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Santa Ana, Pueblo of v. United States

ELR Citation: 30 ELR 20658
Nos. No. 99-5105, 214 F.3d 1338/(Fed. Cir., 06/01/2000)

The court holds that the U.S. Army Corps of Engineers violated the Fifth Amendment by appropriating rock and gravel from tribal land near the Jemez Canyon Dam and Reservoir in New Mexico in connection with a dam reconstruction project. A 1978 Act of Congress declared that the 2,240 acres of land surrounding the dam would be held in trust by the United States for the benefit of a Native American tribe. Subsequently, while building the dam, the Corps used substantial amounts of rock and fill material from the Pueblo lands surrounding the dam. Such material has commercial value. The court first holds that the Corps' appropriations of rock and fill material from tribal lands constituted a taking that demands just compensation to the tribe. The 1978 Act expressly states that all right and title to minerals on the lands at issue are held in trust by the United States for the tribe. Further, although the 1978 Act was subject to the terms of public land order (PLO) 873 that removed the lands at issue from appropriation under public land laws, the 1978 Act did not reserve for the United States the right to use minerals from the land. The 1978 Act makes clear that the 2,240 acres covered by PLO 873 are no longer subject to the public land laws, but are held in trust for the tribe. Thus, Congress cannot have meant that the PLO's prohibition against appropriation under the public land laws was to continue. The entire purpose of the 1978 Act was to remove the lands from the public domain and convey them to the tribe, thus obviating the need for the literal language of PLO 873. Nonetheless, Congress must have meant something when it subjected the 1978 Act to the PLO, but for purposes of this case the nature of the interest need not be decided.

Counsel for Plaintiff
Richard W. Hughes
Rothstein, Donatelli, Hughes, Dahlstrom, Cron & Schoenburg
P.O. Box 8180, Santa Fe NM 87504
(505) 988-8004

Counsel for Defendant
Thomas L. Halkowski
Environment and Natural Resources Division
U.S. Department of Justice, Washington DC 20530
(202) 514-2000

Before Bryson and Linn, JJ.