr. Chairman, I don't have any questions right now. I would just like to ask Mr. Smith if he will be around later, after we have heard the other witnesses on this bill, or if a member of your staff will be around? Mr. Smith. I could certainly--I would be around or somebody could be around, yes. Mr. Rahall. OK. Thank you. Mr. Hayworth. Thank you, Mr. Rahall. The majority side, any questions or comments? The minority, the Gentleman from Michigan. Mr. Kildee. And I will later on be asking some questions on H.R. 103, but not at this time. Mr. Hayworth. OK. I thank you, sir. The Gentleman from Hawaii, Mr. Abercrombie. Mr. Abercrombie. Thank you. Mr. Smith, I want to make sure, are you for or against this bill? I don't mean you personally, but I mean does the administration have a position? Mr. Smith. No, we have no real position on this bill. Mr. Abercrombie. If you have no position, does that mean you are not opposing it? Mr. Smith. That means we are not opposing or supporting it. We do have some concerns with the retroactive application of one provision of the bill. Mr. Abercrombie. Doesn't it hurt your joints to be stretched that far? [Laughter.] Mr. Smith. I don't run the whole department, nor the administration. I am here to give you our position.-- Mr. Abercrombie. There is not a member in here who doesn't understand that. Thank you. Mr. Hayworth. Actually, it is a part of a cultural exchange with our friends from Switzerland, neutrality. [Laughter.] Mr. Hayworth. Other questions or comments at this point on H.R. 103 for Mr. Smith? If not, then, friend, it is time to turn to H.R. 3534. I know Mr. Carson has more than a casual interest in this. Mr. Smith. Hopefully on my third strike. This bill has a long and rather sordid legal history. I will skip over that. It is in my testimony, but the chiefs of the tribes that will come after me are much more knowledgeable than I am about that history. I will let them speak to that. What I would like to speak to is the status of the current negotiations to try to settle this case, and the Department has appointed a team to attempt to negotiate a settlement of the Court of Federal Claims cases that are currently pending. The team is composed of representatives of the BIA, the Solicitor's Office, and the Bureau of Land Management. Representatives of the team have met on numerous occasions with the attorneys of the Cherokee, Choctaw, and Chickasaw Nations to reach agreement on the support of the Department of Interior for the bill. Such discussions have centered on the valuation of elements of damages claimed by the nations. The parties are working toward an agreement as to the amount that can be recommended to Congress for settlement of the claim. While agreement has not been reached, the parties are making substantial progress on the agreement. At this time it appears there exists substantial disagreement on only one element of damages. That element is the subject of ongoing meetings between the Federal negotiating team and the nations' attorneys. I would like to emphasize here that I believe we are very close to an agreement. The Court of Federal Claims is also interested in the settlement of the pending claims, and has held a series of status conferences to ensure that settlement discussions are proceeding. The next status conference is scheduled for June 19th. We believe the Congress should not proceed in ratifying a settlement until the parties have reached agreement on all issues. We believe that continued discussion by the parties may result in a negotiated settlement between the Department and the Nations. The settlement should achieve two goals: one, resolve the financial elements; and, two, resolve the quiet title issues. In addition, the Federal negotiation team has discussed amending certain parts of the bill. The team will be working with the Committee to clarify the description of lands disclaimed, the transfer of real property interest, particularly in the areas where the navigation system was channelized across fee lands acquired by the U.S. Army Corps of Engineers, and certain other matters, including express waiver of certain future claims. This concludes my prepared statement. I would be happy to answer questions. [The prepared statement of Mr. Smith follows:] Statement of Wayne Smith, Deputy Assistant Secretary--Indian Affairs, U.S. Department of the Interior, on H.R. 3534 Good morning, Mr. Chairman and Members of the Committee. I am pleased to appear before you today concerning the Department's views on H.R. 3534, the ``Cherokee, Choctaw, and Chickasaw Nations Claims Settlement Act''. Since the subject of this legislation is pending litigation, I can only provide you with a background and status of the issue. BACKGROUND This case originated in the mid-1960's when the Cherokee, Choctaw and Chickasaw Nations (Nations) filed suit against the State of Oklahoma for a declaratory judgment regarding ownership of the Arkansas Riverbed. The case culminated in a decision by the United States Supreme Court holding that ownership of the Arkansas Riverbed remained in the Nations. See Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970). The Supreme Court did not attempt to designate the particular tracts owned by the United States in trust for the Nations. Thereafter, the United States District Court for the Eastern District of Oklahoma, held that the State of Oklahoma had no further interest in the Arkansas Riverbed. Again, there was no ruling as to the ownership of the particular tracts of land. The Court transferred the ownership of certain oil and gas leases executed by the State of Oklahoma to the Bureau of Indian Affairs (BIA) for the benefit of the Nations. See Cherokee and Chickasaw v. Oklahoma, No. 6219-Civil (Judgment filed Jan. 21, 1977) and The Choctaw and Chickasaw Nations v. the Cherokee Nation, No. 73-332-Civil (Judgment filed April 15, 1975). The Nations then sued the United States arguing that the construction of the Kerr-McClelland Navigation System was a taking by the United States of the Tribe's ownership of the riverbed. This case ultimately went to the United States Supreme Court. The Court held that the Nations' interest was subject to the navigation servitude retained by the United States. See United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987). The Court stated that the United States has the power to deepen the water or erect structures which it may believe to aid navigation. What is not directly resolved by the 1987 case is the ownership of specific tracts of dry lands owned by the Nations after avulsive changes in the river's course, as discussed by the Supreme Court in the first decision. After the 1970 decision, the United States obtained a study done by Holway and Associates, a private company located in Oklahoma City, Oklahoma. This study outlined the dry land areas that were considered to be owned by the Nations. As a result of the Holway study, the United States began leasing the minerals located in those areas. The BIA determined that there might be problems with the Holway study, and a second study was done by the Bureau of Land Management(BLM). This study, like the Holway study, examined the entire length of the riverbed. In 1989, the Nations filed two lawsuits against the United States in the Court of Federal Claims. See Cherokee Nation of Oklahoma v. United States ; No. 218-89-L (Ct.Fed.Cl.) and Choctaw and Chickasaw Nations v. United States, No. 630-89-L (Ct. Fed. Cl.), seeking damages from the United States for the failure to restore the Nations possession of the tracts claimed. The cases have been pending since that time. Quiet title lawsuits have been filed regarding certain tracts of land along the Arkansas River. The Cherokee Nation quieted title to one tract of land, in Cherokee Nation of Oklahoma v. Mathis, Case No. 87- 193-C (E.D. Okla. Judgment filed Nov. 27, 1989). This judgment quiets title in a single tract of land containing 124.942 acres in Section 9, Township 10 North, Range 24 East, of Sequoyah County, Oklahoma. The United States initiated a quiet title lawsuit covering the claim areas in two sections of the Riverbed. See United States v. Pates Farms, et al., Case No. CIV-97-685-B. This lawsuit sought to quiet title to tracts in Sections 31 and 32, Township 11 North, Range 27 East, Sequoyah County, Oklahoma. The case was dismissed by the Court on technical grounds and has not been refiled because of the pending settlement efforts. CURRENT STATUS The Department has appointed a team to attempt to negotiate a settlement of the Court of Federal Claims cases. The team is composed of representatives of the BIA, the Solicitor's Office and BLM. Representatives of the team have met on numerous occasions with the attorneys for the Cherokee, Choctaw and Chickasaw nations to reach agreement on the support of the Department of the Interior for the bill. Such discussions have centered on the valuation of elements of damages claimed by the Nations. The parties are working towards an agreement as to the amounts that can be recommended to Congress for settlement of the claim. While agreement has not been reached, the parties are making substantial progress on the agreement. At this time, it appears that there exists substantial disagreement as to only one element of damages. That element is the subject of ongoing meetings between the Federal negotiation team and the Nation's attorneys. The Court of Federal Claims is also interested in the settlement of the pending claims and has held a series of status conferences to insure that settlement discussions are proceeding. The next status conference is scheduled for June 19. We believe the Congress should not proceed in ratifying a settlement until the parties have reached agreement on all issues. COMMENTS ON H.R. 3534 We believe that continued discussion by the parties may result in a negotiated settlement between the Department and the Nations. The settlement should achieve two goals: (1) resolve financial elements, and (2) resolve quiet title issues. In addition, the Federal negotiation team has discussed amending certain parts of the bill. The team will be working with the Committee to clarify the description of lands disclaimed, the transfer of real property interests, particularly in areas where the Navigation System was channelized across fee lands acquired by the U.S. Army Corps of Engineers and certain other matters, including an express waiver of certain future claims. This concludes my prepared statement. I regret that I cannot speak more specifically on the proposed legislation due to the litigation of the matter. We look forward to working with the Committee on the settlement legislation once an agreement has been reached by all parties involved. ______ Mr. Hayworth. Thank you, Mr. Smith. The Committee is aware that the United Keetoowah Band of Cherokee has concerns about whether this bill will adequately protect its interest. To what extent has the United Keetoowah Band been involved in the development of the settlement agreement? Mr. Smith. I am not really aware of that. I can't answer that. Mr. Hayworth. Could you check on that? Mr. Smith. I can check and get back to you, I think. Sure. Mr. Hayworth. We would appreciate that. Can the administration account for or summarize the values placed on the various elements of H.R. 3534 and how these values arrive at a total of over $41 million? Mr. Smith. We have a chart I would be happy to submit to you, rather than read it on the record, if you want me to, and give you the amounts that the different positions--the amounts that were agreed to. I would be happy to submit that to you. The only thing that is outstanding, Mr. Chairman, is the sand and gravel cost, and that is the one that is still under negotiation. All the rest of them have been agreed to. Mr. Hayworth. Mr. Smith, if the United States is unable to reach a settlement with the three nations on the issues in H.R. 3534, what would be the administration's course of action? Mr. Smith. To continue litigation, but I don't believe that is what is going to happen. The litigation could go on probably 10, 15, 20 more years, and that is just not tenable for either party. Like I testified to, I believe that both the government as well as the nations are very close to settlement, and I think you will hear from the nations that that is indeed the case. Mr. Hayworth. Thank you, sir. I turn to the Ranking Member. Any questions or comments? Mr. Rahall. No, thank you. Mr. Hayworth. Any questions or comments? The Gentleman from Oklahoma, Mr. Carson. Mr. Carson. No real questions for Mr. Smith, other than to thank you for being here today and thank you for the ongoing negotiations, and I think you have answered a couple of questions I had to Mr. Hayworth, and I look forward to talking about the issue more here in a few minutes, as well. Thank you. Mr. Hayworth. I thank the Gentleman from Oklahoma, who was born in Winslow, Arizona. We always appreciate that, the Sixth District of Arizona. For purposes of full disclosure, Mr. Rahall, we had to point that out. The Gentleman from Michigan. Mr. Kildee. I will probably wait until Governor Anoatubby and Chief Smith and Chief Pyle will be testifying, and have some statements and questions at that time. Mr. Smith. Thank you. They are far more knowledgeable than I. Mr. Kildee. Thank you. Mr. Hayworth. Thank you. Any other questions or comments for Wayne? If not, then, Mr. Smith, we thank you, and we appreciate your offer to stick around or have capable folks who work with you to hang around, lend an ear and an opinion as the day continues along. Mr. Smith. Thank you, Mr. Chairman. I will get someone more capable than I to stick around. Thank you. Mr. Hayworth. Thanks very much. Now, panel three. we will call on Mark Macarro, the Chairman of the Pechanga Band of Luiseno Mission Indians, and also James P. Avery, the Senior Vice President of San Diego Gas & Electric. Gentlemen, if you would join us front and center, we would appreciate it. Again, gentlemen, we welcome you, and we reaffirm from the Chair that your entire statements will be included in the record of today's proceedings, and we would appreciate a summarization of those statements. Chairman Macarro, when you are prepared to commence, we welcome you and we look forward to your testimony. Thank you, sir. STATEMENT OF MARK MACARRO, CHAIRMAN, PECHANGA BAND OF LUISENO MISSION INDIANS Mr. Macarro. [Greetings in native language.] My name is Mark Macarro. I am the Tribal Chairman for the Pechanga Band of Luiseno Mission Indians, and I simply said greeting in our Luiseno language. Hello, and it is good to be with all of you here today. Thank you for being here, and hi to all my friends and relations from here, and fellow Indians. Mr. Chairman, I want to thank also Congressman Darrell Issa for introducing this bill, and Congresswoman Bono and Congressman Calvert for cosponsoring this bill on behalf of our people. With all my heart, I ask for your full support of H.R. 3476. Simply, H.R. 3476 would temporarily protect unique and sacred lands called the Great Oak Ranch. While we want the Great Oak protected forever, H.R. 3476 just keeps these special lands from utility line condemnation until a final decision is made by the U.S. Secretary of Interior on our pending fee to trust application. Last May we culminated a 20-year effort to purchase the 697 acres now known as the Great Oak Ranch, to join together the two existing portions of our reservation. Our people have worked long and hard over many years to reacquire these ancestral lands, so we filed an application with Interior through the BIA to have the Great Oak Ranch placed into trust as part of our existing reservation. For the people of Pechanga, returning ancestral lands to our reservation is a duty that transcends easy expression by me here today. For example, in 1875 our last aboriginal village for our people, we were the subject of an eviction through a Federal decree of ejectment. It was a forced eviction that took place in the Temecula Valley. And for 7 years, until the establishment of our reservation in 1882 by executive order, we had no lands. So the rugged, undeveloped landscape of the Great Oak Ranch is rich with spiritual, cultural, and archaeological resources. These lands are where the Pechanga people came into being, and these lands are where the Pechanga people will always be. These lands are likewise important to the entire Temecula community and valley, and home to many irreplaceable resources, both cultural and natural. These ranch lands include the former home of Erle Stanley Gardner, author of the famed Perry Mason novels. And the centerpiece of these lands is its namesake, the Great Oak. Dated by UCLA at more than 1,500 years, it is heralded as the oldest known coastal live oak, Quercus agrifola. It stands majestically at more than 96 feet in height with a massive trunk nearly 20 feet in circumference. Each branch, larger than most live oak trunks, rises to touch the sky and then bends down to touch the earth, creating a natural, serene, cathedralesque sanctuary. It was underneath these great branches that Pechanga members held sacred ceremonies eons ago, and now at the dawn of a new century the Pechanga people are once again gathering under the Great Oak canopy. Just days ago we were notified by the BIA Pacific Regional Office of their intent to take the Great Oak Ranch into trust for the Pechanga people, acknowledging the following, and I quote: ``The sole purpose of the acquisition is the preservation and protection of Luiseno people's natural and cultural resources. The Pechanga Band is committed to protecting and preserving the invaluable and irreplaceable cultural resources of the Pechanga and Luiseno people. The cultural resources located within the Great Oak Ranch provide the Pechanga Band with unique opportunities to protect and preserve such resources on property owned by the Band itself.'' These words from the Federal Government validate the emotion in our hearts about the Great Oak Ranch, and that it should come home to its native family. It is our understanding, however, that this decision by the BIA will be appealed by Sempra Energy so that they can run a massive power line within feet of the Great Oak Ranch itself. And while Interior's Notice of Intent specifically states, I quote, ``Sempra Energy's proposed route across the Great Oak Ranch is only one of several possible routes for a new 500,000- volt power line,'' Sempra has relentlessly pressed for this route. They have indicated to the court, the Department of Interior, and the public that they will appeal the proposed Notice of Decision, and we know these precious lands are vulnerable to their condemnation unless you, who are charged with the protection of America's natural wonders and America's first people, act to preserve the status quo. Just as the Great Oak does not stand alone, the people of Pechanga do not stand alone. Elected local officials, Republicans and Democrats, business and community leaders, the elderly and Boy Scouts, have all stepped forward to stand with this Temecula Valley gem. Our Members of Congress, Mr. Issa, Ms. Bono, Senators Diane Feinstein, Barbara Boxer, and our State legislators, including State Senator and Republican leader Jim Brulte, Assemblyman Dennis Hollingsworth, and our Lieutenant Governor Cruz Bustamente, have all stepped forward, and we now ask you to step forward. Stand with them, stand with us, and stand with the Great Oak. And Mr. Calvert, I add you to the list, too. Thank you. And I thank the Committee. Thanks. [The prepared statement of Mr. Macarro follows:] Statement of The Honorable Mark Macarro, Chairman, Pechanga Band of Luiseno Mission Indians Mr. Chairman, I thank you and the other distinguished members of the Committee for the opportunity to present testimony on behalf of the Pechanga Band of Luiseno Mission Indians (``Tribe'' or ``Pechanga Band''). I am here today to respectfully ask your support of H.R. 3476 which, if passed into law, would protect the Great Oak Ranch property from condemnation until the Secretary of the Interior makes a final decision regarding our pending fee to trust application for that land. In this testimony, I will describe the efforts that my Tribe has taken to return and protect the Great Oak Ranch as part of the Pechanga Indian Reservation. I will also describe the unique and irreplaceable resources of this land, including the 1500 year old Great Oak, as well as other cultural, religious, archaeological and biological features. I will outline the unanimous local support that we have received for our trust application, and the ongoing efforts of San Diego Gas & Electric Company (``SDG&E'') to impede and threaten the Great Oak Ranch with continuing threats of appeals and condemnation of our property. THE PECHANGA TRIBE'S FEDERAL PETITION TO TAKE THE GREAT OAK RANCH PROPERTY INTO TRUST AS A LEGACY FOR THE TRIBE AND ITS MEMBERS On June 29, 1882, an Executive Order issued by the President of the United States established the Pechanga Indian Reservation (``Pechanga Reservation''), which is located within the ancestral and aboriginal lands of the Tribe. Additional acreage has been added over the years, for a total of 4,396.44 acres. The Pechanga Reservation consists of Federal trust property held for the beneficial use of the Tribe. The Reservation is intended to be a permanent homeland in order to further the Federal policy of Indian self-determination, including economic development and self-sufficiency. On May 15, 2001, the Tribe acquired thirty-one parcels totaling 688.73 acres, and owns the property in fee. This land is located adjacent to the Reservation. These parcels (also referred to as the ``Great Oak Ranch'' property) are located within portions of Sections 28, 29, 32 and 33, Township 8 South, range 2 West, San Bernardino Base Meridian, in Riverside County, California. The property is located approximately 5 miles southeast of Temecula, and is adjacent to the boundary of San Diego County, California. As part of its trust relationship with Indian tribes, the United States may take title to property in trust for Federally-recognized Indian tribes pursuant to the provisions of Section 5 of the Indian Reorganization Act, 48 Stat. 985, Act of June 18, 1934, 25 U.S.C. Section 465, and Section 203 of the Indian Land Consolidation Act of 1983, 25 U.S.C. Section 2201, et seq., as amended. The United States Department of Interior has adopted regulations that specify the procedures and substantive criteria used to process tribal applications to take land into trust for the benefit of Federally-recognized Indian tribes. See 25 Code of Federal Regulations Part 151. On December 31, 2000, the General Council of the Tribe, consisting of all adult members of the tribe, duly adopted Resolution 001231-C. This resolution directed the Tribal Chairman to submit an application to the United States to take the Great Oak Ranch property into trust. This resolution also directly requested that the Secretary approve the application. [See Exhibit A] For the people of Pechanga, returning these lands to our reservation is paramount. The rugged, undeveloped landscape of the Ranch is rich with spiritual, cultural, and archaeological sites. This Ranch is Pechanga's legacy. In June 2001, the Tribe submitted an application to the United States Department of the Interior, pursuant to regulations found at 25 CFR 151 et seq., to take the Great Oak Ranch property into trust by the United States for the benefit of the Tribe. As outlined in the application, the Tribe's intended use of the property involves the continuation of existing agricultural activities, maintenance and use of three existing residences on site, and maintenance and preservation of the existing Luiseno Indian cultural resources found throughout the site. [See Exhibit B] Our property is home to many irreplaceable resources--both cultural and natural. The primary goal in acquiring the parcels of land covered by the trust application is to preserve and protect the ancestral homelands and cultural resources of the Tribe, including many sacred sites, archeological sites, and items. These ranchlands also include the historically significant former home of Erle Stanley Gardner, author of the famed Perry Mason novels. Yet the centerpiece of these lands is its namesake--The Great Oak. The Great Oak is believed to be more than 1500 years old and is heraldedas the oldest known coastal live oak tree. It stands majestically at more than 96 feet in height with a massive trunk nearly 20 feet in circumference. Each branch, larger than most live oak trunks, rise up toward the sky and then come down to land--creating a natural, serene sanctuary. It was underneath these great branches that Pechanga members held sacred ceremonies eons more than a hundred years ago. As we sit at the dawn of a new century, the people of Pechanga are once again gathering under the canopy of the Great Oak. We believe the resources found on the Great Oak Ranch should be preserved and remain within the Ranch. The sole purpose of the acquisition is the preservation and the protection of Luiseno people's natural and cultural resources. The Pechanga Band is committed to protecting and preserving the invaluable and irreplaceable cultural resources of the Pechanga and Luiseno people. The cultural resources located within the Great Oak Ranch provide the Pechanga Band with the unique opportunity to protect and preserve such resources on property owned by the Tribe itself. These words spoken by the Federal Government validate the emotion in our hearts that the Great Oak Ranch should come home to its native family. Once the Great Oak Ranch property is accepted into trust by the United States, it will become part of the Pechanga Reservation. The Tribe will exercise powers of self-government, including civil regulatory jurisdiction, to protect the unique archaeological, biological and cultural resources, as well as the historic and sacred sites on the Great Oak Ranch. THE TRIBE RECEIVES UNANIMOUS LOCAL SUPPORT FOR ITS TRUST APPLICATION The people of Pechanga do not stand alone in their commitment to protect the Great Oak Ranch. From elected officials to business and community leaders, many have stepped forward to ensure the preservation of this Temecula Valley gem. Our Federal representatives in Congress Darrell Issa and Mary Bono; Senators Barbara Boxer and Dianne Feinstein; representatives from the state including State Senator Jim Brulte and Assemblyman Dennis Hollingsworth; and the Save South Riverside County Association, which represents the citizens of Riverside County, and the Temecula Valley Winegrowers Association, a vital part of the Valley's tourism and business sectors. Support for the Great Oak Ranch has transcended traditional geographic and political lines and serves as a symbol for all the people of Temecula Valley. [See Exhibit C] SDG&E'S THREATENED CONDEMNATION ACTION AND FURTHER LITIGATION The Tribe needs legislation to protect the fee-to-trust application process from SDG&E's threatened use of eminent domain powers. The Tribe is concerned that SDG&E continues to threaten the initiation of condemnation proceedings against the Great Oak Ranch property, even though SDG&E has not received a determination from the California Public Utilities Commission that the Valley Rainbow Interconnect Project is necessary or in the public interest. On March 23, 2001, SDG&E filed an Application for a Certificate of Public Convenience and Necessity and its Proponent's Environmental Assessment for the Valley-Rainbow 500-kilovolt (kV) Interconnect Project with the California Public Utilities Commission (``CPUC''). The CPUC application identifies both a preferred and proposed alternative route for the transmission line. The route preferred by SDG&E is along the easternmost and a portion of the southern-most sides of the Pechanga Indian Reservation, adjacent to the Cleveland National Forest. One of SDG&E's seven ``alternative'' routes pass through the Great Oak Ranch property, threatening several archaeological sites and the root system of the Great Oak tree. California public utilities have historically had broad powers of eminent domain. This has been necessary so that utilities could construct necessary improvements to their utility systems. However, as the concept of utility deregulation developed in California, the California Legislature determined that certain limitations would need to be placed upon the utilities' use of this power of eminent domain, in order to prevent the inappropriate use of this power as a competitive tool. In order to prevent the abusive use of this power, the California Legislature enacted Public Utilities Code Section 625. [See Exhibit D] As enacted, the law requires (with certain limited exceptions) public utilities to obtain prior approval by the CPUC before any eminent domain powers may be exercised by a public utility for competitive purposes. The section specifically provides a procedure for the review by the CPUC of condemnation proceedings initiated by public utilities. The public utility must file a petition or complaint, and provide personal notice to the owners of the property that is to be condemned. Before making a finding pursuant to this subdivision, the Commission must conduct a hearing in the local jurisdiction that would be affected by the proposed condemnation. SDG&E has argued that this section does not limit its ability to condemn the Great Oak Ranch. Last year, SDG&E initiated pre- condemnation proceedings in Riverside Superior Court to survey the property of 320 property-owners along a 1,000 foot-wide corridor for its proposed alternative route. In this recent related litigation against 320 landowners, SDG&E argued that the proposed Rainbow-Valley Interconnect Project is not a ``competitive service,'' and therefore a Commission finding under Section 625 (a)(1)(A) is not required. SDG&E has also argued that the Project is required to fulfill a CPUC ordered obligation to serve (that would satisfy the exception to the requirement for a hearing found in (a)(1)(B) of Section 625). Both assertions are, at best, premature, as the CPUC is considering SDG&E's Application for a Certificate of Public Convenience and Necessity at this time. SDG&E, has repeatedly threatened and continues to threaten the initiation of eminent domain proceedings for purposes of a right of way. In a August 7, 2001, letter from Carolyn F. McIntyre, SDG&E Vice- President to California Assemblymember Rod Pacheco, SDG&E took the position that CPUC approval of the project was not a condition precedent to bringing a condemnation action [See Exhibit E]: In response to the legal questions raised in your letter, SDG&E has the legal authority to enter private land to conduct these activities [notify 320 property owners along a 1,000 foot wide transmission line study corridor] before the CPUC approves the project. In Pacific Gas & Electric Co. v. Parachini (1972) 29 Cal. App. 3d 159, 166, the court stated that: ``...a certificate from the Public Utilities Commission is not a condition precedent to the acquisition of property by a regulated utility.'' Similarly, in Pacific Gas & Electric Co. v. Hay (1977) 68 Cal. App. 3d 905, 912, the court reiterated that ``...in any event, Parachini supports the view that agency approval is not a condition precedent to the commencement of a condemnation proceeding....'' On March 21, 2002, the Bureau of Indian Affairs, Pacific Regional Office issued a notice of decision to have the Great Oak Ranch property taken into trust for the Tribe (``Notice of Decision''). [See Exhibit F] The Notice of Decision found that the Tribe established the need for additional land for purposes of exercising governmental jurisdiction and assuring the long-term protection of the Luiseno Mission Indians' cultural resources and in the enhancement of tribal self-determination. The Notice of Decision also found that the Tribe established the need to protect the biological resources of the Great Oak Ranch property, in addition to the Great Oak, elderberry bushes, buckwheat and sage species. The Notice of Decision noted that ``Sempra and its subsidiary, SDG&E, oppose the acquisition because the subject property is a 'possible' route for a new 500,000-volt power line,'' but granted the Tribe's application because the Tribe had made the required showing of need under the regulatory process in 25 CFR Part 151. It is our understanding that this decision by the BIA will be appealed by SDG&E given the possible routing over the Great Oak Ranch for its proposed Valley-Rainbow Interconnect project. [See Exhibit G] After devoting years to secure these lands we are disappointed that our efforts may be further delayed. The latest evidence of SDG&E's intentions were outlined in a March 29, 2002, letter from Steven C. Nelson, Esq. to Michelle Cooke, Administrative Law Judge. In that letter, SDG&E stated its position to oppose the Tribe's trust application by appealing through the administrative process: In these appeals, SDG&E will explain, as it has done so in its other filings at BIA, that SDG&E is not opposed to the land being taken into trust so long as a right-of-way is preserved for the Project. SDG&E also will reiterate that it remains open to further discussions of these issues with the Tribe. SDG&E continues to threaten more litigation and the right to bring a condemnation action against the Tribe for the power to take a right of way corridor over the Great Oak Ranch property. The Tribe needs this legislation to preserve the status quo until its trust application has been fully decided on the merits, and all appeals have been exhausted. CONCLUSION Mr. Chairman and Members of this Committee, thank you for granting me the opportunity to represent the Pechanga Band of Luiseno Indians today. The Great Oak Ranch represents the return of our homelands and its resources to our people and our community. But most importantly, protection of the Great Oak Ranch allows us to preserve and share Pechanga's history with generations to come. I respectfully request the expeditious passage of H.R. 3476. ______ Mr. Hayworth. Mr. Chairman, we thank you for your testimony and your awareness of the atmospherics with us on the dais. Mr. Avery, welcome. Your testimony, please, sir. STATEMENT OF JAMES P. AVERY, SENIOR VICE PRESIDENT, SAN DIEGO GAS & ELECTRIC Mr. Avery. Thank you. This is an emotional issue, there is no doubt about it, but in trying to sum up my testimony, SDG&E is trying to preserve reliability that we provide to the people of Southern California. The region of San Diego is an area that is highly constrained. We rely upon two transmission corridors, one that extends to the east over toward Palo Verde nuclear generating plant, one that extends up to the north through the San Onofre nuclear generating facility. Essentially, we are in a bottlenecked area. There are no other routes available. We have identified three potential routes. One of those routes would require us to work or to go through the Pechanga Reservation. In our early discussions with them, they have told us they are opposed to that route. We have identified two other routes. One of those would go through the Great Oak Ranch. We did also have one other route which would require us to condemn homes and businesses. Now, we are in a situation where in moving forward on the Great Oak Ranch, it is not something that we want to in any way interfere with their right to take this land into trust. In fact, we are supportive of that. All we are asking for is that a small piece of this land be set aside until a final determination is made by the Public Utilities Commission that the need is verified and that we can move forward. We have not taken any action to condemn this land, nor will we take any action until the State determines there is a need and tells us to move forward with that. Any action under this bill would essentially circumvent or override the State's authority to move forward with condemnation. Now, as for the tree itself, it is a beautiful tree. I am not going to deny that. It is magnificent. Now, as for where we would locate our line, we are more than willing to work with the Pechanga Reservation and anyone else who can give us the ability to move the line further away. As to what we have proposed, we are roughly a tenth of a mile from the tree. We do not believe we will have any impact on this at all. I think I would also like to point out the fact that essentially we believe this bill is not necessary. We believe that we should be allowed to continue. Allow the Indians to move forward with their request to take this land into trust. As my colleague here has pointed out, we will be appealing the BIA's action to take this into trust, but it is not because we don't think the land should go into trust. All we are asking for is a corridor through this land, and that is it. Thank you. [The prepared statement of Mr. Avery follows:] Statement of James Avery, Senior Vice President, San Diego Gas & Electric, on H.R. 3476 Good afternoon, my name is Jim Avery, Senior Vice President of San Diego Gas & Electric (SDG&E). I am responsible for managing all aspects of electric transmission for SDG&E, a distribution utility that provides service to 3 million customers through 1.3 million electric meters and 775,000 natural gas meters in San Diego and southern Orange counties. SDG&E is a California Public Utilities Commission (CPUC)- regulated subsidiary of Sempra Energy, a San Diego-based Fortune 500 energy services holding company. I appreciate the opportunity to provide testimony on H.R. 3476. SDG&E opposes H.R. 3476. If enacted into law, this legislation would preempt the laws of the State of California by overriding the state's authority to condemn and compensate private landowners for land that is needed for a public purpose. More specifically, H.R. 3476 would exempt a parcel of private land that the Pechanga Band of Luiseno Mission Indians owns in fee from the operation of state condemnation law until a final decision is reached on the Tribe's request to take the land in question into trust. It would have the practical effect of blocking indefinitely SDG&E's construction of the Valley Rainbow Interconnect, a major new transmission project that will serve as a critical link in the Southern California electricity system, providing increased reliability and access to electricity supplies for customers throughout southern California. H.R. 3476's proposed preemption of state law authorities raises serious Federalism concerns that go beyond the facts of this case. California has only recently been able to end the need for instituting blackouts and bring spiraling prices under control, and has a long way to go before it will completely emerge from a severe energy crisis that threatened the State's economic future and well being. Although the crisis was caused by many factors, a lack of transmission and an insufficient supply was identified as a leading contributor. Constraints on electricity production and transmission in California continue to create uncertainties in the marketplace; passage of H.R. 3476 would send the wrong message to citizens and businesses in California. The bill would hold out a single parcel as being above state law and off-limits for a critical right-of-way that is needed to help resolve California's uncertain electricity situation. In addition to raising serious questions about the relative role of Federal and state authorities in installing needed electricity infrastructure in California and other states, H.R. 3476 represents an unnecessary and unwise overreaction to a land use conflict between the Tribe's desire to convert fee land into trust land and SDG&E's need to obtain a suitable right-of-way for its Valley Rainbow Interconnect project. This bill is the latest in a series of attempts to legislatively circumvent or influence the regular process of administrative review and decision. SDG&E does not oppose the Tribe's request to take the Great Oak Ranch property into trust, so long as a right-of-way corridor is identified and set aside for public use at the same time. The Company has made it clear that it is interested in moving forward with a consensual resolution of its land use conflict with the Tribe; there is no need to preempt a condemnation action that may never arise. The siting of this line would not be an act by SDG&E alone, but would be 