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Pueblo of Jemez v. United States

United States District Court, D. New Mexico

September 27, 2019

PUEBLO OF JEMEZ, a federally recognized Indian Tribe, Plaintiff,
v.
UNITED STATES OF AMERICA, Defendant, and NEW MEXICO GAS COMPANY, Defendant-in-Intervention.

          Frederick R. Petti Petti and Briones, PLLC Scottsdale, Arizona --and-- Thomas E. Luebben, Jr. Law Offices of Thomas E. Luebben Sandia Park, New Mexico --and-- Randolph H. Barnhouse Kelli J Keegan Justin J. Solimon Christina S. West Karl E. Johnson Veronique Richardson Dianna Kicking Woman Tierra Marks Michelle T. Miano Barnhouse Keegan Solimon & West LLP Los Ranchos de Albuquerque, New Mexico Attorneys for the Plaintiff

          Jeffrey Wood Acting Assistant Attorney General Peter K. Dykema Matthew Marinelli Jacqueline M. Leonard Amarveer Brar Kenneth Rooney Kristofor R. Swanson Natural Resources Section Environment & Natural Resources Division United States Department of Justice Washington, D.C. Attorneys for Defendant United States of America

          Kirk R. Allen Elizabeth Reitzel Miller Stratvert P.A. Albuquerque, New Mexico Attorneys for the Intervenor Defendant

          MEMORANDUM OPINION, FINDINGS OF FACT, CONCLUSIONS OF LAW, AND ORDER [1]

         THIS MATTER comes before the Court on the bench trial held on October 29-November 20, 2018; November 29-November 30, 2018; December 3, 2018; December 5, 2018; and December 13, 2018. The primary issue is whether Plaintiff Pueblo of Jemez has the exclusive right to use, occupy, and possess the lands of the Valles Caldera National Preserve (“Valles Caldera”) pursuant to its allegedly unextinguished and continuing aboriginal title to those lands. The Court concludes that Jemez Pueblo has not established aboriginal title to the Valles Caldera. Although the evidence proves that Jemez Pueblo has actually and continuously used and occupied the Valles Caldera for a long time, the evidence also shows that many Pueblos and Tribes also used the Valles Caldera in ways that defeat Jemez Pueblo's aboriginal title claim.

         FINDINGS OF FACT

         All parties have submitted proposed findings of fact. See Plaintiff's, Defendant's, and Defendant-In-Intervention New Mexico Gas Company's Joint Proposed Findings of Fact and Conclusions of Law, filed April 15, 2019 (Doc. 384)(“Joint Proposed Findings”); Plaintiff Pueblo of Jemez's Proposed Findings of Fact, filed April 15, 2019 (Doc. 388)(“Jemez Pueblo's Proposed Findings”); United States' Proposed Findings of Fact, filed April 15, 2019 (Doc. 386)(“United States' Proposed Findings”). The Court has carefully considered all three sets of proposed findings and accepts some of those findings, rejects some, and finds some facts that no party brought to its attention. The Court sets forth its findings below.[2]

         1. The Valles Caldera Geology.[3]

         1. The Valles Caldera is a volcanic crater in the center of the Jemez Mountains, State of New Mexico. See Trial Transcript at 75:1-5 (taken Oct. 29, 2018), filed December 20, 2018 (Doc. 337)(“Oct. 29 Tr.”)(Fogleman); Pueblo of Jemez Expert Witness Report by William Fogleman at 4-5 (undated), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. 187 (“Fogleman Report”).

         2. Approximately 1.2 million years ago, a series of volcanos erupted, which spread ash and pyroclastic flow[4] that drained out the top part of the magma chamber.[5] See Oct. 29 Tr. at 75:1-13 (Fogleman); Fogleman Report at 4; Pueblo of Jemez v. United States, Memorandum Opinion and Order at 2 n.1, filed October 25, 2018 (Doc. 317)(“Oct. 25 MOO”), 350 F.Supp.3d 1052, 1056 n.1 (D.N.M. 2018)(Browning, J.).

         3. Volcanologists classify the Valles Caldera as a young caldera.[6] See Oct. 29 Tr. at 75:1-2 (Fogleman); Fogleman Report at 4.

         4. The Valles Caldera is an active volcano. See, e.g., Oct. 29 Tr. at 75:1-2 (Fogleman); Fogleman Report at 4-5.

         5. The volcano's upper magma chamber lacked magma, which effected a collapse that resulted in the empty crater that today is known as the Valles Caldera. See Oct. 29 Tr. at 75:1-13 (Fogleman); Fogleman Report at 4-5; Pueblo of Jemez v. United States, Oct. 25 MOO at 2 n.1, 350 F.Supp.3d at 1056 n.1.

         6. After the magma chamber collapsed, a lake formed over the caldera floor. See Oct. 29 Tr. at 75:25-76:5 (Fogleman); Fogleman Report at 5.

         7. The lake drained from the caldera when the caldera's southwest rim eroded. See Oct. 29 Tr. at 76:20-25 (Fogleman).

         8. The caldera lake's drainage helped to form the Jemez River valley. See Oct. 29 Tr. at 76:22-77:11 (Fogleman); Fogleman Report at 7.

         9. The caldera rim's southwest region is the caldera base's lowest elevation. See Oct. 29 Tr. at 77:12-19 (Fogleman); id. at 85:5-12.

         (Image Omitted)

         10. The Jemez River headwaters are in the Valles Caldera. See Trial Transcript at 1813:5-6 (taken Nov. 6, 2018), filed January 15, 2019 (Doc. 343)(“Nov. 6 Tr.”)(Ferguson).

         11. The East Fork Jemez River waters, which include Jaramillo Creek, La Jara Creek, Redondo Creek, Rito de los Indios, San Antonio Creek, and Sulphur Creek, flow into the Jemez River. See Fogleman Report at 7.

         12. Springs, streams, and rivers are an expression of groundwater elevation. See Oct. 29 Tr. at 84:12-24 (Fogleman).

         13. A spring or river is where groundwater is exposed to the land surface, and such areas are marshy. See Oct. 29 Tr. at 84:12-24 (Fogleman).

         14. The caldera rim is approximately twelve to thirteen miles in diameter. See Oct. 29 Tr. at 76:12-15 (Fogleman); Fogleman Report at 4.

         15. Redondo Peak is a resurgent magma dome that formed when magma pushed up the caldera floor. See Oct. 29 Tr. at 75:25-76:5 (Fogleman); id. at 85:13-22 (Fogleman); Fogleman Report at 5.

         16. The caldera's elevation ranges from 7, 000 feet in the southwest region to 11, 254 feet at Redondo Peak.[8] See Oct. 29 Tr. 77:12-19 (Fogleman); Fogleman Report at 4.

         17. The Valles Caldera includes four of Merriam's life-zones[9]: (i) the Subalpine Zone at 9, 500 to 11, 500 feet, which has cooler temperatures, and allows for Spruce trees and Fir forests, and wildlife that includes bighorn sheep and unique small animal species which tend to live at higher elevations; (ii) the Coniferous Forest Zone at 8, 500 to 9, 500 feet, which is the caldera's predominant zone and consists of hydrologic features and wildlife that includes beavers, raccoons, black bear, and elk; (iii) the Mountain Transition Zone at 7, 000 to 8, 500 feet, which permits predominately Ponderosa pine and Douglas fir, and wildlife that includes mule deer and horned owl; and (iv) the Grassland/Woodlands Zone at 4, 500 to 7, 000 feet, which permits tall grasslands and wildlife that includes turkey, jackrabbits, foxes, and mountain lions. See Oct. 29 Tr. at 79:12-82:4 (Fogleman); Fogleman Report at 5-6.

         18. Most of the Valles Caldera is inside the caldera rim, including four high-mountain valleys and at least ten volcanic domes, which are located within the Valles Caldera's exterior boundaries as Congress established pursuant to the Valles Caldera Preservation Act, 114 Stat. 598. See Valles Caldera Preservation Act of 2000, 16 U.S.C. §§ 698v-698v-10 (repealed 2014)(“Preservation Act”).[10]

         2. Valles Caldera Conveyances.[11]

         19. When the Treaty of Guadalupe Hidalgo ended the Mexican-American War in 1848, the United States formally acquired New Mexico, which was subsequently organized under a territorial government. See Kurt Anschuetz and Thomas Merlan, More Than a Scenic Mountain Landscape: Valles Caldera National Preserve Land Use History 27 (dated 2007), admitted October 29, 2018, at trial as United States' Ex. DX-KX (“VCNP Land Use History”).

         20. In the Act of June 21, 1860, 12 Stat. 71, Congress authorized Luis Maria de Baca's heirs to select up to five square tracts of vacant land within the New Mexico Territory totaling up to 496, 447 acres.[12] See Act of June 21, 1860, 12 Stat. 71 (“1860 Act”); Trial Transcript at 3516:17-18 (taken Nov. 15, 2018), filed February 11, 2019 (Doc. 357)(“Nov. 15 Tr.”)(García y Griego); Pueblo of Jemez Expert Witness Report by Terence Kehoe at 10 (dated March 23, 2018), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. 193 (“Kehoe Report”).

         21. In December, 1860, the Baca heirs selected their first parcels -- known as “Baca Location No. 1” -- an area totaling approximately 99, 289 acres of land in and adjacent to the Valles Caldera. Pueblo of Jemez v. United States, Oct. 25 MOO at 7, 350 F.Supp.3d at 1060 (citing United States v. Redondo Dev. Co., 254 F. 656, 657 (8th Cir. 1918)).

         22. On September 30, 1876, the General Land Office approved the first Baca Location No. 1 survey. See Surveyor General's Office, Santa Fe, New Mexico, Field Notes of the Survey of Baca Location No. 1 at 15 (dated Sept. 30, 1876), admitted October 29, 2018, at trial as United States' Ex. DX-Q.

         23. In January, 1899, the District Court of the County of Bernalillo, Territory of New Mexico, ordered Baca Location No. 1's sale at public auction to the highest bidder. See Kehoe Report at 13.

         24. On March 18, 1899, the District Court of the County of Bernalillo, Territory of New Mexico approved Baca Location No. 1's sale to Frank Clancy, who on the same day sold Baca Location No. 1 to the Valles Land Company, which Mariano Otero and his son owned. See Kehoe Report at 13; Order Approving Report and Confirming Sale, Whitney v. Otero at 1-2 (dated March 18, 1899), admitted October 29, 2018, at trial as United States' Ex. DX-Y; Bargain & Sale Deed, F. Clancy to Valles Land Co. at 100 (dated March 18, 1899), admitted October 29, 2018, at trial as United States' Ex. DX-X.

         25. On October 16, 1909, the Valles Land Company deeded Baca Location No. 1 to the Redondo Development Company, which concluded its purchase in 1913 after completing a series of installment payments totaling $247, 512.00. See Warranty Deed, Valles Land Co. to Redondo Development Co. at 102 (dated Oct. 16, 1909), admitted October 29, 2018, at trial as United States' Ex. DX-AH; Deed of Trust, Redondo Development Co. to W. Strickler, Trustee for the Valles Land Co. at 103 (dated Oct. 16, 1909), admitted October 29, 2018, at trial as United States' Ex. DX-AH; Deed of Release, W. Strickler, Trustee, to Redondo Development Co. at 104 (dated Jan. 27, 1913), admitted October 29, 2018, at trial as United States' Ex. DX-AH; Trial Transcript at 3991:19-3993:3 (taken Nov. 16, 2018), filed February 11, 2019 (Doc. 358)(“Nov. 16 Tr.”)(Kehoe).

         26. On December 14, 1918, the Redondo Development Company, and Frank and George Bond, entered into a memorandum of agreement to sell Baca Location No. 1 for $400, 000.00 through a series of installment payments. See Mem. of Agreement Between Redondo Development Co. and Frank and G. Bond for the Sale of Baca Location No. 1 at 276-81 (dated Dec. 14, 1918), admitted November 16, 2018, at trial as United States' Ex. DX-DJ; Nov. 16 Tr. at 3993:4-3995:16 (Kehoe)

         27. The Baca Location No. 1 sales agreement excluded the tract's forest resources, reserving to Redondo Development and its successors the right to remove and sell all timber for a ninety-nine-year period. See Mem. of Agreement Between Redondo Development Co. and Frank and G. Bond for the Sale of Baca Location No. 1 at 276-81; Nov. 16 Tr. at 3993:4-3995:16 (Kehoe).

         28. The Bonds assumed possession of Baca Location 1 on January 1, 1919. See Indenture Between Redondo Development Co. and George and Frank Bond at 22-25 (dated April 8, 1926), admitted October 29, 2018, at trial as United States' Ex. DX-BC.

         29. On April 8, 1926, the Redondo Development Company's president signed an indenture conveying Baca Location No. 1, with timber and one-half of all minerals excepted, to George and Frank Bond. See Indenture Between Redondo Development Co. and George and Frank Bond at 22-25.

         30. From 1954 to 1963, Frank and George Bond's successors-in-interest leased Baca Location No. 1 to outside ranchers. See Pueblo of Jemez v. United States, Oct. 25 MOO at 11 n.7, 350 F.Supp.3d at 1062 n.7 (citing Kristen K. de Graauw et al., Historical Dendroarchaeology of Two Log Structures in the Valles Caldera National Preserve, New Mexico, USA, 32 Dendrochronologia 336, 337 (2014)(“Historical Dendroarchaeology”)).

         31. In 1963, James Patrick Dunigan purchased Baca Location No. 1 from Frank and George Bond's successors-in-interest. See Pueblo of Jemez v. United States, Oct. 25 MOO at 11 n.7, 350 F.Supp.3d at 1062 n.7 (citing Historical Dendroarchaeology at 337).

         32. On July 25, 2000, then-President of the United States William Jefferson Clinton signed the Preservation Act, thereby establishing the Valles Caldera National Preserve. See Pueblo of Jemez v. United States, Oct. 25 MOO at 11, 350 F.Supp.3d at 1062 (citing Pueblo of Jemez v. United States, 790 F.3d 1143, 1149-50 (10th Cir. 2015)).

         33. The Preservation Act authorized the Secretary of Agriculture to purchase Baca Location No. 1 from the Dunigan family “to protect and preserve scientific, scenic, geologic, watershed, fish, wildlife, historic, cultural, and recreational values . . . and to provide for multiple use and sustained yield” of its renewable resources. 16 U.S.C. §§ 698v-2, -3. See Pueblo of Jemez v. United States, Oct. 25 MOO at 11, 350 F.Supp.3d at 1062.

         34. A high-pressure natural gas pipeline, together with its appurtenances and supporting facilities (collectively, the “Pipeline”), is located within the Valles Caldera. See Order Granting Defendant-in-Intervention New Mexico Gas Company's Unopposed Motion for Order Approving Stipulations of All Parties Regarding Easement Owned by New Mexico Gas Company at 2, filed December 19, 2016 (Doc. 104)(“Easement Order”).

         35. The United States' action in United States v. 49.77 Acres of Land, more or less, in Sandoval County, New Mexico, No. CIV 99-0774 JP\DJS (D.N.M. Oct. 18, 1999)(Parker, J.), condemned a perpetual and assignable easement title to Tract No. 2013-E within the Valles Caldera National Preserve, which became effective July 12, 1999. See Final Judgment at 1, No. CIV 99-0774 JP\DJS, filed October 18, 1999 (Doc. 19); Easement Order at 2.

         36. Tract No. 2013-E is a right-of-way that is thirty feet wide and contains 49.77 acres, more or less. See Easement Order at 2.

         37. The United States Department of Energy sold the Pipeline and the Easement (collectively, the “Pipeline System”) to PNM Gas Services, a Division of Public Service Company of New Mexico (“PNM”), by a Quitclaim Deed and Transfer Agreement (“Quitclaim Deed”) that became effective August 1, 1999. See Easement Order at 2; Quitclaim Deed at 1-3, filed December 19, 2016 (Doc. 104-1).

         38. PNM transferred the Pipeline to New Mexico Gas Company (“NMGC”) in connection with the sale of PNM's gas operations to NMGC effective January, 2009. See Easement Order at 2.

         39. PNM transferred the Easement to NMGC pursuant to the Assignment and Assumption of Easements dated January 30, 2009, a copy of which was recorded in the records of Sandoval County, New Mexico, on February 5, 2009, in Book 412, pages 2907 to 2919. See Easement Order at 2.

         40. NMGC presently owns the Pipeline System. See Easement Order at 2.

         41. Jemez Pueblo does not seek to quiet title to the Pipeline System or to NMGC's ingress and egress right across the Valles Caldera National Preserve. See Easement Order at 3.

         3. Historic Valles Caldera Use.

         The trial establishes that many American Indian Tribes' cultural and religious practices and histories involve the Valles Caldera. Moreover, these Pueblos[13] and Tribes have used the Valles Caldera for over 800 years. Several Pueblos and Tribes conceive their ancestral territory as encompassing sizable portions of these lands.

         A. Many American Indian Tribes' Cultural and Religious Practices and Histories Involve the Valles Caldera.

         42. The Valles Caldera's unique physiographic features represent a spiritual “Healing Space” for numerous Keres and Tewa Pueblos.[14] Kurt Anschuetz, Ph.D. Expert Report at 63-97 (March 22, 2018), admitted October 29, 2018, at trial as United States' Ex. DX-RP (“Anschuetz Report”). See Trial Transcript at 5051:9-5052:11 (taken Dec. 3, 2018), filed February 18, 2019 (Doc. 363)(“Dec. 3 Tr.”)(Marinelli, Anschuetz).

         43. The Keres and Tewa Pueblos' traditional Valles Caldera lore include stories of their search for and eventual settlement of their respective, permanent homelands. See Dec. 3 Tr. at 5119:10-25 (Marinelli, Chavarria)(defining Tewa aboriginal domain boundaries as southern Colorado to the north, the Jemez Mountains' western edge to the west, the Sandia Mountains to the south, and the Sangre de Cristo Mountains to the east); id. at 5202:4-14 (Marinelli, Chavarria)(describing Santa Clara Pueblo's headwaters within the Valles Caldera as belonging to many Tribes under a shared-use ownership concept); Interview Notes of Peter Pino by Kurt F. Anschuetz, Ph.D. at 1-4 (dated 2011), admitted October 29, 2018, at trial as United States' Ex. DX-MH (“Pino Interview Notes”); Anschuetz Report at 68 (“The fact that many Pueblo (and other tribal communities) view the Jemez Mountains as one of their Mountains of Cardinal Direction that define the limits of their homelands underscores the characterization of the Valles Caldera and the surrounding Jemez Mountains peaks are [sic] a part of a great commons.").

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         44. Since prehistoric times, Zia, Cochiti, Kewa (formerly Santo Domingo), Nambe, Picuris, Pojoaque, San Felipe, San Udefonso, Ohkay Owingeh (formerly San Juan), Sandia, Santa Ana, Santa Clara, and Tesuque Pueblo members have made pilgrimages to Redondo Peak to conduct traditional religious ceremonies. See William B. Douglass, Notes on the Shrines of the Tewa and Other Pueblo Indians of New Mexico at 358, in Proceedings of the Nineteenth International Congress of Americanists (Frederick W. Hodge ed., !9l7)("Notes on Shrines"), pages 344-78 admitted October 31, 2018, at trial as United States' Ex. DX-AL (“Indians from the pueblos of Jemez, Sia [sic], Santo Domingo, Sandia, Cochiti, San Ildelfonso, Santa Clara, and San Juan, . . . went to the summit of the peak every year during August.”); Florence Hawley Ellis, Navajo Indians I: An Anthropological Study of the Navajo Indians 124 (1974)(“Navajo Indians I”), pages 123-42 admitted November 19, 2018, at trial as United States' Ex. DX-EC (“In some cases several different tribes claim a certain especially high mountain as a shrine area . . . . Mt. Pelado, [15] highest peak in the Jemez range, is visited by Zia, Jemez, San Felipe, Santo Domingo, Cochiti, and the Tewa Pueblos north of Santa Fe; XXXXX Pueblos of Zia, Jemez, and Santa Ana v. U.S., Indian Claims Comm'n, Docket No. 137, Transcript of Testimony at 51 (taken Dec. 5, 1956)(Mann, Toya), admitted October 29, 2018, at trial as United States' Ex. DX-CK (“Zia, Jemez, and Santa Ana Pueblos v. ICC”)( XXXXX); In the Matter of the Petition of the Public Service Company of New Mexico for Authorizations Necessary to Participate in Baca Unit 1, Public Service Company of New Mexico, Case No. 1562, Transcript of Proceedings at 100 (taken Nov. 7, 1980)(Lucero), admitted October 29, 2018, at trial as United States' Ex. DX-EX (“In re PNM Authorizations”)(stating that the Navajo, Zuni, Picuris, Laguna, and Santa Clara peoples use Redondo Peak for traditional religious purposes); Hearings on the Draft Environmental Impact Statement -- Geothermal Demonstration Program, Baca Ranch, Sandoval and Rio Arriba Counties, New Mexico, Before the All Indian Pueblo Council at 49-50 (taken Aug. 16, 1979)(Tafoya), admitted November 16, 2018, at trial as United States' Ex. DX-EQ (“Tr., Hr'gs on the Geothermal Env. Impact Statement”)(discussing Santa Clara's shrine on Redondo Peak); Final Environmental Impact Statement -- Geothermal Demonstration Program, 50 MW Power Plant, Baca Ranch, Sandoval and Rio Arriba Counties, New Mexico at J-12-13 (dated Jan. 1, 1980), admitted October 29, 2018, at trial as United States' Ex. DX-EU, (“Environmental Impact Statement -- Geothermal Demonstration Program”)(“The most important religious site near the project area is Redondo Peak. XXXXX for at least six pueblos.”); Anschuetz Report at 147-63 (describing multiple Pueblos' pilgrimages, shrines, and ceremonies within the Valles Caldera).

         45. XXXXX. See Oct. 29 Tr. at 516:21-517:20 (Dykema, P. Tosa); Transcript of Trial Testimony at 505:1-3 (taken Oct. 30, 2018), filed December 20, 2018 (Doc. 292)(“Oct. 30 Tr.”)(Liebmann); id. at 516:10-25 (West, Liebmann); Redondo File 1 at 5 (dated 2001), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. 240; id. at 9 (XXXXX); Redondo File 2 at 11 (dated 2001), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. 241 (XXXXX).

         46. XXXXX See Oct. 30 Tr. at 505:6-506:15 (West, Liebmann); Oct. 29 Tr. at 217:9-23 (Dykema, P. Tosa); Liebmann Report at 19-20.

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         47. XXXXX.[16] Redondo Peak File 1 at 2-9; Redondo Peak File 2 at 8-13.

         48. XXXXX.[17] See, e.g., Oct. 30 Tr. at 518:10-519:21 (West, Liebmann); Liebmann Report at 21; Redondo File 2 at 11 (XXXXX).

         49. Multiple Pueblos maintain their Valles Caldera connections through traditional songs, ceremonial liturgies, and tribal speeches, legends, and folk stories. See e.g., Anschuetz Report at 4 (discussing oral tradition's importance among American Indian peoples); Trial Transcript at 2027:16-17 (taken Nov. 7, 2018), filed January 15, 2019 (Doc. 344)(“Nov. 7 Tr.”)(Marinelli, Lucero)(affirming that Zia Pueblo members “sing songs about Redondo Peak”).

         50. Zia Pueblo's migration history[18] encompasses the community's Jemez Mountains' occupation, which includes land within the Valles Caldera. See, e.g., Pueblos de Zia, Jemez, and Santa Ana v. U.S., ICC Docket 137, Sites Supporting the Land Claim of the Pueblos of Zia, Jemez, and Santa Ana (Jemez Pueblo's ICC Ex. No. 18) at 1 (dated 1951), admitted October 29, 2018, at trial as United States' Ex. DX-BZ (“Sites Supporting the Land Claim of the Pueblos of Zia, Jemez, and Santa Ana”)[19] (including Redondo Peak as a site supporting Zia, Jemez and Santa Ana's land claim before the ICC); Pino Interview Notes at 1-4 (discussing Zia Pueblo's historic settlements in the Jemez Mountains and along the Jemez River); Anschuetz Report at 148 (“Peter Pino, a Pueblo of Zia member, states that during its Migration, his Pueblo's First People came through the Valles Caldera and stopped ‘at Redondo Peak, which they named.'” (quoting Peter Pino)(emphasis in Anschuetz Report)).

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         51. The Valles Caldera's geological features have great spiritual significance for several Keres and Tewa Pueblos; for example, such Pueblos consider the Valles Calderas valleys and surrounding summits to represent the “Earth-Mother Bowl.” E.g., Trial Transcript at 4570:2-4571:5 (taken Nov. 29, 2018), filed February 18, 2019 (Doc. 361)(“Nov. 29 Tr.”)(Anschuetz)(“And so you have depiction of this Earth-Mother Bowl as the container of life that's enclosed by mountains of cardinal direction.”); Anschuetz Report at 80 (“The view that the summits of the Mountains of Cardinal Direction are principal intersections between the Natural and supernatural realms of the Cosmos is made tangible through the depiction of the Sky-Father Basket resting on the summits formed on the rim of the Earth-Mother Bowl.” (emphasis in original)).

         B. Many American Indian Tribes Have Used the Valles Caldera for Over 800 Years.

         52. The initial Jemez Mountain occupation date is the early 1200s C.E.[20] See, e.g., Anschuetz Report at 34-38 (discussing Tewa and Keres archeological sites along the Valles Caldera's east and southeast slopes); id. at 190-91.

         53. Objective and scientific archeological data confirms traditional Jemez Mountains migration and settlement lore among the Keres (Cochiti, Kewa, San Felipe, Santa Ana, and Zia) and Tewa (San Ildefonso and Santa Clara) Pueblos, migrated to and settled the Jemez Mountains, including the Valles Caldera, and large numbers of Keres and Tewa peoples arrived at the Jemez Mountains' east and south flanks beginning in the early 1200s C.E. See, e.g., Dec. 3 Tr. at 5051:9-5052:11 (Marinelli, Anschuetz)(asserting that many Pueblos' current and ancestral lands extend into Jemez Mountains). Anschuetz Report at 34-38 (discussing Tewa peoples cultural-historical presence in the Upper Jemez River Valley archeological district and concluding that, “[c]onsidering the similar influx of Keres populations in to the Cochiti-Kewa, San Felipe-Santa Ana, and Lower Jemez River Valley archaeological districts, it is clear that many, culturally diverse Pueblo groups were simultaneously occupying lands in the Jemez Mountains in proximity to the Valles Caldera”).

         54. Keres and Tewa and Towa Jemez Mountains occupancy evidence includes large and small Pueblo-village remnants, larger farmsteads and smaller fieldhouses, and associated artifacts.[21] See, e.g., Oct. 30 Tr. at 370:12-25 (West, Liebmann)(discussing Jemez archeological evidence -- villages, fieldhouses, ceramics, and stone tools -- found within and near the Valles Caldera); Anschuetz Report at 34-53 (discussing the Jemez Mountains ancestral Pueblo populations' Valles Caldera use based on archeological and tree-ring records); Kurt Anschuetz, Ph.D. Expert Rebuttal Report at 14-16 (March 21, 2018), admitted October 29, 2018, at trial as United States' Ex. DX-SA (“Anschuetz Rebuttal Report”)(asserting that, in addition to Jemez Pueblo, Tewa and Keres peoples possessed high-altitude agricultural skills sufficient to farm within the Valles Caldera); Liebmann Report at 4-8 (discussing Jemez Pueblo's northern Rio Jemez watershed occupation for over 800 years).

         55. Many ancestral Tewa villages, ancestral- and present-day Keres villages, important sacred areas, ceremonial sites, and religious shrines exist within Jemez Province's boundaries, as Jemez Pueblo defines them.[22] See, e.g., Oct. 29 Tr. at 283:5-284:14 (Dykema, P. Tosa)(acknowledging that Santa Clara Pueblo's and Jemez Pueblo's homelands “could very well overlap”); Anschuetz Report at 37-53 (describing archeological evidence which indicates that Tewa and Keres populations lived near lands that encompass the Valles Caldera); id. at 54 (asserting that “Tewa Pueblos maintain tight associations with varied archaeological and other cultural resources in the Jemez Mountains, ” and that “varied Keres Pueblos maintain similarly close ties with cultural resources assemblages in the Jemez Mountains”); id. at 148 (“Pino explained that Pueblo has village ‘sites up in the Jemez Mountains,' and his ancestors lived in the higher elevations up there for some time, however, ‘they eventually came down to this lower area because that's where the water starts to spread.'”); id. at 191 (“Members of several affiliated communities, including Zia, Santa Clara, San Ildefonso, and Kewa are known to have gathered varied plant resources, hunted game animals, harvested birdfeathers, and collected rocks and minerals in the Valles Caldera. Some locations . . . are so important that they are marked with shrines shared by different communities.”).

         56. Trails link the Keres and Tewa ancestral communities along the Jemez Mountains' northeast and east flanks with large areas within and west of the Valles Caldera. See, e.g., Anschuetz Report at 174-76 (discussing traditional trails and roads -- both literal and figurative --that once connected numerous Pueblos throughout the Jemez Mountains, including across the Valles Caldera); Rebuttal to Report of Matthew Liebmann by Rory Gauthier at 16 (dated May 21, 2018), admitted October 29, 2018, at trial as United States' Ex. DX-SB (“Gauthier Rebuttal Report”)(XXXXX); Rebuttal to Report of Garcia y Griego by Thomas Merlan at 2-3 (dated May 20, 2018), admitted October 29, 2018, at trial as United States' Ex. DX-RY (“Merlan Rebuttal Report”)(“Queres Indians would advise [Captain Francisco] Barrio-Nuevo that the trail by way of the Vallecito Viejo up into the Vallecito de los Indios and on through the Valle Grande would be far better for the Spaniards and their horses than would any trail north by either the San Diego or the Guadalupe Canyon.”).

         57. Keres and Tewa ancestral communities along the Jemez Mountains are associated with thousands of fieldhouses, and many hundreds of acres of agricultural infrastructure, ceremonial sites, sacred areas, mineral procurement areas, hunt traps and blinds, camp sites, and various other sites that date from the early 1200s C.E. through at least 1700 C.E. See Anschuetz Rebuttal Report at 11 (discussing large, high-elevation early-seventeenth century Tewa settlements less than 3.5 miles from the Valles Caldera and concluding that the settlements' occupants could have farmed with relative ease within the Valles Caldera); id. at 34-42 (discussing the ancestral Pueblos' need for large homelands to accommodate seasonal environmental changes); id. at 190-91 (discussing a small, high-altitude, seasonal farm site within the Valles Caldera that excavation and analysis suggests Tewa people occupied); Expert Report of Rory Gauthier[23] at 8 (dated March 22, 2018), admitted October 29, 2018, as United States' Ex. DX-RR (“Gauthier Report”)(depicting isolated sherds[24] distribution and associated Jemez, Keres, and Tewa cultural affiliations within the Valles Caldera); id. at 14-16 (discussing Tewa, Keres, and Towa ceramic-types distribution within the Valles Caldera).

         (Image Omitted)

         58. Tewa and Navajo populations have used several historic trails that originated around 1250 C.E. on the Valles Caldera's eastern boundary and which are still in use today. See e.g., Jacqueline L. Stark, Historic Routes of the Valles Caldera Nat'l Preserve from 1876-1953, at 1 (December 10, 2009)(pages 1-28 admitted October 29, 2018, at trial as United States' Ex. DX-LL)(discussing seventeen historic maps that depict routes through the Valles Caldera); Gauthier Report at 15 (discussing the Old Navajo trail through the Valle Grande).

         59. XXXXX.[25] See e.g., Trial Transcript at 1432:2-6 (taken Nov. 4, 2018), filed January 11, 2019 (Doc. 341)(“Nov. 4 Tr.”)(Luebben, Whatley)(XXXXX); Nov. 6 Tr. at 1805:13-1811:3 (Keegan, Ferguson)(XXXXX); Pueblo of Jemez Expert Witness Report by Dr. TJ Ferguson[26] at 12 (dated March 22, 2018), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 190 (“Ferguson Report”)(XXXXX); Liebmann Report at 6 XXXXX).

         60. For many centuries, Keres, Tewa, and other Pueblo and non-Pueblo Tribes have used the land and resources within the Valles Caldera's interior rim for a variety of activities, including hunting, livestock grazing, religious practices, and gathering plants, minerals, and water. See, e.g., Anschuetz Report at 163-91 (discussing numerous Tribes' pilgrimages, ceremonies, shrines, pathways, and agricultural and cultural practices within the Valles Caldera); id. at 191 (“Members of several affiliated communities, including Zia, Santa Clara, San Ildefonso, and Kewa are known to have gathered varied plant resources, hunted game animals, harvested birdfeathers, and collected rocks and minerals in the Valles Caldera.”).

         61. The Jemez Mountains' major drainages that lead into the Valles Caldera, such as El Rito de los Frijoles and Santa Clara Canyon, facilitated Keres and Tewa peoples' access to the Valles Caldera's natural and cultural resources. See, e.g., Nov. 6 Tr. at 1993:4-1995:4 (Marinelli, Ferguson)(confirming that Ferguson has no reason to dispute Naranjo's account of Santa Clara Pueblo's Valles Caldera use); Anschuetz Rebuttal Report at 12 (“Consideration of the concentration of a large number of Tewa people at the settlements of Puye (LA[27] 47, with ca. 1, 600 rooms) and Pueblo de las Estrellas (XXXXX, with ca. 1, 600 rooms) in Santa Clara Canyon in the Northern Pajarito archaeological district is also instructive.”); id. at 27 (“Given the cultural importance of the Valles Caldera's Redondo Peak, Valles Rhyolite obsidian source at Cerro del Medio, and the Piki[28] Stone Quarry in the XXXXX, . . . diverse Pueblo communities . . . journeyed long distances . . . to collect spiritually powerful resources associated with the Valles Caldera.”); id. at 28 (depicting Euclidian[29] distances from modern Pueblos to Valles Caldera resource sites); id. at 30-32 (depicting Euclidian distances from ancestral pueblo sites to Redondo Peak, Cerro del Medio, and XXXXX); Interview Notes with Tito Naranjo by Kurt F. Anschuetz, Ph.D.[30] at 6 (dated 2011), admitted October 29, 2018, at trial as United States' Ex. DX-MG (“Naranjo Interview Notes”)(describing Santa Clara Pueblo's Valles Caldera resource use for cultural and religious purposes).

         62. Santa Clara Canyon contains two historic pueblos totaling approximately 3, 200 rooms within a few miles of the Valles Caldera. See, e.g., Nov. 29 Tr. at 4554:23-4558:22 (Marinelli, Anschuetz)(describing Tewa and Keres room counts, and population estimates, in locations near the Valles Caldera); Anschuetz Rebuttal Report at 12 (“Consideration of the concentration of a large number of Tewa people at the settlements of Puye (LA 47, with ca. 1, 600 rooms) and Pueblo de las Estrellas (XXXXX, with ca. 1, 600 rooms) in Santa Clara Canyon in the Northern Pajarito archaeological district is also instructive.”)

         63. The Jemez Mountains Keres and Tewa Pueblos no longer occupy their ancestral Jemez Mountain homes, although these homes continue to play a significant role in their cultural heritage. See, e.g., Sites Supporting the Land Claim of the Pueblos of Zia, Jemez, and Santa Ana at 1 (including various Jemez Mountains sites to support Zia, Jemez, and Santa Ana's land claim before the ICC); Naranjo Interview Notes at 4-5 (identifying and discussing Jemez Mountains places known to Santa Clara Pueblo); Pino Interview Notes at 1-4 (discussing Zia Pueblo's historic settlements in the Jemez Mountains and along the Jemez River); Interview with Governor Carl Brent Schildt, Lt. Governor Jerome Lucero, and Francisco Toribio, with Joseph A. Little, Esq., and Lisa A. Franceware, Esq., Pueblo of Zia (dated Nov. 11, 2017), admitted October 29, 2018, at trial as United States' Ex. DX-RI (“Zia Pueblo Interviews”).

         a. Agriculture.

         64. Tree-ring dating of architectural wood, radiocarbon dating, and thermoluminescence dating of ceramics establish that Jemez Pueblo initially occupied its ancestral agricultural sites beginning in the late 1200s and early 1300s C.E. See Oct. 30 Tr. at 363:11-364:6 (West, Liebmann)(discussing archeological dating methods); id. at 370:12-25 (West, Liebmann); Liebmann Report at 9 (“All these farmsteads date to the centuries between 1300-1700 C.E.”); id. at 14 (“Jemez Black-on-white pottery[31] serves as the diagnostic calling card of all ancestral Jemez settlement, on and off the VCNP, between 1300-1680 C.E.”).

         65. Ancestral Jemez agricultural activities provided food for dozens of ancestral Jemez Pueblo villages in northern Rio Jemez watershed's canyons and nearby mesa tops. See, e.g., Oct. 30 Tr. at 447:16-448:12 (West, Liebmann); Liebmann Report at 10-12.

         66. Between 1300 and 1700 C.E., ancestral Jemez people built thirty-five villages and thousands of fieldhouses in the northern Rio Jemez watershed. See, e.g., Nov. 6 Tr. at 1796:18-1797:22 (Ferguson)(affirming that ancestral Jemez Pueblo people spent part of each year farming within the Valles Caldera); Liebmann Report at 6.

         67. Ancestral Jemez people occupied their fieldhouses for at least ninety days[32] during growing seasons.[33] See Oct. 30 Tr. at 453:23-25 (Liebmann)(“You're not going to build a fieldhouse for agricultural purposes unless you have at least 90 frost-free days in order to grow corn.”); id. at 459:4-8 (Liebmann).

         68. Ancestral Jemez Pueblo members occupied their fieldhouses not only for agricultural purposes, but also to hunt, to gather, to move about the landscape, and to demarcate territory.[34] See, e.g., Oct. 30 Tr. at 448:4-24 (Liebmann)(characterizing Jemez Pueblo's ancestral fieldhouses as summer homes); Liebmann Report at 10-11 (asserting that ancestral Jemez people constructed fieldhouses on the Banco Bonito to mark their territory).

         69. Jemez Pueblo occupied the 100 fieldhouses on the Banco Bonito throughout a 400-year period, most of which Jemez Pueblo occupied between 1500-1650 C.E.[35] See Oct. 30 Tr. at 447:4-14 (West, Liebmann); Trial Transcript at 5770:9-11 (taken Dec. 13, 2018), filed February 19, 2019 (Doc. 366)(“Dec. 13 Tr.”)(Liebmann)(“I don't believe that every one of those 100 fieldhouses was used for the entire 400 years.”); Liebmann Report at 9-10.

         70. Banco Bonito's southwest orientation results in abundant direct sunlight that facilitates favorable growing conditions. See, e.g., Dec. 13 Tr. at 5615:7-13 (Ferguson); Ferguson Report at 100-01.

         71. Tewa people occupied a high-elevation farm in the Jemez Mountains that dates to the early 1700s. See, e.g., Trial Testimony at 4596:1-4597:4 (taken Nov. 29, 2018), filed February 18, 2019 (Doc. 361)(“Nov. 29 Tr.”)(Marinelli, Anschuetz); Anschuetz Report at 190-91; This Enchanted Land -- The Jemez Mountain Wonderland -- Los Alamos Scientific Laboratory at the University of California at 4 (dated Sept. 1961), admitted October 29, 2018, at trial as United States' Ex. DX-CV.

         72. Jemez Pueblo's farming in the Valles Caldera's vicinity before 1700 C.E. was not unique given that other Pueblos supported themselves in the same manner. See Trial Transcript at 4724:23-4727:5 (taken Nov. 30, 2018), filed February 18, 2019)(Doc. 362)(“Nov. 30 Tr.”)(Marinelli, Anschuetz)(discussing data which shows that Tewa peoples harvested Valles Caldera obsidian to make tools and maintained high-elevation fieldhouses in the Valles Caldera's vicinity); id. at 4745:1-13 (Marinelli, Anschuetz)(affirming that Pueblos other than Jemez Pueblo use the Valles Caldera to gather plants, animals, minerals, and water, among other things); id. at 4554:23-4562:8 (Marinelli, Anschuetz)(describing how Tewa and Keres room counts and likely populations in settlements near the Valles Caldera exceeded Jemez Pueblo's population); Anschuetz Report at 47-48 (mapping Pueblos' proximity to a major Valles Caldera obsidian source).

         73. Ancestral Keres and Tewa peoples, as well as members of other Pueblos and Tribes, routinely travelled four miles or more into the Valles Caldera from their fieldhouses and permanent villages to hunt game, to gather native plants, to collect obsidian, and to conduct other traditional practices. See, e.g., Anschuetz Report at 168 (discussing multiple Pueblos' traditional pilgrimages and practices within the Valles Caldera); id. at 178 (noting Zia Pueblo's continued Valles Rhyolite obsidian use); id. at 184 (XXXXX, and discussing a survey that samples twenty-one Pueblos' and Tribes' Valles Caldera and Jemez Mountains plant use); id. at 185-86 (discussing Zia, Jemez, Santa Clara, and Santa Ana Pueblos' hunting practices within the Jemez Mountains, including on Redondo Peak), id. at 187-88 (discussing Zia Pueblo's, Jemez Pueblo's, and Santa Ana Pueblo's XXXXX); Nov. 29 Tr. at 4586:6-19 (Marinelli, Anschuetz)(discussing various Pueblos' pilgrimages and ceremonies within the Valles Caldera); Anschuetz Rebuttal Report at 27 (discussing the Pueblos' willingness to travel “long distances during pilgrimages or expeditions to collect spiritually powerful resources associated with the Valles Caldera”).

         74. Most Pueblos and Tribes did not have to pass Jemez villages to access and use the Valles Caldera.[36] See, e.g., Nov. 6 Tr. at 1920:7-1921:16 (Marinelli, Ferguson)(conceding that Santa Clara and San Ildefonso Pueblos, and possibly Cochiti Pueblo, would not have had to pass through Jemez Pueblo villages to access the Valles Caldera); Fogleman Report at 15 (displaying routes generated using least-cost-path analysis[37] from twelve present-day Pueblos to Redondo Peak, none of which pass through Jemez Pueblo[38]); Anschuetz Report at 15 (noting the Valles Caldera's and Jemez Mountains' location in relation to thirteen affiliated Pueblos and Tribes).

         b. Ceramics.

         75. People from the Keres, Tewa, and Towa language groups historically used the Valles Caldera.[39] See, e.g., Trial Transcript at 2363:23-2364:1 (taken Nov. 8, 2018), filed January 22, 2019 (Doc. 350)(“Nov. 8 Tr.”)(Leonard, Gauthier)(“Based on the archaeological data, primarily the ceramic evidence that three groups were using the Valles Caldera. And these are Tewa, Keres, and Towa -- the artifacts that I looked at.”); Gauthier Report at 3 (“Ceramic types found within the boundaries of the VCNP are affiliated with a number of these pueblos including Keres, Tewa and Towa villages. Ceramic evidence indicates pueblo use of the VCNP beginning in the mid 1200s C.E. until the mid 1700s C.E.”).

         (Image Omitted)

         76. Archaeologists study ceramics and pottery sherds from as early as the fourteenth century to better understand the ethnic groups associated with archeological remains. See, e.g., Nov. 8 Tr. at 2325:5-15 (Gauthier)(“Archaeologists -- we study ceramics, because there are a variety of reasons. First of all, they contain a lot of history.”); Liebmann Report at 16 (discussing Tewa, Keres, and Jemez Pueblo pottery sherds dating between 1300 through 1680 C.E.).

         77. Because ceramic sherds are virtually indestructible, they maintain many of their identifying characteristics over time, and archeologists use those characteristics, which include clay/paste attributes, temper material, paint type, paint design, and surface finish, to determine where a sherd was made, who made it, and its age. See, e.g., Nov. 8 Tr. at 2325:13-19 (Gauthier)(“If you look at a sherd, it can give you information of where it was made, who it was made by, and also when it was made. Besides all that information, they are virtually indestructible.”); Gauthier Report at 1 (discussing sherds historical importance to archeologists).

         78. From approximately 1300 to 1680 C.E., Jemez Pueblo produced a distinctive form of decorated pottery known as Jemez Black-on-white, which was not produced in any other region or by any non-Jemez pueblos. See Oct. 30 Tr. at 377:24-378:6 (Liebmann)(“So Jemez Black-on-white is the pottery that occurs throughout the ancestral Jemez region. That was pottery that was produced by ancestral Jemez peoples between roughly 1300 and 1680, and it kind of serves for archaeologists as the diagnostic signature of ancestral Jemez people.”).

         79. Archeologist have found on XXXXX sherds containing anthill temper, [40]which establishes that there was thirteenth-century Keres and Tewa Valles Caldera use given that antihill temper dates most commonly from 1250 to 1350 C.E. and occurs in only the Pajarito Plateau, which was home to ancestral Keres and Tewa people. See Nov. 8 Tr. At 2331:22-2332:2 (Gauthier)(“This type of ceramic is very common on the Pajarito Plateau. And I already said the dates, 1250 to 1350. It is a very good ethnic marker based on the temper type that is found in this pottery. And it is ancestral Tewa, or ancestral Keres.”); Log 3962; Site None; VCNP Artifact: A12-7508-001 (undated), admitted November 8, 2018, at trial as United States' Ex. DX-TG (image depicting “Pajarito Utility” sherd).

         80. Micaceous pottery, i.e., pottery in which potters use mica as a temper material, is not Jemez Pueblo's, because mica does not occur naturally in the Jemez Mountains, but rather in areas near Taos and Picuris Pueblos, and north of the Jemez Mountains in the Rio Chama Valley. See Oct. 30 Tr. at 583:21-23 (Liebmann)(“I'll stipulate. I don't know of any evidence of Jemez people using mica to temper their pottery.”); id. at 584:3-19 (Marinelli, Liebmann)(observing that micaceous pottery found within the Valles Caldera “could be Tewa, they could be Kewa, so they could be coming from Picuris or Taos”); Nov. 8 Tr. at 2339:8-2340:19 (Gauthier)(“[Mica] does not occur naturally in the Jemez Mountains, but it occurs naturally north of Jemez Mountains, up in the Rio Chama Valley and also over at the area of Taos and Picuris . . . . It is indicative of Tewa pottery.”).

         81. Archeologists have found near XXXXX, within the Valles Caldera, pre-Pueblo Revolt of 1680[41] (“Pueblo Revolt”) micaceous pottery sherds, which date from 1450-1550 C.E. and are indicative of Tewa cultural affiliation. See Nov. 8 Tr. at 2339:25-2340:15 (Leonard, Gauthier)(affirming sherd 2401's Tewa cultural affiliation); Log 2401; Site S00-076/ XXXXX; VCNP Artifact: A08-0229-001 (undated), admitted November 6, 2018, at trial as United States' Ex. DX-TC (image depicting “Sapawe Micaceous” sherd).

         82. Jemez peoples left Jemez Black-on-white ceramics evidence throughout the Valles Caldera, which indicates that ancestral Jemez Pueblo members used the Valles Caldera from approximately 1300 C.E. to at least the Pueblo Revolt in 1680 C.E. and thereafter. See, e.g., Dec. 13 Tr. at 5546:7-12 (Liebmann); Liebmann Report at 16.

         83. Before 1700 C.E., Keres and Tewa members produced distinctive pottery. See e.g., Gauthier Report at 12-14 (describing various ceramic types found within and adjacent to the Valles Caldera); id. at 17.

         84. Many Tribes used the Valles Caldera lands before 1700 C.E., including Tewa and Keres peoples, who used the Valles Caldera's southeast and south-central areas between 1200 and at least 1750 C.E. See, e.g., Gauthier Report at 14-16 (discussing and dating Tewa and Keres archaeological sites in the Valles Caldera's Valle Grande and Cerro del Medio regions and in areas associated with historic Valles Caldera trails and obsidian access routes); id. at 17 (“The ceramic analysis has determined the presence of three separate pueblo groups within the VCNP.”).

         85. Archaeological sites affiliated with Tewa and Keres people are the most common cultural affiliations in the Valles Caldera's southeast and south-central areas, i.e., the Valle Grande, XXXXX. See, e.g., Nov. 8 Tr. at 2335:6-2336:25 (Leonard, Gauthier)(discussing Keres utility-ware sherd 4841 found at XXXXX); Gauthier Report at 7 (mapping sites by cultural affiliation, including Tewa-affiliated XXXXX); id. at 14; Log 4841; XXXXX; VCNP Artifact: A14-6289-001(undated), admitted November 8, 2018, at trial at United States' Ex. DX-TB (image depicting Keres sherd 4861).

         86. Although archeologists predominantly have found Tewa-affiliated sherds in the Valles Caldera's southeast and south-central areas, archeologists have found such sherds as far west the Banco Bonito and Redondo Meadows. See, e.g., Nov. 8 Tr. at 2331:14-2332:2 (Leonard, Gauthier)(affirming that archeologists found sherd 3962 on XXXXX); id. at 2391:13-2393:5 (Leonard, Gauthier)(discussing Jemez and Tewa sherds found on the Banco Bonito and Keres and Tewa sherds found near XXXXX); Log 3962; Site None; VCNP Artifact: A12-7508-001 (undated), admitted November 8, 2018, at trial at United States' Ex. DX-TG (image depicting “pajarito utility” sherd 3962).

         87. Archeologists have found Tewa ceramics dating as early as 1200 C.E. at XXXXX .[42] See Gauthier Report at 7 (mapping sites by cultural affiliation, including Tewa-affiliated XXXXX; id. at 14 (noting that Tewa affiliated sites are “associated with the XXXXX); Spreadsheet Listing Sites by Laboratory of Anthropology Number, the Cultural Affiliation, Ceramic Types and Numbers Found on the Particular Site, Basic Notes and Date Assigned to the Archaeological Site at 1-2 (dated March 23, 2018), admitted November 8, 2018, at trial as United States' Ex. DX-RT (“Archeological Sites Spreadsheet”)(listing ceramics' cultural affiliation and location).

         88. Archeologists have found Tewa ceramics dating from the mid-fourteenth century in the Valles Caldera's Valle Grande. See, e.g., Gauthier Report at 7 (mapping sites by cultural affiliation, including Tewa-affiliated XXXXX in the Valle Grande); Archeological Sites Spreadsheet at 1-2.

         89. Archeologists have identified Keres or Tewa -- but not Towa -- pottery at pre-Pueblo Revolt sites at XXXXX. See, e.g, Gauthier Report at 7 (mapping sites by cultural affiliation, including Keres- or Tewa-affiliated XXXXX); Archeological Sites Spreadsheet at 1-2.

         90. Tewa and Keres people have used the Valles Caldera since before the Pueblo Revolt. See, e.g., Nov. 8 Tr. at 2331:14-2332:2 (discussing Keres sherd found on XXXXX; id. at 2335:6-2336:25 (discussing Keres utility ware sherd found at XXXXX); Gauthier Report at 14-16 (discussing and dating Tewa and Keres archaeological sites in the Valles Caldera's Valle Grande and Cerro del Medio regions, and in areas associated with historic Valles Caldera trails and obsidian access routes).

         91. Tewa, Keres, and Towa speakers all used the Valles Caldera's northern portion between 1200 and 1750 C.E.; Jemez Pueblo was not the Valles Caldera's northern portion's dominant Tribal user. See, e.g, Gauthier Report at 5-8 (mapping sites by cultural affiliation, including Keres-affiliated XXXXX, or Tewa-affiliated XXXXX, and Towa-affiliated XXXXX); id. at 14-17 (discussing and dating Tewa, Keres, and Towa archaeological sites within the Valles Caldera).

         c. Obsidian.

         92. American Indian peoples collected obsidian from the Jemez Mountains, including the Valles Caldera's obsidian sources, from before 10, 000 B.C.E. to after 1600 C.E.[43] See, e.g., Trial Transcript at 3050:16-19 (taken Nov. 13, 2018), filed January 30, 2019)(Doc. 353)(“Nov. 13 Tr.”)(Marinelli, Steffen)(“I believe, that look at sourcing of very, very old artifacts, Paleoindian[44] artifacts, the source is the Jemez Mountains.”); id. at 3052 (“And so where you see the word ‘Folsom,' in 2002, the one that says New Mexico obsidian Folsom artifacts, it's quite old, over 9, 000 years old.”); Subject Matter of Expert Testimony, Summary of Facts and Opinions and Report by Dr. Anastasia Steffen[45] at 7-12 (dated March 23, 2018), admitted October 29, 2018, at trial as United States' Ex. DX-RV (“Steffen Report”)(describing data which show that prehistoric people used Jemez Mountains obsidian sources for thousands of years before ancestral Puebloan communities developed).

         93. The Jemez Mountains' three main obsidian sources are Cerro del Medio, Cerro Toledo, and El Rechuelos. See Steffen Report at 4 (identifying Jemez Mountains obsidian sources).

         94. The Cerro del Medio obsidian source is located entirely within the Valles Caldera, and the Cerro Toledo obsidian source extends beyond the Valles Caldera's northeastern and southeastern boundaries. See Nov. 13 Tr. at 3069:14-3071:25 (Marinelli, Steffen)(discussing Valles Rhyolite[46] obsidian locations within the Valles Caldera); Steffen Expert Report at 4.

         95. American Indian peoples have used the Cerro del Medio obsidian source for over 10, 000 years, which is many thousands of years before Jemez Pueblo arrived at its current location. See, e.g., Nov. 13 Tr. at 3080:24-3082:15 (Marinelli, Steffen)(noting that Cerro Del Medio obsidian is present throughout all recorded temporal periods, ranging from 10, 000 B.C.E. to after 1600 C.E.); Trial Transcript at 624:1-13 (taken Oct. 31, 2018), filed December 20, 2018 (Doc. 339)(“Oct. 31 Tr.”)(Liebmann, Marinelli)(affirming that Liebmann does not conclude that Jemez Pueblo actively guarded the Cerro del Medio obsidian source).

         96. The Cerro del Medio obsidian source and the Cerro Toledo Rhyolite sources are both “Tewa group” obsidian sources. E.g., Nov. 13 Tr. at 3075:10-25 (Marinelli, Steffen)(“[T]he groups are geologic groups.[47] There is a Tewa group, Polvadera group, and Keres group.”); Steffen Expert Report at 5 (identifying Valles Rhyolite and Cerro Toledo Rhyolite as within the “Tewa Group”).

         97. Some Pueblo peoples who used Cerro Toledo obsidian would have procured that obsidian from the Valles Caldera. See Oct. 31 Tr. at 621:5-18 (Marinelli, Liebmann).

         98. Archeologists have found obsidian artifacts in the Valles Caldera that individuals made from obsidian sources outside the Valles Caldera. See Nov. 13 Tr. at 3052:18-3053:18 (Marinelli, Steffen).

         99. Ancestral Jemez Pueblo members gathered their Cerro del Medio obsidian from the Valles Caldera.[48] See, e.g, Oct. 30 Tr. at 468:9-24 (Liebmann); id. at 469:17-19 (Liebmann); Matthew J. Liebmann, [49] From Landscapes of Meaning to Landscapes of Signification in the American Southwest, 82 American Antiquity 651, 642-661 (2017), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 154 (“Landscapes of Signification”).

         100. The simplest explanation for Cerro del Medio obsidian's widespread distribution is that various Tribes' members obtained it from the source. See Nov. 13 Tr. at 3088:16-3089:13 (Steffen)(“Certainly the simplest explanation is that people just came in and got [Cerro del Medio obsidian].”); Steffen Report at 6.

         101. Jemez Pueblo has never controlled the Cerro del Medio obsidian source. See, e.g., Nov. 13 Tr. at 3089:14-3092:17 (Marinelli, Steffen)(discussing Cerro del Medio obsidian distribution and the unlikelihood that any one Tribe could control the source); Map of Valles Rhyolite Obsidian (dated Oct. 1, 2018), admitted November 13, 2018, at trial as United States' Ex. DX-SF.

         102. Jemez Mountains obsidian's distribution increases spatially over time, which establishes that other American Indian peoples -- including non-Jemez Pueblos and non-Pueblo Tribes -- broadly used Jemez Mountains obsidian in at least twelve United States states. See Nov. 13 Tr. at 3094:8-3095:14 (Marinelli, Steffen)(stating that Jemez Mountains obsidian-artifact distribution increases over time); Nov. 29 Tr. at 4551:9-4554:22 (Marinelli, Anschuetz)(discussing Tewa peoples' cultural connection to and use of Cerro del Medio obsidian before migrating to the Jemez Mountains region); Steffen Report at 10-11; Anschuetz Report at 43-46 (discussing Jemez Mountains obsidian's widespread geographical dispersion across hundreds of miles covering nine states).

         103. Tewa populations in the Mesa Verde on the Jemez Mountains east flank had direct contact with Tewa peoples living within the Jemez Mountains.[50] See, e.g., Anschuetz Report at 44 (describing the Mesa Verde and Tewa Basin populations' Cerro del Medio obsidian use); Ana Steffen Rebuttal Report of Liebmann Report at 11-12 (dated May 21, 2018), admitted October 29, 2018, as United States' Ex. DX-RZ (“Steffen Rebuttal Report”)(describing studies which indicate significant Cerro del Medio obsidian use by multiple non-ancestral Jemez populations throughout the northern Rio Grande region).

         104. Valles Rhyolite obsidian[51] is a powerful and enduring cultural symbol among the Pueblos that use it. See, e.g., Anschuetz Report at 44; Steffen Rebuttal Report at 11-12.

         105. From the 1200s to the late 1800s C.E., Tewa, Keres, and Jicarilla people traveled to the Valles Caldera from numerous sites surrounding the Valles Caldera to collect obsidian. See, e.g., Oct. 31 Tr. at 617:2- 619:9 (Marinelli, Liebmann)(declining to dispute that Jicarilla Apache people used Cerro del Medio obsidian into the twentieth century); Trial Transcript at 3313:15-3314:13 (taken Nov. 14, 2018), filed February 2, 2019 (Doc. 355)(“Nov. 14 Tr.”)(Marinelli, Steffen)(discussing various Pueblos' Cerro del Medio obsidian use percentages).

         106. The Cerro Colorado, San Marcos, Gran Quivira, Pueblo Blanco, and Pueblo Colorado villages nearly 100 miles from the Valles Caldera obtained substantial amounts of Cerro del Medio obsidian from non-Jemez sources. See, e.g., Oct. 30 Tr. at 539:3-540:4 (Marinelli, Liebmann)(acknowledging that Steven Shackley, Professor of Anthropology at the University of California, Berkeley, stated in American Antiquity that “[t]he abundance of Cerro del Medio obsidian at ancestral pueblos in northern New Mexico and beyond, attest to the extent of ties that existed between many of the regional pueblo villages and the Valles Caldera”); Trial Transcript at 3188:10-22 (taken Nov. 14, 2018), filed February 2, 2019 (Doc. 355)(“Nov. 14 Tr.”)(Marinelli, Steffen)(stating that the non-Jemez ancestral people who occupied the Bandelier and Los Alamos archeological sites used Cerro del Medio obsidian); id. at 3159:18-3164:15 (discussing Cerro del Medio obsidian at the San Marcos village site, and stating that archeologists generally consider that ancestral Cochiti and Santo Domingo Pueblos obtained their obsidian directly from the Valles Caldera); id. at 3189:3-3191:3 (Marinelli, Steffen)(noting that several ancestral Pueblos contemporaneous with Jemez Pueblo, including San Marcos, Gran Quivira, Pueblo Blanco, and Pueblo Colorado, used Cerro del Medio obsidian, and that no evidence suggests a trade connection between these Pueblos and Jemez Pueblo); id. at 3309:12-3310:8 (West, Steffen)(stating that San Marcos Pueblo traded primarily with Tewa and Keres peoples); id. at 3175:21-3186:22 (Marinelli, Steffen)(noting Gran Quivira, Pueblo Blanco, and Pueblo Colorado's Cerro del Medio obsidian use); id. at 3189:3-3191:3 (Marinelli, Steffen)(stating that Cerro del Medio obsidian that Gran Quivira, Pueblo Blanco, and Pueblo Colorado used did not come from Jemez Pueblo); Trial Transcript at 5587:16-5588:11 (taken Dec. 13, 2018), filed February 19, 2019 (Doc. 366)(“Dec. 13 Tr.”)(Marinelli, Liebmann)(affirming that the ancestral Zia and Santa Ana village of Cerro Colorado had a higher percentage of Cerro del Medio obsidian than comparable Jemez sites which Liebmann considered); Steffen Rebuttal Report at 11 (describing studies which indicate that San Marcos, Gran Quivira, Pueblo Blanco, and Pueblo Colorado used Cerro del Medio obsidian in significant amounts); Matthew Liebmann, Robert Preucel, and Joseph Aguilar, The Pueblo World Transformed: Alliances, Animosities, and Factionalism in the Northern Rio Grande, 1680-1700 at 148, in New Mexico and the Pimeria Alta; The Colonial Period in the American Southwest (John G. Douglas and William M. Graves eds., 2017)(pages 143-56 admitted December 13, 2013, at trial as United States' Ex. DX-QJ)(“The Pueblo World Transformed”)(quantifying Cerro Colorado's population's Cerro del Medio obsidian use).

         107. The obsidian flakes found at thirty-one Jemez villages came from several different obsidian quarries or sources, including Valles Rhyolite from the Cerro del Medio quarry. See, e.g., Oct. 30 Tr. at 471:15-472:14 (West, Liebmann); Landscapes of Signification at 651.

         108. The Cerro del Medio obsidian from thirty-one Jemez villages was “uniquely” “the only source site that appeared at every single one of those 31 pueblos.” Oct. 30 Tr. at 471:15-472:14 (West, Liebmann). See Landscapes of Signification at 651.

         109. Jemez people made frequent trips into the Valles Caldera between 1300 and 1700 C.E., and ancestral Jemez Pueblo members quarried most of their obsidian from Cerro del Medio. See, e.g., Oct. 30 Tr. at 471:25-472:6 (Liebmann); Landscapes of Signification at 651.

         110. Tribes others than Jemez Pueblo, including Santa Clara Pueblo, Cochiti Pueblo, and Navajo peoples, historically used the Valles Caldera for activities such as gathering natural resources and visiting sacred springs. See, e.g., Trial Transcript at 1368:16-24 (taken Nov. 5, 2018), filed January 11, 2019 (Doc. 342)(“Nov. 5 Tr.”)(Leonard, Whatley)(finding it “obvious” that Pueblos other than Jemez Pueblo used the Valles Caldera); id. at 1370:11-21 (Leonard, Whatley)(discussing Navajo activity in the Valles Caldera); id. at 1377:10-1378:23 (Leonard, Whatley)(acknowledging that Tribes other than Jemez Pueblo used the Valles Caldera to gather obsidian and for religious purposes); id. at 1379:23-25 (Whatley)(“[A]reas coming all the way up to the rim of the Caldera were used by Cochiti, that was no question there.”).

         111. Ancestral Pueblos' widespread Jemez Mountains occupation suggests that no community exercised control over lands in and around the Valles Caldera.[52] See, e.g., Anschuetz Report at 42-43; Nov. 29 Tr. at 4550:3-5 (Anschuetz)(“The tree-ring records show that the breadth of pueblo population in use of the Jemez Mountains is great, and its reach is vast.”).

         112. Pueblo peoples on the Jemez Mountains' northeast, east, southeast, and south-central flanks had access to the Jemez Mountains, including the Valles Caldera, throughout prehispanic Pueblo history. See, e.g., Nov. 29 Tr. at 4555:17-4556:19 (Marinelli, Anschuetz); Anschuetz Report at 45-46.

         113. Individuals associated with numerous non-Jemez communities, including Ohkay Owingeh, Taos, Zia, Pojoaque, Sandia, and Nambe, used the Valles Caldera between the 1890s and the 1980s.[53] See, e.g, Nov. 13 Tr. at 3113:22-3115:19 (Steffen, Marinelli)(noting that, of the twenty-eight Valles Caldera carvings with potential American Indian community association, six state “San Juan, ” three state “San Juan Pueblo, ” ten state “Jemez, ” four state “Taos, ” two state “Pojoaque, ” and each state “Nambe, ” “Sandia, ” and “Zia, ” respectively); Steffen Report at 13-20 (discussing Aspen dendroglyphs[54] as an indication that people from diverse communities used the Valles Caldera during the early- to mid-twentieth century).

         114. The ten known instances where individuals carved “Jemez” into Valles Caldera aspens do not all relate to Jemez Pueblo, [55] as “Jemez” could indicate “Jemez Springs, ” “Jemez Mountains, ” or “Jemez River” place names. E.g. Nov. 13 Tr. at 3114:12-3115:12 (Marinelli, Steffen)(noting that “Jemez” could refer to Jemez Pueblo and various Jemez place names throughout the Jemez Mountains region). See Steffen Report at 16-20.

         115. Hispanic sheepherders carved surnames into Valles Caldera aspens during their Valles Caldera occupancy. See, e.g., Nov. 13 Tr. at 3118:2-4 (Steffen)(“[I]n general, aspen carvings are usually assumed to be Hispanic sheep herders”); Steffen Report at 17.

         C. Multiple Pueblos and Tribes Conceive Their Ancestral Territory as Encompassing Sizable Valles Caldera Segments.

         116. Jemez Pueblo elders historically considered the Valles Caldera as a sacred domain over which no single Pueblo or Tribe was the sole proprietor, because ownership was cooperative rather than exclusive. See, e.g., Trial Transcript at 1108:6-11 (taken Nov. 1, 2018), filed January 11, 2019 (Doc. 340)(“Nov. 1 Tr.”)(Leonard, Weslowski)(affirming that the Pueblos “understand[] lands as a commons, rather than owned by one group or one person”); id. at 1112:11-16 (Leonard, Weslowski).

         117. Pueblo peoples have had a mutual responsibility to use the land's natural resources in a spiritually “correct” manner; and through this correct stewardship, many different people have cooperatively used the same region without competitive conflict. See, e.g., Nov. 1 Tr. at 1108:6-11 (Weslowski); id. at 1112:11-16 (Weslowski); Lois Vermilya Weslowski, [56] Native American Land Use Along Redondo Creek at 117-20, in High Altitude Adaptations Along Redondo Creek the Baca Geothermal Anthropological Project (Craig Baker and Joseph C. Winter eds., 1981)(pages 1-24, 105-95 admitted October 31, 2018, at trial as Jemez Pueblo's Ex. PX 028)(“High Altitude Adaptations”).

         118. The Jemez Pueblo Ancestral Land Project aimed to identify the lands that Jemez Pueblo occupied at the point of Spanish contact in 1541 C.E., when Jemez Pueblo's population was at its highest point.[57] See, e.g., Nov. 4 Tr. at 358:25-359:17 (Luebben, Whatley).

         119. Jemez Pueblo elders did not agree on the significance of every location that the Ancestral Land Project considered. See, e.g., Nov. 4 Tr. at 1232:12-1233:12 (Whatley)(“So there was a lot of discussion, a lot of points were erased and moved by other people.”), id. at 1360:19-22 (Leonard, Whatley); Designation of Deposition Testimony -- Gregory Kauffman at 62:15-25 (Kauffman), admitted November 20, 2018, at trial as United States' Ex. DX-JX 9 (asserting that, when creating maps of places sacred to Jemez Pueblo people, “the most learned elders, the people who had the best chance of remembering place names and the ceremonies there, . . . could not agree”).

         120. The Supreme Council of Religious Leaders created a map identifying Jemez Pueblo's land-use and occupancy boundaries at the height of its population in 1541 C.E. and identified a “habitation zone” where Jemez Pueblo people lived and actively defended the land.[58]Nov. 4 Tr. at 1236:19-1237:10 (Luebben, Whatley); id. at 1300:5-23 (Luebben, Whatley).

         121. Whatley's Jemez Pueblo ancestral domain maps do not categorize the Valles Caldera as exclusive to Jemez Pueblo and instead identify portions of the Valles Caldera sections that were jointly used with Keres, Tewa, and Ute people and further sections that Jemez Pueblo recognized as a Keres or Tewa Pueblo's exclusive domain. See Nov. 4 Tr. at 1374:8-15 (Leonard, Whatley)(affirming that the Whatley's 1995 Ancestral Jemez Domain map's eastern boundary shows Tewa, Keres, and Ute joint-use areas); Plat of the Ancestral Jemez Domain at 1 (dated Jan. 1, 1995), admitted October 29, 2018, at trial as United States' Ex. DX-GW; VCNP Map at 1 (dated Oct. 1, 2015), admitted November 2, 2018, at trial as United States' Ex. DX-OY; Map of Whatley GIS Data at 1 (undated), admitted November 2, 2018, at trial as United States' Ex. DX-SL.

         122. Jemez Pueblo's 1995 “Ancestral Jemez Domain” map identifies a large Valles Caldera section as a “joint use area” shared with “peoples of the Tewa and Keresan Nations, ” and places Jemez Pueblo's ancestral domain boundary within five miles of Redondo Peak, thereby excluding a sizable Valles Caldera section from Jemez Pueblo's ancestral domain. Plat of the Ancestral Jemez Domain at 1.

         123. The March 2000 Valles Caldera map that Jemez Pueblo created for a presentation to the United States Congress places significant parts of the Valles Caldera's northern and eastern portions outside Jemez Pueblo's “Land Occupied by the Jemez Nation at Spanish Contact in AD 1540, ” because the Spanish removed Jemez Pueblo from that land. See, e.g., Baca Location No. 1 and the Proposed Establishment of the VCP: An Overview of the Concerns and Recommendations of the Pueblo of Jemez at 5 (dated March 2000), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 13; Designation of Deposition Testimony -- Allen Gachupin at 29:8-30:24 (Gachupin), admitted November 20, 2018, at trial as United States' Ex. DX-JX 2 (discussing changes in Jemez Pueblo's domain over time, specifically from a larger area before the Spanish arrived in 1541 to a smaller area thereafter).

         124. Jemez Pueblo used a geographic information system (“GIS”)[59] to map a Jemez Pueblo “exclusive use” area that not only identifies non-Jemez sites' locations within the Valles Caldera but also places the majority of the Valles Caldera outside the Jemez Pueblo “Exclusive Use Area AD 1541.” Map of Whatley GIS Data at 1 (undated), admitted November 2, 2018, at trial as United States' Ex. DX-SL.

         125. Jemez Pueblo's GIS map and a litigation map on which Jemez Pueblo marked a Jemez exclusive use area, a Cochiti area, and a Santa Clara area within the Valles Caldera, corroborate each other; both maps identify a portion of the Valles Caldera's southwest quadrant as exclusive to Jemez Pueblo. Compare VCNP Map at 1 with Map of Whatley GIS Data at 1.

         126. A 1986 map depicts Jemez Province as extending only slightly into the Valles Caldera.[60] See Oct. 30 Tr. at 561:22-562:7 (Marinelli, Liebmann); Michael Elliott, [61] Overview and Synthesis of the Archeology of the Jemez Province, New Mexico at 2 (dated 1986), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 122 (“Archeology of the Jemez Province”).

         127. Jemez Pueblo has not maintained consistently that the entire Valles Caldera belongs exclusively to Jemez Pueblo.[62] See Kehoe Rebuttal Report at 10 (“Significantly, the assertions of exclusive Jemez Indian ownership of the Valles Caldera in these recent depositions contradicts the public positions taken in earlier periods by some Jemez Indians, who described sharing these lands equally with other pueblos.”); id. at 11 (“Former Jemez Governor Toya repeatedly referred to the joint use of shrines and other areas with Baca Location 1 by the Pueblos of Jemez, Santa Ana, and Zia.”).

         128. Jemez Pueblo never asserted to the Dunigan family that it owned the Valles Caldera. See Designation of Deposition Testimony -- Andrew Patrick Dunigan at 26:12-21 (Dunigan), admitted November 20, 2018, at trial as United States' Ex. DX-JX 8.

         129. Jemez Pueblo's Ancestral Land Project map, [63] compiled using its best-available GIS data, shows that the portion of the Valles Caldera which Jemez Pueblo considers its “Exclusive Use Area, circa AD 1541” occupies a relatively small portion of the Valles Caldera's southwest corner.[64] See Nov. 4 Tr. at 1252:22-1253:5 (Luebben, Whatley), 1260:20-1261:1 (Luebben, Whatley); Plaintiff's Demonstratives Notebook, PXDem20 (undated)(moved December 13, 2018, at trial, admitted May 15, 2019, as Jemez Pueblo's Ex. 582).

         130. Jemez Pueblo did not consult with other Pueblos for its work on the Jemez Pueblo Ancestral Land Project, and its maps, therefore, do not depict other Tribes' understanding of Jemez Pueblo's ancestral boundaries. See Nov. 4 Tr. at 1368:3-15 (Leonard, Whatley).

         131. Two maps that Jemez Pueblo prepared limit Jemez Pueblos' territory even more than other Jemez Pueblo-produced maps, and evince inconsistencies in Jemez Pueblo's efforts to map its territory; these maps include only Banco Bonito and thereby exclude most of the Valles Caldera from “Jemez Province.” E.g., Barry Price Steinbrecher and Paul Tosa, The Hemish Footprint: Ethnoarchaeological Perspectives on Movement and Connectivity in the Landscape Powerpoint at 2, 8 (undated), admitted October 30, 2018, at trial as United States' Ex. DX-SM (“The Hemish Footprint”). See, e.g., Oct. 30 Tr. at 309:17-311:4 (Dykema, Tosa), id. at 315:21-316:3 (Dykema, Tosa)(identifying Tosa, Ferguson, and Steinbrecher as the individuals that prepared the two maps); id. at 312:12-23 (Dykema, Tosa)(describing the Jemez “province, ” or “footprint” depicted in The Hemish Footprint on pages two and eight).

         132. Jemez Pueblo's map entitled “Hemish ancestral territory after A.D. 1250” includes lands that Santa Clara, Cochiti, Zia, and Santa Ana Pueblos owned and occupied.[65] E.g., Nov. 6 Tr. at 1898:21-1900:14 (Marinelli, Ferguson)(affirming that Ferguson's Jemez ancestral territory map includes lands that Santa Clara, Zia, and Cochiti Pueblos currently own). See, e.g., Nov. 30 Tr. at 4745:14-4746:24 (Marinelli, Anschuetz)(asserting the Ferguson's Jemez ancestral territory map overlaps with other Pueblo's archeological districts); Anschuetz Report at 15 (mapping Pueblos affiliated with the Jemez Mountains). Compare Ferguson Report at 62 (mapping ancestral territory that encompasses and extends approximately eighteen miles north of the Valles Caldera) with Anschuetz Rebuttal Report at 39 (mapping multiple Pueblos locations within Ferguson's Jemez ancestral territory map).

         133. The Jemez ancestral territory map's references to Jemez Pueblo's ancestral lands as its ancestral “domain” does not equate to “control” over those lands.[66] Nov. 6 Tr. at 1900:15-1901:1 (Marinelli, Ferguson).[67]

         134. Jemez Pueblo recognized in 2000, before the United States acquired the Valles Caldera, that other Tribes use the Valles Caldera, including Redondo Peak. See William Whatley, The Pueblo's Revised Senate Bill 2621 (Inclusion of Jemez NRA Language) in The Pueblo of Jemez Position Points & Management Recommendations, at 24 (dated Jan. 1, 1998), admitted October 29, 2018, at trial as United States' Ex. DX-HB-24 (proposing modifications to the Valles Caldera acquisition legislation to “protect and preserve archaeological and cultural sites that have historical, religious and traditional significance to the Pueblo of Jemez and other Native Americans”); Designation of Deposition Testimony -- Eusebio Toya at 36:24-37:17 (E. Toya), admitted November 20, 2018, at trial as United States' Ex. DX-JX-11.

         135. Jemez Pueblo has repeatedly recognized that its real property interests in the Valles Caldera are not absolute.[68] See Pueblo of Jemez Strategic Plan 2000 (dated Aug. 1, 2001), admitted November 20, 2018, at trial as United States' Ex. DX-IQ (depicting the “Jemez Province” as excluding all but the VNCP's southwest corner, i.e., the Banco Bonito)); Designation of Deposition Testimony -- Allen Gachupin at 41:12-18 (Gauchupin), admitted November 20, 2018, at trial as United States' Ex. DX-JX-2 (asserting that, in 1999, Jemez Pueblo was “hopeful and wishful that we would make progress toward somehow eventually regaining the Valles Caldera, ” because “we didn't have it”); Letter from Gov. Gachupin to M. Echaveste, Assistant to the President, at 2-3 (dated March 14, 2000), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 13 (seeking to purchase 200 acres within the Valles Caldera to obtain “direct ownership”).

         4. The Spanish Constrained Jemez Pueblo's Valles Caldera Use During the Spanish Colonial Period.

         136. Spanish explorers first encountered Jemez Pueblo in 1541 C.E. while exploring the Jemez Mountains.[69] See, e.g., Nov. 14 Tr. at 3361:15-25 (Luebben, García y Griego)(discussing Francisco Vázquez de Coronado's expedition from Mexico to present-day Kansas through parts of the southwestern United States between 1540 and 1542); Nov. 4 Tr. at 1263:15-20 (Whatley)(discussing Jemez Pueblo's population in 1541 C.E., i.e., Jemez Pueblo's first contact with the Spanish).

         137. Jemez Pueblo was among the last Pueblos that the Spanish encountered when traveling up the Rio Jemez, and Jemez Pueblo remained more geographically and linguistically isolated than other Pueblos during the Spanish colonial period.[70] See, e.g., Nov. 15 Tr at 3551:6-16 (García y Griego); Pueblo of Jemez Expert Witness Report by Dr. Manuel García y Griego[71] at 10-11, admitted October 29, 2018, at trial as Jemez Pueblo' Ex. PX 189 (“García y Griego Report”).

         138. The Jemez Plateau occupants that the Spanish explorers encountered in 1581 and 1582 C.E. did not constitute a single Tribe, but shared the same language and occupied at least ten villages in the modern-day Jemez Springs area.[72] See, e.g., Oct. 30 Tr. at 368:9-25 (Liebmann); id. at 425:16-23 (Liebmann); Nov. 14 Tr. at 3361:18-25 (García y Griego); García y Griego Report at 23.

         139. The Spanish began to permanently settle New Mexico in 1598 C.E. See, e.g., Oct. 30 Tr. 366:9-18 (Liebmann); García y Griego Report at 7.

         140. Spanish explorers, as early as 1602 C.E., mapped several Pueblos' locations, including the Pueblos of Cochiti, Jemez, Santa Ana, Santa Clara, [73] and Zia, in areas surrounding the Valles Caldera. See, e.g., Nov. 14 Tr. at 3378:15-3379:25 (Luebben, García y Griego); García y Griego Report at 23 (depicting a copy and reconstruction of a 1602 map of New Mexico that includes numerous Pueblos' locations).

         141. Although between 1598 and 1601 C.E., Spanish missionaries established a small mission at Guisewa, in modern-day Jemez Springs, they were unable to minister effectively to Jemez Pueblo until they built a mission at Walatowa in 1620.[74] See, e.g., Oct. 30 Tr. at 366:19-25 (Liebmann); García y Griego Report at 25.

         142. The Spanish, beginning in 1598 and culminating in 1621 C.E., forced Jemez Pueblo from its dispersed mountain communities into modern-day Walatowa.[75] See, e.g., Nov. 14 Tr. at 3378:15-19 (García y Griego); id. at 3380:2-6 (Luebben, García y Griego).

         143. The Spanish removed Jemez Pueblo members to Walatowa to consolidate the rebellious Jemez communities. See, e.g., Oct. 30 Tr. at 367-368:1-4 (Liebmann); Nov. 14 Tr. at 3369:3-15 (Luebben, García y Griego); id. at 3380:2-16 (García y Griego).

         144. Jemez Pueblo is the only Pueblo that the Spanish forcibly relocated.[76] See, e.g, Nov. 15 Tr. at 3448:11-17 (García y Griego)(“So the locations of the pueblos is not determined by the Spanish, except in the specific case of the Jemez, where they were forced to come down from the mountains from approximately disbursed communities, into what today is called Jemez Pueblo, and that the Hemish people referred to as Walatowa.”); Oct. 30 Tr. at 367:21-368:4 (Liebmann)(“But at Walatowa, the Spaniards seemingly established a new mission in that southern end of the valley, and then drew all the scattered pueblo people in.”).

         145. Jemez Pueblo members resisted Spanish removal efforts, and returned several times to their ancestral Jemez Mountains villages before and after the Pueblo Revolt. See, e.g., Nov. 14 Tr. at 3380:2-3381:25 (García y Griego); id. at 3448:11-17 (García y Griego).

         146. The Valles Caldera was public domain land during the Spanish period.[77] See, e.g., Nov. 14 Tr. at 3458:14-17 (Leonard, García y Griego); Nov. 15 Tr. at 3564:16-25 (García y Griego).

         147. Spain made to the Pueblos land grants that consisted of four-square league areas representing 17, 500 acres each, and, to prevent non-Indian encroachment on Pueblo lands, considered lands surrounding the grants as Spanish public domain. See, e.g., Nov. 14 Tr. at 3351:10-12 (Luebben, García y Griego); id. at 3395:1-10 (García y Griego).

         148. Spain made its land grant to Jemez Pueblo around 1700 C.E. and measured the grant from Walatowa's center. See, e.g., Nov. 14 Tr. at 3449:6-17 (Leonard, García y Griego); id. at 3450:21-25 (García y Griego).

         149. Although Spain granted some Pueblos more than 17, 500 acres based on aboriginal title claims, Jemez did not receive additional acres.[78] See, e.g., Nov. 4 Tr. at 3451:6-13 (Leonard, García y Griego)(affirming that the Spanish surveyor general recommended that Ysleta Pueblo receive 110, 000 acres based on its aboriginal title claim); García y Griego Report at 15.

         150. The Spanish did not recognize a Jemez Pueblo property interest in the Valles Caldera.[79] See, e.g., Oct. 30 Tr. at 584:24-585:14 (Marinelli, Liebmann)(affirming that the Spanish ended Jemez Pueblo's Banco Bonito occupation and removed Jemez Pueblo from the Valles Caldera region); Nov. 7 Tr. at 2168:20-2169:3 (Luebben, Madalena)(asserting that Spain “took ownership of our lands”).

         151. Spain's presence and colonial policies reduced Jemez Pueblo's population to below 1, 000 individuals by the seventeenth-century's end, and, during this period, many Jemez Pueblo warriors fled to other Tribes and remained for years in areas as far away as Arizona.[80] See, e.g, Oct. 30 Tr. at 578:21-579:11 (Marinelli, Liebmann)(discussing Jemez Pueblo's population decline between 1681 and 1696 C.E.); García y Griego Report at 29-30 (discussing decline in the Pueblos' populations and Pueblo members' flights to other Tribes during the period surrounding the Pueblo revolt).

         152. Spanish military forces defeated Jemez Pueblo in 1694 and 1696 C.E.[81] See, e.g., Nov. 14 Tr. at 3368:20-24 (García y Griego)(“[A]mong the fiercest battles was the attack led by the Spanish, but aided with auxiliaries from Zia and Santa Ana pueblos in 1694 when de Vargas[82]did the reconquest. And then you have another uprising in 1696.”); García y Griego Report at 27-29.

         153. Jemez Pueblo abandoned its large Jemez Province villages for several years after the Pueblo Revolt, [83] from approximately 1696 to 1703 C.E. See, e.g., Dec. 13 Tr. at 5607:5-18 (Marinelli, Liebmann); García y Griego Report at 28-29.

         154. After the Pueblo Revolt, around 1696 C.E., [84] some Jemez Pueblo members returned to their ancestral mountain villages, several of which Apache, Navajo[85] and Kewa peoples also occupied. See, e.g., Oct. 30 Tr. at 582:15 (Liebmann)(“[W]e know that Patokwa was occupied at least until 1716.”); Dec. 13 Tr. at 5605:13-5607:4 (Marinelli, Liebmann)(affirming that Jemez, Apache, Navajo, and Santo Domingo Pueblo members lodged at Patokwa and Boletsakwa in 1692-93 C.E.).

         155. The Spanish's “Miera y Pacheco” map from 1779 C.E. is the first document that geographically identifies Jemez Mountains' location, although a 1728 C.E. land grant to Cañada de Cochiti identifies the Jemez Mountain's western boundaries.[86] E.g., Nov. 14 Tr. at 3358:25-3559:22 (Luebben, García y Griego); García y Griego Report at 35.

         156. Jemez Pueblo had between 100 and 200 members in 1744 C.E.[87] See, e.g., Nov. 14 Tr. at 3370:22-3371:17 (García y Griego); Nov. 6 Tr. at 1916:11-1917:7 (Marinelli, Ferguson).

         157. Pueblo populations, including Jemez Pueblo, began to recover after the mid-1700s, and Pueblo populations have trended upward since then. See, e.g., Nov. 14 Tr. at 3362:14-24 (García y Griego); id. at 3461-3463:9-15 (García y Griego).

         158. Jemez Pueblo's population remained below 1, 000 individuals from 1700 C.E. through at least the early twentieth century.[88] See, e.g., Nov. 6 Tr. at 1916:11-1917:7 (Marinelli, Ferguson); García y Griego Report at 37-40.

         159. A Jemez Pueblo member's life expectancy in the early nineteenth century was “low, even by the standards of the time, especially for women.” García y Griego Report at 39. See, e.g., Nov. 14 Tr. at 3461:9-3462:8 (Leonard, García y Griego); García y Griego Report at 37-39.

         160. Jemez Pueblo's average family size was lower than other Pueblos' average family size, which means that relatively few Jemez Pueblo children survived to adulthood.[89] See, e.g., Nov. 14 Tr. at 3461:15-3462:3 (Leonard, García y Griego); García y Griego Report at 37-38 (describing Jemez Pueblo's census results as 3.4 persons per family while other Pueblos averaged up to five people per family).

         161. Although disease and warfare with the Spanish resulted in Jemez Pueblo's low population, relocation to Walatowa, and removal from the Banco Bonito during the Spanish colonial period, Jemez Pueblo did not cease using the Valles Caldera.[90] See e.g., Oct. 30 Tr. at 436:13-437:25 (Liebmann); Nov. 14 Tr. at 3364:4-10 (García y Griego); id. at 3364:11-13 (García y Griego).

         162. Jemez Pueblo's low population during the eighteen and nineteenth centuries made it vulnerable to Navajo and Apache raids on Jemez Pueblo's animals and food.[91] See, e.g., Nov. 14 Tr. at 3372:1-14 (Luebben, García y Griego); García y Griego Report at 39-40.

         163. Jemez Pueblo could not defend against Navajo, Apache, Ute, and Comanche attacks throughout the eighteenth century given its diminished military capabilities, [92] which was a function of its small population size. See, e.g., Nov. 15 Tr. at 3364:17-21 (Luebben, García y Griego)(“[T]he military capability of the pueblos, the Hemish and other pueblos, as well, would have been primarily a function of their population size.”); id. at 3365:14-3366:6 (Luebben, García y Griego).

         164. Navajo, Apache, and Ute Tribes grew in power during the seventeenth century after adopting an equestrian lifestyle, which allowed for an “escalation in raiding and violence that . . . transformed the Valles Caldera into a dangerous place” and, among other things, decreased Jemez Pueblo's access to Cerro del Medio obsidian.[93] Oct. 30 Tr. at 585:18-586:25 (Marinelli, Liebmann). See Landscapes of Signification at 656 (“The same factors that caused the decrease in Jemez['] use of Cerro del Medio obsidian prior to the 1680 Revolt came into play yet again, with hostilities between the Pueblos and their Navajo and Apache neighbors waxing in the years after the Spanish reconquest of New Mexico.”).

         165. The Spanish used Jemez warriors to fight against the Navajos, Apaches, Utes, and Comanche in the seventeenth and eighteenth centuries, [94] and to implement a defensive strategy against Navajo attacks. See, e.g, Nov. 14 Tr. at 3365:14-19 (García y Griego); id. at 3369:16-3370:9 (Luebben, García y Griego); id. at 3385:2-7 (García y Griego).

         166. Since at least 1300 C.E., Jemez Pueblo lacked the military power and population to prevent Tewa and Keres Pueblos, and more numerous and powerful Navajo and Apache Tribes, from accessing the Valles Caldera. See, e.g., Nov. 30 Tr. at 4729:6-4734:4 (Marinelli, Anschuetz); Anschuetz Rebuttal Report at 26-35.

         167. The Navajo camped and worshiped in the Valles Caldera, and worshiped at Redondo Peak, because Redondo Peak is the Navajo's sacred eastern mountain. See, e.g., Dec. 3 Tr. at 4992:23-4993:6 (Ferguson); Frederick W. Sleight, The Navajo Sacred Mountain of the East: A Controversy at 384 (1951), admitted October 29, 2018, at trial as United States' Ex. DX-CB)(identifying Redondo Peak as the Navajo Nation's Holy Mountain of the East); Navajo Indians I at 125.

         168. Navajo peoples at least twice drove Jemez Pueblo members from the Valles Caldera. See, e.g., Nov. 6 Tr. at 1958:24-1961:19 (Marinelli, Ferguson).

         169. Jemez Pueblo did not continuously graze its herd within the Valles Caldera between 1629 and 2000 C.E. See, e.g., Nov. 15 Tr. at 1915:19-25 (Marinelli, Ferguson); Ferguson Report at 67.

         5. Jemez Pueblo Was Not the Valles Caldera's Primary User During the Period After the United States Acquired New Mexico from Mexico.

         170. As part of the postwar settlement between the United States and Mexico[95] in 1848, the Treaty of Guadalupe-Hidalgo provided that the United States would evaluate all land grants from the Spanish and Mexican governments, and, if found valid, the United States would honor such grants. See Treaty of Guadalupe Hidalgo, U.S.-Mex., Feb. 2, 1848, art. VIII, 9 Stat. 922, 928-30.

         171. In 1851, United States Army contractors, pursuant to United States Army directives, established a hay camp within the Valles Caldera. See, e.g., Trial Transcript at 4182:1-16 (taken Nov. 19, 2018), filed February 12, 2019 (Doc. 359)(“Nov. 19 Tr.”)(Petti, Kehoe); VCNP Land Use History at 27.

         172. Jemez Pueblo did not dispute the United States Army's presence in the Valles Caldera. See, e.g., Nov. 14 Tr. at 3385:21-3386:2 (García y Griego)(“I don't think that the pueblos would have wanted to attack the U.S. Army, this Army had obviously superior military capabilities.”); VCNP Land Use History at 27.

         173. On July 2, 1851, near the Jemez River's East Fork, thirty-five to forty Navajo raiders attacked the hay camp and stole six horses and forty-three mules. See, e.g., Kehoe Report at 6-7; VCNP Land Use History at 27.

         174. Eleven Jemez Pueblo herders tending cattle near the hay camp attacked the Navajo raiders, killing two, and recapturing five mules. See, e.g., Nov. 15 Tr. at 3555:2-12 (Luebben, García y Griego); Kehoe Report at 6-7; VCNP Land Use History at 27.

         175. In 1856, New Mexico militiamen tracked Navajo Nation raiders into the Valle Grande, where Navajo Nation members were tending livestock, killed two Navajo Nation members, and recovered a stolen flock. See, e.g., VCNP Land Use History at 27; Kehoe Report at 7.

         176. In the late 1800s, Jemez Pueblo stockmen attacked a Navajo group residing in the Valle Grande's southwest corner, killing at least one and driving the others from their Valles Caldera camp. See, e.g., Nov. 19 Tr. at 4213:3-6 (Marinelli, Kehoe); VCNP Land Use History at 27; Ferguson Report at 56.

         177. The United States Army and associated contractors were the Valles Caldera's only occupants in the 1850s and 1860s, although multiple Pueblos, Tribes and non-Indians wandered throughout the area during this period. See, e.g., 4169:24-4170:8 (Marinelli, Kehoe); Kehoe Report at 8; VCNP Land Use History at 27-28.

         178. In August, 1863, the United States Army established a military outpost on the Valle Grande (“Valle Grande outpost”) that operated continuously until May, 1864. See, e.g., Letter from Lieutenant Samuel Barr to Captain Ben Cutler at 1 (dated May 31, 1864), admitted October 29, 2018, at trial as United States' Ex. DX-O (reporting three officers and thirty-seven enlisted men stationed at the Valle Grande outpost); Letter from Lieutenant Barr to Assistant Adjutant General at 1 (dated June 4, 1864), admitted October 29, 2018, at trial as United States' Ex. DX-P; VCNP Land Use History at 27; Kehoe Report at 7.

         179. No Pueblos or Tribes were using the Valle Grande to graze animals when the United States Army established the Valles Grande outpost. See, e.g., Nov. 16 Tr. at 4008:8-22 (Marinelli, Kehoe); Letter from Lieutenant Erastus W. Wood to Captain Ben Cutler at 1 (dated Aug. 24, 1863), admitted October 29, 2018, at trial as United States' Ex. DX-F (noting that “[t]here are no Indians in the neighborhood and no sign of any having been here for several weeks”).

         180. During the months in which the United States Army occupied the Valles Caldera, the commanding officers recorded Pueblo Indians and Hispanics traveling unhindered across the Valle Grande. See, e.g., Letter from Lieutenant Charles Curtis to Captain Ben Cutler at 1 (dated Dec. 27, 1863), admitted October 29, 2018, at trial as United States' Ex. DX-M; Letter from Lieutenant Charles Curtis to Captain Ben Cutler at 1 (dated Jan. 5, 1864), admitted October 29, 2018, at trial as United States' Ex. DX-N.

         181. In September, 1863, local Hispanics requested and received the United States Army's permission to bring their families and livestock onto the Valle Grande for the winter, and no Indians opposed or interfered with this activity. See, e.g., Letter from Lieutenant P.A. J. Russell to Captain Ben Cutler at 1 (dated Sept. 17, 1863), admitted October 29, 2018, at trial as United States' Ex. DX-I; Letter from Captain Ben Cutler to Lieutenant P.A. J. Russell at 1 (dated Sept. 1863), admitted October 29, 2018, at trial as United States' Ex. DX-H.

         182. In September, 1863, United States Army soldiers from the Valle Grande outpost, and approximately fifty Ute, Santa Clara Pueblo, and San Ildefonso Pueblo warriors trailed Navajo raiders from the Valles Caldera to Walatowa, where the Navajos were receiving shelter from Jemez Pueblo. See, e.g., Nov. 16 Tr. at 4008:23-4016:11 (Marinelli, Kehoe); Letter from Lieutenant P.A. J. Russell to Captain Ben Cutler at 1-2 (dated Oct. 1, 1863), admitted October 29, 2018, at trial as United States' Ex. DX-J (“Oct. 1863 Letter”); Kehoe Report at 8, 62-66.

         183. Jemez Pueblo leaders permitted the United States Army to search Walatowa, whereupon the Army discovered, captured, and killed several Navajo, and retrieved Santa Clara Pueblo's and San Ildefonso Pueblo's stolen livestock.[96] See, e.g., Nov. 16 Tr. at 4008:23-4016:11 (Marinelli, Kehoe); Oct. 1863 Letter at 1-2; Kehoe Report at 8, 62-66.

         184. Jemez Pueblo had poor relations with Santa Clara Pueblo and San Ildefonso Pueblo in the nineteenth century. See, e.g., Oct. 1863 Letter at 1 (quoting the Santa Clara war party leader as saying that Jemez Pueblo was “little better than the Navajo”); Kehoe Report at 64.

         185. In October, 1863, a Navajo force totaling approximately 200 warriors attacked the Army's Valle Grande outpost and succeeded in stealing the outpost's cattle herd. See, e.g., Letter from Lieutenant Charles Curtis to Captain Ben Cutler at 1 (dated Oct. 30, 1863), admitted October 29, 2018, at trial as United States' Ex. DX-K; Kehoe Report at 9.

         186. In late December, 1863, the United States Army encountered, and assisted, a Santo Domingo Pueblo war party pursuing Navajo raiders through the Valles Caldera. See, e.g., Nov. 16 Tr. at 4017:2-4018:4 (Marinelli, Kehoe); Kehoe Report at 9; Letter from Lieutenant Charles Curtis to Captain Ben Cutler at 2 (dated Dec. 27, 1863), admitted October 29, 2018, at trial as United States' Ex. DX-M.

         187. In the 1880s, “Jemez Country” excluded, at a minimum, the clear majority of the Valles Caldera. A.F. Bandelier, [97] Final Report of Investigations Among the Indians of the Southwestern United States, Carried on Mainly in the Years from 1880-1885 at 201-02 (1892), pages 139-218 admitted November 7, 2018, at trial as United States' Ex. DX-S (“Indian Investigations”)(“The country inhabited by the Jemez tribe lies west of the Valles.”).

         188. When the United States acquired New Mexico from Mexico, the Valles Caldera was a thoroughfare that many Indian and non-Indian peoples accessed and used. See, e.g., Nov. 16 Tr. at 4004:16-4008:4 (Marinelli, Kehoe); Letter from Brigadier General James H. Carleton to [illegible] at 1 (dated Aug. 1863), admitted October 29, 2018, at trial as United States' Ex. DX-E; VCNP Land Use History at 27-28.

         6. The Valles Caldera's Private Owners Restricted Jemez Pueblo's and Other Pueblo's Valles Caldera Use.[98]

         189. In 1855, Luis Maria Cabeza de Baca's heirs (“Baca heirs”) submitted a land claim to the Surveyor General of New Mexico, pursuant to the Treaty of Guadalupe Hidalgo, seeking to determine their 1821 Mexican land grant's validity for land near Las Vegas, New Mexico. See, e.g., VCNP Land Use History at 37; Kehoe Report at 10.

         190. In 1860, the Office of the Surveyor General of New Mexico determined that, although the Baca heirs' grant was valid, it largely overlapped with the equally valid Town of Las Vegas Community Grant. See, e.g., VCNP Land Use History at 37; Kehoe Report at 10.

         191. On June 21, 1860, to settle the conflict between the Baca heirs' grant and the Town of Las Vegas Community Grant, the United States Congress enacted the Act of June 21, 1860, 12 Stat. 71, authorizing the Baca heirs to select up to five unspecified square tracts of vacant land totaling up to 496, 447 acres anywhere within the Territory of New Mexico. See, e.g., Nov. 15 Tr. at 3516:17-18 (García y Griego); Kehoe Report at 10; VCNP Land Use History at 37-38.

         192. On December 11, 1860, the Baca heirs selected their first parcels of land in and adjacent to the Valles Caldera. See, e.g., Pueblo of Jemez v. United States, Oct. 25 MOO at 7, 350 F.Supp.3d at 1060 (citing United States v. Redondo Development Co., 254 F. at 657); VCNP Land Use History at 38; Certification of Surveyor General's Office, Santa Fe, signed by A. P. Wilbar (dated Dec. 11, 1860), admitted October 29, 2018, at trial as United States' Ex. DX-C (noting that the lands were “known to be vacant and not mineral”); Pueblo of Jemez Strategic Plan 2000 at 8 (“Baca Location No. 1 was surveyed . . . and patented to private owners. . . . In this way, large parts of [Jemez Pueblo's] aboriginal lands were permanently lost.”).

         193. On September 30, 1876, the General Land Office approved the first Baca Location No. 1 survey. See Surveyor General's Office, Santa Fe, New Mexico, Field Notes of the Survey of Baca Location No. 1 at 15 (dated Sept. 30, 1876), admitted October 29, 2018, at trial as United States' Ex. DX-Q; VCNP Land Use History at 33; Kehoe Report at 10-11.

         194. The Baca heirs established grazing operations within the Valles Caldera in the 1870s, and, by the late 1800s, sheep and other livestock grazed Baca Location No. 1 in significant numbers. See, e.g., Surveyor General's Office, Santa Fe, New Mexico, Field Notes of the Survey of Baca Location No. 1 at 14-15 (dated Sept. 30, 1876), admitted October 29, 2018, at trial as United States' Ex. DX-Q; Indian Investigations at 200; VCNP Land Use History at 37; Kehoe Report at 11-12.

         195. By 1883, the Baca heirs had established two ranches within the Valles Caldera. See, e.g., Nov. 16 Tr. at 4023:2-12 (Marinelli, Kehoe); Dan Scurlock, Pastores of the Valles Caldera, 88 El Palacio, at 3-5 (1982), pages 2-11 admitted October 29, 2018, at trial as United States' Ex. DX-FP (“Pastores of the Valles Caldera”); Kehoe Report at 11.

         196. Herders paid the Baca heirs to graze livestock on the Valle Grande. See, e.g., Pastores of the Valles Caldera at 3-5; Kehoe Report at 11.

         197. Large flocks of sheep grazed the Valles Caldera in the 1870s and 1880s. See, e.g., Nov. 16 Tr. at 4026:2-10 (Marinelli, Kehoe); Kehoe Report at 11; Indian Investigations at 200.

         198. Jemez Pueblo did not own sheep in the 1870s and 1880s. See, e.g., Nov. 16 Tr. at 4024:10-22 (Marinelli, Kehoe); Kehoe Report at 11-12.

         199. In January, 1899, the District Court of the County of Bernalillo, Territory of New Mexico, ordered Baca Location No. 1's sale at public auction to resolve competing interests acquired through inheritance and purchase. See Kehoe Report at 13; VCNP Land Use History at 38-39.

         200. On March 18, 1899, the District Court of the County of Bernalillo, Territory of New Mexico, approved Baca Location No. 1's sale to Frank Clancy, who on the same day sold Baca Location No. 1 to the Valles Land Company, which Mariano Otero and his son owned. See Kehoe Report at 13; Whitney v. Otero, CIV. No. 3632, Order Approving Report and Confirming Sale at 1-2 (dated March 18, 1899), admitted October 29, 2018, at trial as United States' Ex. DX-Y; Bargain & Sale Deed, F. Clancy to Valles Land Co. at 100 (dated March 18, 1899), admitted October 29, 2018, at trial as United States' Ex. DX-X.

         201. In the early 1900s, the Valles Land Company charged livestock operators grazing fees to place their livestock on the Baca Location No. 1's range lands. See, e.g., Kehoe Report at 13 (“The Valles Land Company charged the following grazing fees per head: cattle and horse, $1 dollar; goats, 10 cents; and sheep, 6 cents.”); Pastores of the Valles Caldera at 4-5.

         202. On October 16, 1909, the Valles Land Company deeded Baca Location No. 1 to the Redondo Development Company, which concluded its purchase in 1913 after completing a series of installment payments totaling $247, 512.00. See, e.g., Nov. 16 Tr. at 3991:19-3993:3 (Marinelli, Kehoe); Warranty Deed, Valles Land Co. to Redondo Development Co. at 102 (dated Oct. 16, 1909), admitted October 29, 2018, at trial as United States' Ex. DX-AH; Deed of Trust, Redondo Development Co. to W. Strickler, Trustee for the Valles Land Co. at 103 (dated Oct. 16, 1909), admitted October 29, 2018, at trial as United States' Ex. DX-AH; Deed of Release, W. Strickler, Trustee, to Redondo Development Co. at 104 (dated Jan. 27, 1913), admitted October 29, 2018, at trial as United States' Ex. DX-AH.

         203. The Redondo Development Company leased Baca Location No. 1 to livestock operators who sub-leased the lands to other operators. See, e.g., U.S. Forest Service, Range Appraisal Report for the Santa Fe Nat'l Forest at 6 (dated Sept. 17, 1924), admitted October 29, 2018, at trial as United States' Ex. DX-BA (“Range Appraisal Report”); Kehoe Report at 14.

         204. The Redondo Development Company began fencing the Valles Caldera in 1910, which led to a dispute with the United States over Baca Location No. 1's boundary. See, e.g., Kehoe Report at 15; Letter from C. W. Stone, President of Redondo Development Company, Petition to Fred Dennett, Commissioner of the General Land Office at 1 (dated July 13, 1910), admitted October 29, 2018, at trial as United States' Ex. DX-AE; Memorandum from Assistant Attorney General, U.S. Department of Justice to Secretary of the Interior providing final decree in Cause No. 333, United States v. Redondo Dev. Co. in the District of New Mexico at 1 (dated Dec. 13, 1916), admitted October 29, 2018, at trial as United States' Ex. DX-AK (noting fencing effort and that Baca Location No. 1's owners prevailed against the United States).

         205. In 1917 and 1918, Frank Bond leased Baca Location No. 1 for livestock use, and then sub-leased his interests to many small operators, who paid Bond grazing fees based on the numbers of cattle or sheep grazed. See, e.g., Range Appraisal Report at 6; Kehoe Report at 15.

         206. As part of his lease agreement with Redondo Development Company, Bond agreed to finish fencing Baca Location No. 1's perimeter, and his men completed the fence around Baca Location No. 1 by the end of 1917. See, e.g., Letter from Frank Bond to P. T. Lonergan, BIA Superintendent, Pueblo Agency, BIA Superintendent, Pueblo Agency at 1 (dated July 21, 1917), admitted October, 29, 2018, at trial as United States' Ex. DX-AP; Inventory, Quemondo Sheep Co. at 4 (dated Nov. 20, 1917), admitted October, 29, 2018, at trial as United States' Ex. DX-AS.

         207. On December 14, 1918, the Redondo Development Company, and Frank and George Bond (“the Bonds”), entered into a memorandum of agreement to sell Baca Location No. 1 for $400, 000.00 through a series of installment payments. See, e.g., Nov. 16 Tr. at 3993:4-3995:16 (Marinelli, Kehoe); Mem. of Agreement between Redondo Development Co. and Frank and G. Bond for the Sale of Baca Location No. 1 at 276-81 (dated Dec. 14, 1918), admitted November 16, 2018, at trial as United States' Ex. DX-DJ (“Redondo MOA”).

         208. The Baca Location No. 1 sales agreement excluded the tract's forest resources, reserving to the Redondo Development Company and its successors the right to remove and sell all timber for a ninety-nine-year period. See, e.g., Nov. 16 Tr. at 3993:4-3995:16 (Marinelli, Kehoe); Redondo MOA at 276-81.

         209. The Bonds assumed possession of Baca Location 1 on January 1, 1919. See, e.g., Indenture Between Redondo Development Co. and George and Frank Bond at 22-25 (dated April 8, 1926), admitted October 29, 2018, at trial as United States' Ex. DX-BC; VCNP Land Use History at 42.

         210. Before 1920, Jemez Pueblo grazed animals on lands that the Forest Service owned and on privately held lands outside the Valles Caldera. See, e.g., Nov. 16 Tr. at 4046:17-4048:5 (Marinelli, Kehoe), id. at 4050:13-4051:12 (Marinelli, Kehoe); H. F. Goggeshall, Assistant Chief Special Officer, BIA, to W.E. Johnson, Chief Special Officer, 11/14/1910, and attached statement from Jose Romero, Governor of the Pueblo of Jemez, 10/6/1910, Statement of Jemez Governor Jose Romero (dated Oct. 6, 1910), admitted October 29, 2018, at trial as United States' Ex. DX-AF-3; Kehoe Report at 18-19.

         211. Bond insisted that Jemez Pueblo pay his standard fees if Jemez Pueblo wanted to graze its livestock within the Valles Caldera. See, e.g., Nov. 16 Tr. at 4027:16-4028:14 (Kehoe, Marinelli)(discussing the partido system[99] as requiring payment to the Valles Caldera's landowners in exchange for grazing rights); id. at 4033:2-16 (Kehoe, Marinelli)(asserting that Bond kept close tabs on Valles Caldera grazing activity); id. at 4049:3-25 (Kehoe, Marinelli)(discussing Bond's 1918 letter that required a Jemez member to pay grazing fees in exchange for Valles Caldera grazing rights); Letter from Frank Bond to Jose Antonio Pecos at 1 (dated June 19, 1918), admitted October 29, 2018, at trial as United States' Ex. DX-AV.

         212. Bond's grazing restrictions physically, spiritually, and psychologically harmed Jemez Pueblo. See, e.g., Nov. 6 Tr. at 1917:16-1920:6 (Marinelli, Ferguson)(discussing the physical, spiritual, and psychological harm that Bond's grazing restrictions did to Jemez Pueblo); Trial Transcript at 2585:25-2586:7 (taken Nov. 9, 2018), filed January 25, 2019 (Doc. 351)(“Nov. 9 Tr.”)(Marinelli, Madalena)(affirming that pre-2000 Valles Caldera restrictions caused Jemez Pueblo spiritual injury).

         213. Bond sought to maximize Baca Location No. 1's profitability by grazing as many livestock as possible without exceeding the Valles Caldera's carrying capacity. See, e.g., Nov. 16 Tr. at 4026:18-4030:21 (Marinelli, Kehoe); id. at 4032:6-4035:20 (Marinelli, Kehoe); Letter from Frank Bond to W. P. Cook at 1 (dated Jan. 6, 1933), admitted October 29, 2018, at trial as United States' Ex. DX-BI; Letter from Unsigned to M. C. de Baca at 1 (dated Nov. 23, 1928), admitted October 29, 2018, at trial as United States' Ex. DX-BE; Hispanic Villages of Northern New Mexico: A Reprint of the 1935 Tewa Basin Study at 216-17 (Marta Weigle, ed., 1975), pages 119-21, 212-19 admitted November 16, 2018, at trial as United States' Ex. DX-EF.

         214. In a 1933 letter, the New Mexico State Game Warden asked Bond to continue to keep certain streams within Baca Location No. 1 open to the public for fishing. See, e.g., Letter from Elliott Barker, State Game Warden, to Frank Bond at 1 (dated June 3, 1933), admitted October 29, 2018, at trial as United States' Ex. DX-BJ; Kehoe Report at 24.

         215. Jemez Pueblo members sought Bond's permission to access the Valles Caldera for traditional purposes.[100] See, e.g., Nov. 1 Tr. at 1120:3-21 (Weslowski); Weslowski Notes at 1 (undated), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 184.

         216. The Bonds granted Zia Pueblo permission to visit cultural and religious sites within the Valles Caldera on an ad hoc basis. See, e.g., Religious Freedom at 32 (“Bond gave the Indians permission when asked.”).

         217. In the 1920s, a conflict between Bond and Jemez Pueblo resulted in Bond prohibiting Jemez Pueblo from grazing in the Valles Caldera. See, e.g., High Altitude Adaptations at 115; Designation of Deposition Testimony -- Romero at 37:3-38:18, admitted November 20, 2018, at trial as United States' Ex. DX-JX-4 (Romero)(stating that for three generations the Romero family has not grazed cattle within the Valles Caldera), id. at 40:6-23 (Romero)(affirming that Jemez Pueblo horse grazing in the Valles Caldera occurred before 1920), id. at 82:21-83:12 (Romero)(affirming that Jemez Pueblo was not allowed to graze cattle in the Valles Caldera so long as the Bonds and Dunigans owned it).

         218. The New Mexico Lumber and Timber Company began commercial logging operations on Baca Location No. 1 in 1935 in the Valles Caldera's southwest corner. See, e.g., D. Lang, Logging Engineer, U.S. Forest Service, Report on the Baca Location Logging at 1 (dated May, 1936), admitted October 29, 2018, at trial as United States' Ex. DX-BM; Craig Martin, Valle Grande: A History of the Baca Location No. 1 at 85-86 (2003), admitted November 15, 2018, at trial as United States' Ex. DX-JO (“Valle Grande”)(discussing Valles Caldera logging operations in the 1930s); Kehoe Report at 26.

         219. Loggers resided in cabins on Banco Bonito when the New Mexico Lumber and Timber Company logged the Banco Bonito in the mid-1930s. See, e.g., D.M. Lang, Logging Engineer, U.S. Forest Service, Memorandum for File at 1-2 (dated June 25, 1936), admitted October 29, 2018, at trial as DX-BO; Valle Grande at 85-86; Kehoe Report at 26.

         220. John Collier, Commissioner of Indian Affairs in the President Franklin D. Roosevelt administration, criticized the New Mexico Lumber and Timber Company's intensive logging operations and warned of the dire environmental consequences to Pueblos and other communities in the affected watershed. See, e.g., Report on the Baca Location Logging at 1; Collier Warns Jemez Forest Being Ruined, Albuquerque J., June 17, 1936, at 1, 4, admitted October 29, 2018, at trial as United States' Ex. DX-BN; Kehoe Report at 26.

         221. By the early 1940s, New Mexico Timber Company, which was the reorganized successor to the New Mexico Lumber and Timber Company, had harvested most of Baca Location No. 1's best timber, and thereafter shifted its logging operations northward into areas along Redondo, Sulphur, and San Antonio Creeks. See, e.g., D. M. Lang, Logging Engineer, U.S. Forest Service, Memorandum at 1 (Aug. 21, 1940), admitted October 29, 2018, at trial as United States' Ex. DX-BR; D. M. Lang, Logging Engineer, U.S. Forest Service, Memorandum (dated Nov. 22, 1940), admitted October 29, 2018, at trial as United States' Ex. DX-BS; Letter from Morton M. Cheney, Acting Regional Forester, U.S. Forest Service, to Forest Supervisor (dated Nov. 28, 1940), admitted October 29, 2018, at trial as United States' Ex. DX-BT.

         222. XXXXX See, e.g., High Altitude Adaptations at 111 (“ XXXXX); VCNP Land Use History at 58 XXXXX.Kehoe Report at 33.

         223. After Frank Bond's death in 1945, his son, Franklin Bond, transitioned Bond ranching operations from the sheep business and the partido system to hired cowboys and cattle grazing. See, e.g., Valle Grande at 67 (“In the 1950s as many as 12, 000 head of cattle grazed on the valles.”); Kehoe Report at 22.

         224. During the 1950s, Bond employees patrolled the Valles Caldera to discourage trespassers. See, e.g., Nov. 19 Tr. at 4057:13-20 (Marinelli, Kehoe); Kehoe Report at 23 (“The Bond family was interested not only in controlling the movement of livestock. Bond managers also worked to prevent trespass on Baca Location 1.”).

         225. In 1955, Bond employees chased a Zia member from Baca Location No. 1 at gunpoint. See, e.g., Florence Hawley Ellis, Religious Freedom of Zia and Jemez Pueblos vs. Use of Geothermal Power from Mt. Redondo at 42 (June 1981), admitted November 29, 2018, at trial as United States' Ex. DX-FC (“Religious Freedom”); Kehoe Report at 34.

         226. By 1961, the Bonds had fenced Baca Location No. 1's exterior boundaries, except for small portions along the east and north sides. See, e.g., Letter from George W. Miller, Acting Regional Director, National Park Service, Region Three (Santa Fe), to Director, and attachment: “Preliminary Report: Jemez Crater Area” at 2 (dated Sept. 1961), admitted October 29, 2018, at trial as United States' Ex. DX-CW (“The entire area is fenced and locked against free public access. Hunting and fishing are by permission of the owners only.”); Kehoe Report at 23.

         227. The December 17, 1962, grazing lease that the Bond family executed with the King Brothers of Stanley, New Mexico, required the lessees “to aid in patrolling against trespass and to keep gates on main roads locked at all times.” Grazing Lease at 1 (dated Dec. 17, 1962), admitted October 29, 2018, at trial as United States' Ex. DX-DD; Kehoe Report at 23 (quoting the Grazing Lease).

         228. On January 11, 1963, the Bond family sold Baca Location No. 1 to James Patrick Dunigan. See, e.g., Pueblo of Jemez v. United States, Oct. 25 MOO at 11 n.7, 350 F.Supp.3d at 1062 n.7 (citing Historical Dendroarchaeology at 337); VCNP Land Use History at 43.

         229. After Dunigan acquired Baca Location No. 1, his employees installed and repaired fencing along Baca Location No. 1's borders, and these borders remained fenced until the Dunigan family sold the Valles Caldera in 2000. See, e.g., Nov. 19 Tr. at 4170:1-4171:11 (Marinelli, Kehoe); Designation of Deposition Testimony -- Andrew Patrick Dunigan at 36:17-37:1, admitted November 20, 2018, at trial as United States' Ex. DX-JX-8 (Dunigan); id. at 48:17-49:4 (Dunigan); id. at 51:7-21 (Dunigan); Kehoe Report at 48.

         230. Dunigan permitted only authorized people on Baca Location 1, and Dunigan employees regularly patrolled the area to secure road gates and to control trespass, particularly during hunting season. See, e.g., Testimony of James P. Dunigan in Baca Land & Cattle Co. v. New Mexico Timber at 414:24-415:13 (dated July 19, 1969), admitted November 16, 2018, at trial as United States' Ex. DX-DS (Dunigan); Letter from George McDonald, General Counsel for Dunigan Enterprises, to M. J. Hassell, Regional Forester, U.S. Forest Service Region 3 at 2 (dated July 20, 1979), admitted November 16, 2018, at trial as United States' Ex. DX-EP; Hunting Agreement between Baca Land and Cattle Company, Inc. and Baca Outfitters, Inc. at 1, 6 (dated 1999), admitted November 20, 2018, at trial as United States' Ex. DX-HP (requiring at least four “full time employees” to patrol the Valles Caldera during elk season); Kehoe Report at 48.

         231. In the 1960s, Dunigan began a commercial elk hunting operation on Baca Location No. 1, and the New Mexico Department of Game and Fish controlled the number of elk hunters through permits that it issued to the Dunigan family, which reserved a small number for itself and sold the rest through its guided hunting business. See, e.g., Nov. 16 Tr. at 4045:13-4046:12 (Marinelli, Kehoe); Kehoe Report at 38.

         232. The Dunigans strictly prohibited hunting on Baca Location No. 1 without an official permit. See, e.g., Nov. 16 Tr. at 4045:13-4046:12 (Marinelli, Kehoe); Kehoe Report at 38; Designation of Deposition Testimony -- Margaret Loretto at 42:24-43:16, admitted November 20, 2018, at trial as United States' Ex. DX-JX-1 (Loretto)(asserting that Loretto's father's society ceased to hunt in the Valles Caldera in mid-1950s).

         233. During the Dunigan ownership, Baca Location No. 1 had a reputation among locals as a dangerous place, because Dunigan's employees would shoot at trespassers. See, e.g., Kehoe Report at 40-41; Religious Freedom at 32.

         234. In the early 1960s, New Mexico Timber responded to legislative and market developments by logging intensively areas within Baca Location No. 1 in a practice called clear-cutting, which removed virtually all trees from the targeted areas. See, e.g., VCNP Land Use History at 130-31; Kehoe Report at 35-37.

         235. In 1964, Dunigan sued New Mexico Timber in an effort to alter its logging practices. See, e.g., Nov. 16 Tr. at 3998:19-3999:22 (Marinelli, Kehoe); VCNP Land Use History at 130-31; Kehoe Report at 35-37.

         236. Between 1963 and 1971, New Mexico Timber built 1, 000 miles of road throughout the Valles Caldera, and observers could see the roads “corkscrewing” up the Valles Caldera's mountains and volcanic domes when the United States aquired the Valles Caldera in 2000. E.g. Nov. 16 Tr. at 3859:10-15 (Leonard, deBuys); Valle Grande at 89.

         237. In a 1971 letter to Dunigan's Baca Land and Cattle Company, Jemez Pueblo appealed for Redondo Peak logging operations to cease, stating that the Jemez people “do not understand how they came to lose proprietary interest in their ancient shrine, but they realize that you now exercise control over the place under the system of laws now in effect.” Letter from David R. Gardner to Baca Land and Cattle Company at 1 (dated Nov. 23, 1971), admitted November 19, 2018, at trial as United States' Ex. DX-DX. See, e.g., Kehoe Report at 45 (discussing the Letter from David R. Gardner to Baca Land and Cattle Company).

         238. New Mexico Timber clear-cut Redondo Peak. See, e.g., Kehoe Report at 46 (quoting Dunigan's game manager as stating that “New Mexico Timber ‘cut every bit of timber on Redondo Peak'”); Kehoe Rebuttal Report at 11-12.

         239. Dunigan purchased Baca Location No. 1's timber rights in 1972 and placed an eight-year moratorium on logging, which resumed in 1980. See, e.g., VCNP Land Use History at 130-31; Kehoe Report at 35-37.

         240. The Dunigans logged the Valles Caldera between the 1980s and 2000. See, e.g., U.S. Forest Service, Report on the Study of the Baca Location No. 1 at 30 (1993), admitted October 29, 2018, at trial as United States' Ex. DX-GR; Jeff Balmat and John Kupfer, Assessment of Timber Resources and Logging History of the Valles Caldera National Preserve at 20 (Dec. 28, 2004), admitted November 16, 2018, at trial as United States' Ex. DX-KB.

         241. The Dunigan family continued livestock operations on Baca Location No. 1 until they sold the property in 2000, sometimes grazing 7, 000 head of cattle annually. See, e.g., Nov. 16 Tr. at 3864:11-3865:6 (Leonard, deBuys)(asserting that the Dunigans shipped 6, 000 heifers and steers from Hawaii to the Valles Caldera during their final ownership year); Report on the Study of the Baca Location No. 1 at 23; Grazing Agreement at 2 (dated March 26, 1999), admitted November 20, 2018, at trial as United States' Ex. DX-HT (requiring between 5, 000 and 5, 500 cattle); Kehoe Report at 35, 37-38.

         242. Improvements constructed on Baca Location No. 1 during the Dunigan years included high end guest quarters, movie sets, and a stable for the Dunigan family's racehorses. See, e.g., Kehoe Report at 41; VCNP Land Use History at 114.

         243. The Dunigans restricted Jemez Pueblo's access to the Valles Caldera, including for religious activities. See, e.g., Nov. 4 Tr. at 1401:16-18 (Marinelli, Whatley)(affirming that the Dunigans did not open the Valles Caldera to Jemez Pueblo for religious activities); Designation of Deposition Testimony -- Eusebio Toya at 23:8-23 (E. Toya)(affirming that Jemez Pueblo “did not have open access to the Valles Caldera” as of 1969).

         244. Dunigan restrictions forced Zia Pueblo XXXXX See, e.g. Nov. 29 Tr. at 4651:6-4653:22 (Marinelli, Anschuetz)(XXXXX); Valles Caldera Religious Use at 53 (“ XXXXX); Religious Freedom at 30 (“ XXXXX. id. at 33 XXXXX .

         245. Dunigan restrictions forced Zia Pueblo's XXXXX. See, e.g., Valles Caldera Religious Use at 47-48 (“ XXXXX, at night. . . . . Periods of bright moonlight are avoided and no flashlights are used for fear of detection.”); Religious Freedom at 34 (“Periods of bright moonlight are avoided, and no flash lights are used. The fear, of course, is detection.”).

         246. The members of Zia Pueblo's religious societies regularly trespassed throughout Baca Location No. 1 during the Dunigan ownership period, typically at night. See, e.g., Religious Freedom at 35 (“[T]he religious society members have to sneak into the area and must hide while there because of the fences, guards, and No Trespassing signs.”); XXXXX. Jemez v. DOE, Summary Judgment Motion at 47 (“The visits of the Zia religious societies, either by groups or their officer representatives, continue, usually on foot, by night, and with great care to hide in restricted areas.”).

         247. The Dunigans granted Jemez Pueblo permission to visit cultural and religious sites within the Valles Caldera on an ad hoc basis. See, e.g., Designation of Deposition Testimony -- Andrew Patrick Dunigan at 31:14-15 (Dunigan)(“It was my understanding that [Jemez Pueblo] did have to ask permission to gain access to Redondo Peak.”); id. at 36:13-16 (“[I]f [Jemez Pueblo members] were visiting the ranch without having sought and been given permission, then we would deem that a trespass or unauthorized entry to the ranch.”); id. at 42:6-43:4 (Marinelli, Dunigan)(asserting that the Dunigans allowed Jemez Pueblo members access to the Valles Caldera “for religious or ceremonial, cultural purposes, ” but not for hunting, farming, grazing livestock, or harvesting timber); id. at 45:6-24 (Marinelli, Dunigan)(asserting that, “[o]n at least one occasion, ” the Dunigans denied Jemez Pueblo access to the Valles Caldera over safety concerns related either to third-party cattle shipping, or to game hunting activities).

         248. In response to the Dunigan's restrictions on Jemez Pueblo's Valles Caldera use, Jemez Pueblo sought in 1998 a Congressional Tribal trust transfer of a 200-acre parcel on Redondo Peak. See, e.g., Nov. 4 Tr. at 1405:19-24 (Whatley); id. at 1406:21-24 (Whatley); Designation of Deposition Testimony -- Eusebio Toya at 23:8-23 (E. Toya); id. at 41:11-18 (E. Toya)(asserting that, under the Dunigans, the Valles Caldera “became private land where they didn't open the land”).

         249. In 2000, the Dunigans secured water rights in the Rio Jemez watershed based on their claimed water use within the Valles Caldera, and, although Jemez Pueblo was a party to the litigation, Jemez Pueblo did not similarly seek water rights based on historic or then-present Valles Caldera water use. See, e.g., Nov. 19 Tr. at 4273:24-4275:16 (Marinelli, Yepa)(affirming that Jemez Pueblo's claims in United States ex rel. Pueblos of Jemez, Santa Ana & Zia v. Abousleman do not involve water use within the Valles Caldera's boundaries); see No. CIV 83-1041 JEC\ACE, Partial Final Judgement and Decree on Non-Pueblo, Non-Federal Proprietary Water Rights and Addendum at 12-14, 16-18 (D.N.M. Dec. 1, 2000)(Conway, J.), admitted November 19, 2018, at trial as United States' Ex. DX-IJ (identifying water rights within Baca Location No. 1, which the Dunigans possessed in 2000); United States ex rel. Pueblos of Jemez, Santa Ana & Zia v. Abousleman, No. CIV 83-1041 SC\ACE, Report of the Special Master at 5 (D.N.M. Oct. 1, 1991)(Campos, J.), admitted October 29, 2018, at trial as United States' Ex. DX-GL (“The determinations in this report are upon the claims asserted by the United States for the Pueblos, and by the Pueblos for themselves, to water rights based upon the Pueblos' present and past uses of water.”); United States ex rel. Pueblos of Jemez, Santa Ana & Zia v. Abousleman, No. CIV 83-1041 MV\ACE, Jemez Opening Brief Submitted by the Pueblo of Jemez at 5 (D.N.M. May 3, 2004)(Vázquez, J.), admitted Nov. 19, 2018, at trial as United States' Ex. DX-JY (specifying Jemez Pueblo's past and present water use); United States ex rel. Pueblos of Jemez, Santa Ana & Zia v. Abousleman, Opening Br. of Pueblos of Santa Ana, Zia, and Jemez and the United States, On Issues 1 and 2, No. CV 83-1041 MV/WPL at 4-7 (dated Aug. 19, 2014), admitted October 29, 2018, at trial as United States' Ex. DX-NY (“Numerous modern decisions have recognized that a tribe's long, uninterrupted (occupation of land gives rise to an aboriginal water right.”).

         250. Private owners prohibited Jemez Pueblo's unrestricted Valles Caldera use during the twentieth century.[101] See, e.g., Nov. 5 Tr. at 1537:9-20 (Chinana); id. at 1540:23-1541:18 (Chinana); id. at 1542:6-24 (Chinana); id. at 1580:11-1581:20 (Chinana); Nov. 9 Tr. at 2585:1-7 (Madalena); Nov. 15 Tr. at 3730:15-3731:9 (C. Toya); Trial Transcript at 4359:3-4360:19 (taken Nov. 20, 2018), filed February 12, 2019 (Doc. 360)(“Nov. 20 Tr.”)(V. Gachupin); id. at 4366:14-4367:6 (V. Gachupin); id. at 4361:6-17 (V. Gachupin); id. at 4362:20-4363:12 (V. Gachupin); id. at 4364:11-4365:7 (V. Gachupin); Kehoe Rebuttal Report at 17.

         7. Jemez Pueblo's Religious Societies Rarely Accessed the Valles Caldera During the Twentieth Century.

         251. XXXXX. See, e.g., Oct. 31 Tr. at 791:8-794:24 (Marinelli, Shendo)(XXXXX.); Nov. 5 Tr. at 1481:6-1482:13 (Johnson, Chinana)(XXXXX.); Nov. 5 Tr. at 1489:16-19 (Johnson, Chinana)(XXXXX).

         252. The Valles Caldera's private owners restricted Jemez Pueblo's XXXXX. See, e.g., Nov. 5 Tr. at 1557:7-1558:12 (Marinelli, Chinana); Trial Transcript at 4359:3-4360:19 (taken Nov. 20, 2018), filed February 12, 2019 (Doc. 360)(“Nov. 20 Tr.”)(Marinelli, V. Gachupin)(XXXXX).

         253. XXXXX. See, e.g., Designation of Deposition Testimony -- Joseph Toya at 71:9-72:1, admitted November 20, 2018, at trial as United States' Ex. DX-JX-3 (J. Toya) XXXXX; id. at 91:17-92:25 (J. Toya)(XXXXX); id. at 112:8-14 (J. Toya)(“ XXXXX ”).

         254. XXXXX See, e.g., Nov. 5 Tr. at 1732:7-1734:14 (Marinelli, V. Gachupin)(XXXXX); Kehoe Rebuttal Report at 17 XXXXX .

         255. XXXXX See, e.g., Nov. 5 Tr. at 1673:22 -1674:7 (Marinelli, A. XXXXX XXXXX; Kehoe Rebuttal Report at 17 XXXXX .

         256. The Valles Caldera's private owners did not permit Jemez Pueblo's XXXXX See, e.g., Nov. 1 Tr. at 1007:12-17 (Brar, Loretto); id. at 1012:11-1013:4 (Brar, Loretto)(XXXXX); Kehoe Report at 17 XXXXX .

         257. The Valles Caldera's private owners did not permit Jemez Pueblo's XXXXX . See, e.g., Nov. 9 Tr. at 2580:17-2581:3 (Marinelli, Madalena)(XXXXX); id. at 2583:11-2584:2 (Marinelli, Madalena)(XXXXX).

         258. The Valles Caldera's private owners restricted Jemez Pueblo's XXXXX See, e.g., Nov. 9 Tr. at 2853:22-2855:7 (Marinelli, J. Gachupin)(XXXXX) id. at 2852:5-17 (Leonard, J. Gachupin)(XXXXX).

         259. The Valles Caldera's private owners prohibited Jemez Pueblo's XXXXX See, e.g., Nov. 5 Tr. at 1544:4-7 (Chinana)(XXXXX); Nov. 6 Tr. at 1908:9-1911:10 (Marinelli, Ferguson)(XXXXX; Nov. 15 Tr. at 3502:21-3504:10 (Leonard, García y Griego)(XXXXX); Nov. 16 Tr. at 3907:5-3910:22 (Leonard, deBuys)(XXXXX); Kehoe Rebuttal Report at 17 XXXXX; Ferguson Report at 71 (XXXXX); id. at 105 XXXXX.

         260. The Valles Caldera's private owners restricted Jemez Pueblo's XXXXX See, e.g., Nov. 15 Tr. at 3505:2- 3507:18 (Leonard, García y Griego)(XXXXX; Kehoe Rebuttal Report at 17 XXXXX .

         8. Jemez Pueblo Jointly Used Portions of the Valles Caldera with Other Pueblos Though at Least the 1950s.

         261. In 1946, Congress enacted the Indian Claims Commission Act, 60 Stat. 1049 (“ICCA”), to “dispose of the Indian claims problem with finality” and to “transfer from Congress to the Indian Claims Commission the responsibility for determining the merits of native American claims.”[102] United States v. Dann, 470 U.S. 39, 45 (1985). See, e.g., Nov. 19 Tr. at 4062:2-4063:16 (Marinelli, Kehoe); Kehoe Report at 28.

         262. The ICCA required Pueblos and Tribes to base their land claims on a given area's exclusive use and occupancy in 1848, when the United States assumed political sovereignty over the Southwest. See, e.g., ICCA § 2, 60 Stat. 1049; VCNP Land Use History at 6.

         263. The ICCA includes a statute of limitations under which American Indians would relinquish any pre-August 13, 1946, claims against the United States not brought before August 13, 1951.[103] See, e.g., ICCA §§ 2, 12, 60 Stat. 1049; Pueblo of Jemez v. United States, 790 F.3d at 1147 n.13.

         264. Payment on a claim under the ICCA bars suit against the United States for any claims “touching on any of the matters” presented before the ICC. ICCA § 22(a), 60 Stat. 1049 (“[P]ayment of any claim, after a determination under the Act, shall be a full discharge of the United States of all claims and demands touching any of the matters involved in the controversy.”). See Pueblo of Jemez v. United States, 790 F.3d at 1170 (quoting ICCA § 22(a), 60 Stat. 1049).

         265. If Jemez Pueblo believed before August 13, 1951, that the United States had extinguished its aboriginal title to the Valles Caldera, Jemez Pueblo could have litigated its Valles Caldera claim before the Indian Claims Commission (“ICC”).[104] See, e.g., ICCA § 2, 60 Stat. 1049; United States v. Dann, 470 U.S. at 45.

         266. On July 9, 1951, within the ICCA's prescribed five-year limitations period, Jemez, Zia, and Santa Ana Pueblos filed a joint petition with the ICC. See, e.g., Amended Petition --Indian Claims Commission Docket No. 137, Pueblo de Zia, Pueblo de Jemez and Pueblo de Santa Ana v. United States (March 17, 1952), admitted October 29, 2018, at trial as United States' Ex. DX-CD (“Am. Pet. -- ICC Docket No. 137”); Pueblo of Zia, et al v. United States, 11 Ind. Cl. Comm. 131 (1962)(“Zia I”).

         267. In Jemez Pueblo's ICC litigation, Zia, Jemez, and Santa Ana Pueblos alleged that, in 1848, they held aboriginal title to approximately 520, 000 acres in Sandoval County, New Mexico, and that the United States thereafter extinguished their aboriginal title, because the United States permitted other, non-Indian persons to claim and possess those same lands. See Am. Pet. -- ICC Docket No. 137 at 2-3, 24-25 (alleging that the “three Pueblos . . . have a common interest” in 520, 000 acres of land in northern New Mexico); See United States v. Pueblo De Zia, 474 F.2d 639, 641 (Ct. Cl. 1973)(“Zia IV”).

         268. Although Baca Location No. 1 was not the subject of Jemez Pueblo's ICC litigation, Zia, Jemez, and Santa Ana Pueblos jointly surveyed and presented land-use evidence involving three areas, including one area that encompasses a portion of Baca Location No. 1. See, e.g., Nov. 19 Tr. at 4064:10-4067:25 (Marinelli, Kehoe); ICC Docket 137 -- Petitioner's Proposed Findings of Fact at 9 (June 3, 1957), admitted October 29, 2018, at trial as United States' Ex. DX-CM; Map, Petitioner's Ex. 14, ICC Docket. 137 at 1 (dated Dec. 10, 1051), admitted October 29, 2018, at trial as United States' Ex. DX-CC.

         269. Zia, Jemez, and Santa Ana Pueblos' 1951 ICC claim-area map encompasses 957, 440 acres, including Valles Caldera portions. See, e.g., Nov. 19 Tr. at 4065:24-4066:1 (Marinelli, Kehoe); Map, Petitioner's Ex. 14, ICC Docket 137 at 1.

         270. In 1957, Zia, Jemez, and Santa Ana Pueblos stated that they were presenting Area No. 3 use evidence, which includes Valles Caldera portions, “for the purpose of showing total land used by claimants.” Nov. 19 Tr. at 4064:10-4067:25 (Marinelli, Kehoe)(quoting Proposed Findings of Fact, ICC Docket 137); Petitioner's Proposed Findings of Fact, ICC Docket 137 at 9.

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         271. The Pueblos of Jemez, Santa Ana, and Zia jointly used shrines and other areas in Baca Location No. 1. See, e.g., Pueblos of Zia, Jemez, and Santa Ana v. U.S., Indian Claims Commission, Docket No. 137, Transcript of Testimony at 49-53, 59-60 (Dec. 5, 1956), admitted October 29, 2018, at trial as United States' Ex. DX-CK (Mann, P. Toya, O'Marr)(“ICC Tr.”).

         272. Redondo Peak is sacred to Zia, Jemez, and Santa Ana Pueblos. See, e.g., ICC Tr. at 51 (Mann, P. Toya); Kehoe Report 29-30 (XXXXX 273. Through at least the 1950s, the Pueblos of Jemez, Santa Ana and Zia shared XXXXX northeast of Redondo Peak. See, e.g., ICC Tr. at 59-60 (Mann, P. Toya) XXXXX; Kehoe Report at 29-30.

         274. Through at least the 1950s, the Pueblos of Jemez, Santa Ana and Zia shared XXXXX . See, e.g., ICC Tr. at 52 (Mann, Toya)(XXXXX); Kehoe Report at 29-30.

         275. Through at least the 1950s, Santa Clara Pueblo and San Ildefonso Pueblo XXXXX See, e.g., ICC Tr. at 84-85 (Rochow, P. Toya); Kehoe Report at 30 XXXXX.

         276. Through at least the 1950s, Santa Clara, San Ildefonso, Zia, Santa Ana, and Jemez Pueblos XXXXX See, e.g., Nov. 15 Tr. at 3746:3-19 (C. Toya)(XXXXX); ICC Tr. at 84-85 (Rochow, P. Toya); Kehoe Report at 30.

         277. Through at least the 1950s, the Pueblos of Jemez, Santa Ana and Zia shared equally the lands discussed before the ICC, which include Valles Caldera segments. See, e.g., Nov. 19 Tr. at 4073:1-4074:1 (Marinelli, Kehoe)(quoting Toya as affirming that Toya's tradition taught him that Jemez, Zia, and Santa Ana Pueblos used the claim area “‘as a unit, '” and that they “‘have commonly worked together many, many years, centuries, centuries ago.'” (quoting ICC Tr. at 85 (P. Toya))); ICC Tr. at 85 (P. Toya); Kehoe Report at 29-30.

         278. Through at least the 1950s, at least one Zia Pueblo religious society visited XXXXX See, e.g., Nov. 19 Tr. at 4075:2-22 (Marinelli, Kehoe); ICC Tr. at 203-04 (Mann, Medina).

         279. Jemez Pueblo's Exhibit No. 18 for its ICC litigation, entitled Sites Supporting the Land Claim of the Pueblos of Zia, Jemez, and Santa Ana, depicts several historical and religious sites associated with Zia, Jemez, and Santa Ana Pueblos after 1700, including Redondo Peak, which Jemez Pueblo designated as a religious site for both Jemez Pueblo and Zia Pueblo, and labeled with each Pueblo's respective name for the mountain.[105] See, e.g., Oct. 31 Tr. at 622:24-623:6 (Marinelli, Liebmann); Nov. 19 Tr. at 4068:1-20 (Marinelli, Kehoe); ICC Docket 137, Sites Supporting the Land Claim of the Pueblos of Zia, Jemez, and Santa Ana (Jemez Pueblo's ICC Ex. No. 18) at 1.

         280. Jemez Pueblo's ICC litigation's settlement provides that entry of final judgment “shall finally dispose of all rights, claims or demands which plaintiffs . . . have asserted or could have asserted, with respect to the subject matters of such case, ”[106] and bars Jemez Pueblo from “asserting any such rights, claims, or demands against defendant in any other or future action.”[107]Pueblo de Zia, Pueblo de Jemez, and Pueblo de Santa Ana v. United States of America -- Docket No. 137, Stipulation of Settlement at 1, 2, 4, 6 (Dec. 21, 1973), admitted October 29, 2018, at trial as United States' Ex. DX-EB; Pueblo of Jemez v. United States, Oct. 25 MOO at 10, Jemez Pueblo v. United States, 350 F.Supp.3d at 1062-63.

         281. The Pueblos of Jemez, Santa Ana, and Zia chose not to claim the Valles Caldera in their joint ICC claim, because they recognized that many Pueblos used the Valles Caldera. See, e.g., Religious Freedom at 21 (“[W]ith some knowledge of other Rio Grande pueblos similarly considering the Valles caldera [sic] area sacred and of ritual use, it was impossible to put it into a claim depending on sole and exclusive use of lands.”[108]); Kehoe Report at 31.

         9. Several Pueblos and Tribes Claimed Ownership to Areas Within the Valles Caldera During the 1950s.

         282. On August 11, 1951, Santa Clara Pueblo filed an ICC land claim petition that includes lands which extend into Baca Location No. 1's northeastern section.[109] See, e.g., Pueblo of Santa Clara v. United States, Docket No. 356, Petition at 4-5 (dated Aug. 11, 1951), admitted October 29, 2018, at trial as United States' Ex. DX-CA; Pueblo of Santa Clara v. United States, Docket 356, Map of Santa Clara Pueblo's Aboriginal Lands Claim prepared by the Bureau of Land Management at 1 (dated July, 1967), admitted October 29, 2018, at trial as United States' Ex. DX-DO;Kehoe Report at 31.

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         283. Santa Clara members historically passed through Baca Location No. 1 while traveling to and beyond Santa Clara Creek's headwaters for grazing, hunting, religious, and other purposes. See, e.g., Testimony of Pasqual Tafoya and JoseNarango at 15-18, 24-25, 37-47, Pueblo of Santa Clara v. United States, ICC Docket No. 356 (dated Sept. 7, 1954), admitted October 29, 2018, at trial as United States' Ex. DX-CI (Tafoya); Ferguson Report at 125 (noting that Santa Clara Pueblo and other Pueblos used a route through the Valles Caldera's northeast portion “to travel into Obsidian Valley” abutting Cerro del Medio); id. at 76 (“People from Santa Clara Pueblo used the northeastern portion of the Valles Caldera to graze livestock.”); id. at 88 (“Santa Clara Pueblo and other Pueblo communities collected obsidian in the Valles Caldera.”).

         284. On August 11, 1951, San Ildelfonso Pueblo filed an ICC land claim petition that identified the Valle Grande as its aboriginal territory's western boundary. See, e.g., Nov. 19 Tr. at 4082:18-4083:22 (Marinelli, Kehoe)(“This came in the context of a discussion about the traditional aboriginal lands of San Ildefonso Pueblo, and the questioner asked Mr. Aguilar: ‘And what is the boundary on the west side?' He answered: ‘The west side is the Baca location and the Valle Grande.'” (quoting Testimony of Joe Aguilar and Abel Sanchez, Pueblo of San Ildefonso, Docket No. 354 at 12 (dated Dec. 12, 1956), admitted October 29, 2018, at trial as United States' Ex. DX-CL (Aguilar))); Pueblo of San Ildefonso, Docket No. 354, Testimony of Joe Aguilar and Abel Sanchez at 12, 36-37, 39-47, 54-56 (Aguilar); Kehoe Report at 31-32.

         285. On January 9, 1958, the Jicarilla Apache Tribe filed an ICC land claim that included the entire Valles Caldera.[110] See, e.g., Nov. 19 Tr. at 4085:2-4087:12 (Marinelli, Kehoe)(describing a Jicarilla Apache map that “shows pretty clearly that the entirety of Baca Location 1 was included in Jicarilla's claim”); Jicarilla Apache Tribe v. United States, ICC Docket No. 22A, Amended Petition at 1, 3 (dated Jan. 9, 1958), admitted October 29, 2018, at trial as United States' Ex. DX-CP)(asserting that Jicarilla Apache had aboriginal title to an area running southwesterly to the northwest corner “of Santa Clara Pueblo Grant; thence following the west line of the Santa Clara and San Ildefonso Pueblo Grants to the north line of the Cochiti grant; thence west following the north line of Cochiti and Jemez Pueblo Grants to the crest of the Nacimiento Mountains”); Jicarilla Apache Tribe v. United States, ICC Docket No. 22A, Petitioner's Exhibit M, Jicarilla Apache Map Alleging Aboriginal Title to Entire Valles Caldera at 1 (dated 1958), admitted October 29, 2018, at trial as United States' Ex. DX-CO (depicting an area that encompasses the entire Valles Caldera).

         (Image Omitted)

         286. In the Jicarilla Apache Tribe's ICC litigation, Santa Clara, San Ildefonso, Santo Domingo, Taos, and Nambe Pueblos stipulated that the Jicarilla Apache Tribe's aboriginal exclusive-use area included the Valles Caldera. See, e.g., Nov. 19 Tr. at 4087:13-4089:3 (Marinelli, Kehoe)(“[T]he map indicates that Baca Location 1 remained part of the Jicarilla aboriginal land claim outside of the borders delineated with these pueblos.”); Jicarilla Apache Tribe v. United States, ICC Docket No. 22A, Map, Unnumbered Exhibit in ICC Proceedings at 1 (dated Sept. 24, 1962), admitted October 29, 2018, at trial as United States' Ex. DX-DB.

         287. The Jicarilla Apache Tribe made its ICC claim after stipulations and negotiations regarding territory disputes with the Pueblos of San Ildefonso, Santo Domingo, Santa Clara, Taos, and Nambe.[111] See, e.g., Nov. 19 Tr. at 4087:13-4089:3 (Marinelli, Kehoe); Santa Clara Pueblo, Restoration Assessment: Santa Clara Pueblo Lands in the “Baca Location #1” Ranch, New Mexico at 16 (dated May 1, 1998), admitted October 29, 2018, at trial as United States' Ex. DX-HH (“Santa Clara Restoration Assessment”)(“On May 4 1959 Santa Clara Pueblo signed a stipulation with the Jicarilla Apache Tribe which identified the boundaries between the two tribes' I.C.C. claims. This document included an exact description of the Pueblo's Ancestral Homeland boundary in the Baca Location #1.”).

         288. Jicarilla Apache Tribe's ICC claim includes the Valles Caldera portions that Santa Clara Pueblo and San Ildefonso Pueblo did not claim.[112] See, e.g., Nov. 19 Tr. at 4090:20-4095:21 (Marinelli, Kehoe)(summarizing and analyzing the Pueblos' ICC claims); Kehoe Report at 30-32.

         289. The Ute Tribe's aboriginal territory extended into the Valles Caldera following the Pueblo Revolt. See, e.g., Dec. 3 Tr. at 5058:14-5059:16 (Marinelli, Anschuetz); Nancy J. Akins, Traditional Use Areas in New Mexico at 169 (dated 1993), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 562.

         10. Many Pueblos and Tribes Opposed the Valles Caldera Geothermal Development Project.

         290. Pat Dunigan was an enthusiastic advocate for the development of geothermal energy on Baca Location No. 1, and in 1971, Dunigan's Baca Land and Cattle Company executed a lease that gave Union Oil Company of California (“Unocal”) the right to explore for and produce geothermal energy within Baca Location No. 1. See, e.g., Nov. 19 Tr. at 4098:3-4101:19 (Kehoe, Marinelli); Valle Grande at 96-97; Memorandum of Lease and Agreement between Dunigan Enterprises and the Baca Land & Cattle Co. and Union Oil Co. at 1 (dated April 19, 1971), admitted October 29, 2018, at trial as United States' Ex. DX-DW.

         291. In 1977, after drilling several wells, Unocal joined with PNM in preparing feasibility studies for a fifty-megawatt steam power plant near Redondo Creek, and, one year later, the companies entered into an agreement with the United States Department of Energy (“DOE”) in which the DOE agreed to fund partially the new plant as a demonstration project for geothermal power. See, e.g., Valle Grande at 97-98; Union Oil Company, Baca Project: Geothermal Demonstration Power Plant, Final Report at 1-4 (dated Dec. 1982), admitted November 19, 2018, at trial as United States' Ex. DX-FS.

         292. Geothermal development in the Valles Caldera lands centered on an area west and north of Redondo Peak. See, e.g., Baca Project: Geothermal Demonstration Power Plant, Final Report at 3; Valle Grande at 99.

         293. The DOE's Final Environmental Impact Statement for the Geothermal Demonstration Program in Baca Location No. 1 describes the Valles Caldera geothermal development project's negative impact on Indian religious values, based partly on public statements and written comments from Indians belonging to affected Pueblos. See, e.g., Final Environmental Impact Statement - Geothermal Demonstration Program, 50 MW Power Plant, Baca Ranch, Sandoval and Rio Arriba Counties, New Mexico at 212-17 (Jan. 1, 1980), admitted October 29, 2018, at trial as United States' Ex. DX-EU (“Final Envtl. Impact Statement”)(“[T]he Indians consistently cited infringement of religious freedom by the project as a matter of grave concern to them.”); Valle Grande at 98-99.

         294. The Final Envtl. Impact Statement includes a table that identifies Redondo Peak as a sacred site for the Pueblos of Cochiti, Jemez, San Juan, San Felipe, Santa Clara, Tesuque, and Zia, and states that several Pueblo had recently visited it. See, e.g., Final Envtl. Impact Statement at 167-68 (“In the recent past, visits [to Redondo Peak] have been made by groups from the Zia, Santa Ana, San Filipe [sic], Santa [sic] Domingo, Cochiti, some Pueblos north of Santa Fe, and the Jemez. . . . Some of the tribes, but not all, claim Redondo Peak as a boundary marker.”); Valle Grande at 98-99; Kehoe Report at 46-47.

         295. In 1979, Santa Clara Pueblo expressed to the DOE that the Valles Caldera geothermal development project would infringe on Santa Clara Pueblo's ability to practice its religion. See Final Envtl. Impact Statement at 692-94 (“We can state emphatically that the Santa Clara Pueblo does observe religious ceremonies within the project area. DOE has been unaware of these ceremonies because the Pueblo religious societies come to that area and pray in secrecy in order to preserve the power of their religious ceremonies.”).

         296. In 1979, Cochiti Pueblo testified that the Pueblos of Santa Clara, San Juan, San Ildefonso, Tesuque, Jemez, Zia, Santa Ana, Cochiti, and San Felipe had an interest in the Valles Caldera which required the geothermal development project developers to consult with them before taking further action. See, e.g, Nov. 19 Tr. at 4130:15-4131:7 (Marinelli, Kehoe)(stating that Cochiti Pueblo expressed in 1979 that “many pueblos in the area have a strong interest in Baca Location, ” and identifying interested Pueblos); Transcript of Public Hearing on Geothermal Demonstration Project at 266 (dated Aug. 30, 1979), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 236 (“[T]he studies made by the Western Mountain -- Western Research, did not take into consideration the thousands of Indians that are on the peripheral of the Baca location.”).

         297. The Final Envtl. Impact Statement notes that the Pueblos of Cochiti, Santa Clara, and Zia assert that they possess sacred sites within the Valles Caldera, although they refuse to divulge these sites' locations and how the Pueblos use them. See Final Envtl. Impact Statement at 213.

         298. In August, 1980, representatives from the Pueblos of Cochiti, Isleta, Jemez, Nambe, San Ildefono, San Juan, Santa Ana, Santa Clara, Santo Domingo, and Zia urged a halt to the Valles Caldera geothermal development project at a public regulatory hearing. See, e.g., Kehoe Report at 49-50 (“At the first hearing on August 26, 1980, officials from the following pueblos appeared and made statements: Cochiti, Isleta, Jemez, Nambe, San Ildefono [sic], San Juan, Santa Ana, Santa Clara, Santo Domingo, and Zia.”); Transcript of Proceedings in the Matter of the Petition of the Public Service Company of New Mexico for Authorizations Necessary to Participate in Baca Unit 1 (dated Aug. 26, 1980), admitted October 29, 2018, at trial as United States' Ex. DX-EW.

         299. In November, 1980, the Pueblos of Acoma, Santa Clara, and Jemez testified at a public regulatory hearing that the Valles Caldera geothermal development project would impinge on their and other Pueblos' and Tribes' ability to carry out ceremonies at Redondo Peak and the surrounding areas. See, e.g., In re PNM Authorizations at 7, 42-46, 101, 131-49, 189; Kehoe Report at 50.

         300. On January 16, 1981, eighteen Pueblos[113] sued the DOE to stop the Valle Caldera geothermal development project. See, e.g., Nov. 19 Tr. at 4099:5-18 (Marinelli, Kehoe)(“18 of the 19 pueblos at the time in New Mexico ultimately sued the Secretary of Energy to stop federal support for the project.”); Pueblo of Jemez, et al v, Secretary of Energy of the United States, Civil Action No. 81-0113 -- Complaint for Injunctive Relief at 1 (dated Jan. 16, 1981), admitted October 29, 2018, as United States' Ex. DX-FB (“Jemez v. DOE, Complaint”).

         301. The eighteen Pueblos' filings in the Valles Caldera geothermal development project litigation asserted that, as of 1981, many Tribes used the Valles Caldera and Redondo Peak. See, e.g, Nov. 19 Tr. at 4122:23-4128:12 (Marinelli, Kehoe)(discussing Valles Caldera geothermal development project testimony that describes Cochiti Pueblo's, Jemez Pueblo's, San Felipe Pueblo's, and Tesuque Pueblo's Valles Caldera use); Jemez v. DOE, Complaint at 5 (“[F]rom pre-Columbian times to the present, the plaintiff Pueblos have regularly and continuously practiced their respective religions on and near Redondo Peak”).

         302. XXXXX See, e.g., Pueblo of Jemez, et al. v. Secretary of Energy of the United States, No. CIV 81-0113, Memorandum in Support of Plaintiff's Motion for Summary Judgment and Attachment A at 50 (D.D.C. Oct. 24, 1981), admitted October 29, 2018, at trial as United States' Ex. DX-FH (“Jemez v. DOE Summary Judgment Motion”) XXXXX Hearings on the Draft Environmental Impact Statement -- Geothermal Demonstration Program, Baca Ranch, Sandoval and Rio Arriba Counties, New Mexico, Before the All Indian Pueblo Council at 47:8-14 (dated Aug. 30, 1979), admitted October 29, 2018, at trial as United States' Ex. DX-ER (“Aug. 30 AIPC Test.”)(Pino) XXXXX

         303. Through at least the 1970s, Zia Pueblo held sacred XXXXX See, e.g., Jemez v. DOE, Summary Judgment Motion at 50 (XXXXX); Aug. 30 AIPC Test. at 47:8-14 (Pino).

         304. Through at least the 1970s, Zia Pueblo's, Santa Clara Pueblo's, and other Pueblos' and Tribes' ancestors had their religious centers in the Valles Caldera and used Redondo Peak for ceremonial purposes. See, e.g, Nov. 19 Tr. at 4122:23-4128:12 (Marinelli, Kehoe); Jemez v. DOE, Summary Judgment Motion at 42-43 (“Since pre-Colombian times, Pueblo Indians have regularly and consistently practiced their religions on and near Redondo Peak. . . . Throughout these centuries, it appears these Pueblos have had their religious center at the Valles Caldera and have practiced their religious ceremonies there.”); Hearings on the Draft Environmental Impact Statement -- Geothermal Demonstration Program, Baca Ranch, Sandoval and Rio Arriba Counties, New Mexico, Before the All Indian Pueblo Council at 49:3-50:3 (dated Aug. 16, 1979), admitted October 29, 2018, at trial as United States' Ex. DX-EQ, (“AIPC Hearings”)(Tafoya)(asserting that Santa Clara Pueblo uses Redondo Peak and has other sacred locations within the Valles Caldera).

         305. XXXXX See, e.g., Jemez v. DOE, Summary Judgment Motion at 50 XXXXX; Kehoe Report at 42.

         306. The Valles Caldera and XXXXX are central to both Jemez Pueblo's and Zia Pueblo's beliefs. See, e.g., Jemez v. DOE, Summary Judgment Motion at 51 (asserting that Ellis' “own field notes going back to the early 1950s and [her] most recent studies of the Jemez and Zia Pueblos establish the central importance of the Valles Caldera and Redondo Peak to the religious beliefs of the Pueblos.”); Kehoe Report at 42-43.

         307. A map that Zia Pueblo created for the Valles Caldera geothermal development project litigation identifies Valles Caldera peaks, and associated place names, XXXXX See, e.g., Nov. 6 Tr. at 1964:11-1965:6 (Marinelli, Ferguson); Ellis Zia Map at 1 (dated 1981), admitted November 6, 2018, at trial as United States' Ex. DX-EY[114]; Jemez v. DOE, Summary Judgment Motion at 161 (depicting above-referenced 1981 map); Anschuetz Report at 159-165; id. at 193-95 (XXXXX).

         308. In 1981, the Pueblos of Jemez, Santa Clara, and Zia used the Valles Caldera to an extent greater than the fifteen other Pueblos that sued the DOE. See, e.g., Richard W. Hughes and Florence Hawley Ellis, A Preliminary Report on the Impacts of Geothermal Power Development in the Valles Caldera of NM on the Religious Practices and Beliefs of the Pueblo Indians at 5 (dated Aug. 18, 1980), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 110 (“Geothermal Impacts Report”)(“[T]he . . . list of Pueblos concerned with . . . religious use of the Redondo Peak . . . is exactly that list which covers the peoples whom . . . had their religious center there. The three which have continued that use to the greatest extent in the modern period are Jemez, Zia, and Santa Clara.”); Kehoe Report at 47-50.

         309. When Dunigan's companies attempted to intervene in the eighteen Pueblos' suit against the DOE, the eighteen Pueblos argued that the United States District Court of the District of Columbia should deny the motion to intervene, because the Dunigan's ownership interests were not at issue. See, e.g., Nov. 19 Tr. at 4148:2-4149:19 (Marinelli, Kehoe); Pueblo of Jemez et al. v. Secretary of Energy, No. CIV. 81-0113, Plaintiffs' Response to Intervention Motion of Dunigan Enterprises, et al. at 2 (D.D.C. Nov. 18, 1981), admitted October 29, 2018, at trial as United States' Ex. DX-FL (“Plaintiffs do not contest the ownership of -- nor do they seek any interest in --movants' land.”).

         310. In January, 1982, Unocal, PNM, and the DOE concluded that geothermal development within the Valles Caldera was not economically viable, and thereafter they terminated the project. See, e.g., Valle Grande at 100-01; Union Oil Company, Baca Project: Geothermal Demonstration Power Plant, Final Report at 14 (dated Dec. 1, 1982), admitted November 19, 2018, at trial as United States' Ex. DX-FS.

         311. In May 1982, Indians from multiple Pueblos, including Jemez Pueblo, testified against the Valles Caldera geothermal development project at a New Mexico Public Service Commission hearing; Jemez Pueblo testified that Redondo Peak “is a big cathedral for all Indian religions from the Indian tribes of New Mexico and others, ” and that many Tribes conduct religious services within the Valles Caldera. E.g., Transcript of Proceedings in the Matter of the Petition of the Public Service Company of New Mexico for Authorizations Necessary to Participate in Baca Unit 1 at 61-63 (dated May 27, 1982), admitted October 29, 2018, at trial as United States' Ex. DX-FQ. See, e.g., Transcript of Proceedings in the Matter of the Petition of the Public Service Company of New Mexico for Authorizations Necessary to Participate in Baca Unit 1 at 56-57, 77-78; Kehoe Report at 50 (“Rosendo Gachupin, a former governor of Jemez Pueblo, said that the opposition was due to the impact on ‘our religious services, usually participated in that area, not from the Jemez alone, also from the tribe[s] along the Rio Grande.'” (quoting Transcript of Proceedings in the Matter of the Petition of the Public Service Company of New Mexico for Authorizations Necessary to Participate in Baca Unit 1 at 62)).

         312. In the late 1980s, the Pueblos of Jemez, San Ildelfonso, San Juan, and Santa Clara opposed as an Indian religious rights infringement PNM's proposed Ojo Line Extension, which sought to construct a power line through the Jemez Mountains, including a six-to-seven mile segment cutting across the Baca Location No. 1. See, e.g., Kehoe Report at 51; Valles Grande at 114-15.

         313. Jemez Pueblo admitted in a hearing on the Ojo Line Extension before the New Mexico Public Service Commission that the Valles Caldera's private owners had restricted Jemez Pueblo's Valles Caldera access since well before 1987. See, e.g., Nov 19 Tr. At 4154:9-4156:18 (Marinelli, Kehoe); Test. of Joe S. Sando[115] re: Ojo Line Extension, New Mexico Public Serv. Comm'n Case No. 2382, at 34 (dated Aug. 10, 1982), admitted October 29, 2018, at trial as United States' Ex. DX-FR (“In the distant past Valle Grande served as an eagle catching area by an Eagle Catching society. This . . . society was responsible for supplying feathers to all the other societies in the tribe. . . . Already the eagle catchers cannot return but have to obtain the eagle feathers through government offices from Idaho.”); Kehoe Report at 51.

         11. Congressional Action and Legislation Recognizes that Many Tribes Have an Interest in the Valles Caldera.

         314. The Act of November 15, 1990, 104 Stat. 2762, known as the “Baca Location No. 1 Land Acquisition and Study Act, ” directed the United States Secretary of Agriculture to study the Valles Caldera and options for its acquisition. E.g., Kehoe Report at 52; VCNP Land Use History at 238 (“The stated purpose of the Act is . . . to authorize the Secretary of Agriculture to study the Baca Location to determine its ‘scenic, geologic, recreational, timber, mineral, grazing, and other multiple use attributes,' and to study options for federal acquisition of the property, in whole or in part.” (quoting 104 Stat. 2762)).

         315. Before acquiring the Valles Caldera, Congress consulted with several Tribes and Pueblos, including Santa Clara Pueblo, [116] Zia Pueblo, San Ildefonso Pueblo, and Jemez Pueblo, regarding the Pueblos' and the Tribes' historical, traditional, and cultural ties to the Valles Caldera, and their continued interests in maintaining their connections to the land through traditional practice. See, e.g., Trial Transcript at 5213:23-5216:1 (taken Dec. 5, 2018), filed February 19, 2019 (“Dec. 5 Tr.”)(Brar, Ziehe[117])(discussing Congress' consultation with Tribes regarding Redondo Peak); Kehoe Report at 53-56.

         316. Congress did not grant special rights or the ability to purchase Redondo Peak to any one Tribe, despite consulting with several Tribes regarding Redondo Peak's significance to them. See, e.g., Dec. 5 Tr. at 5213:23-5216:1; id. at 5216:2-5217:13 (Brar, Ziehe)(discussing consultation with Santa Clara Pueblo); id. at 5218:12-23 (Brar, Ziehe)(discussing consultation with San Ildefonso Pueblo); id. at 5218:24-5219:5 (Brar, Ziehe)(discussing consultation with Jemez Pueblo); id. at 5219:6-12 (Brar, Ziehe)(discussing consultation with Zia Pueblo); id. at 5219:24-5222:7 (Brar, Ziehe)(discussing Redondo Peak's significance to Zia Pueblo and Jemez Pueblo); id. at 5225:16-5226:7 (Brar, Ziehe)(discussing consultation with the Pueblos of Santa Clara, San Ildefonso, Zia, and Jemez); Kehoe Report at 53-56.

         317. In 1997, after the Dunigan family expressed a willingness to sell the Valles Caldera to the United States, the Honorable Jesse Francis Bingaman Jr., former United States Senator from the State of New Mexico, introduced a bill to have the Secretary of Agriculture purchase Baca Location No. 1 in its entirety. See, e.g., Mem. from Mike Menge, Committee on Energy and Natural Resources, United States Senate to Members Subcommittee on Forests and Public Land Management at 3 (dated March 7, 2000), admitted October 29, 2018, at trial as United States' Ex. DX-ID; Letter from Walter Dasheno, Governor of Santa Clara Pueblo, to Andy Dunigan at 1 (dated Sept. 26, 1997), admitted October 29, 2018, at trial as United States' Ex. DX-GY; Kehoe Report at 53.

         318. In 1997, Santa Clara Pueblo argued that any legislation addressing the United States' Baca Location No. 1 acquisition should transfer 9, 100 acres within Baca Location No. 1, including Santa Clara Creek's headwaters, to Santa Clara Pueblo. See, e.g., Letter from Walter Dasheno, Governor of Santa Clara Pueblo, to Andy Dunigan at 1; Tribal Council, Pueblo of Santa Clara, Resolution No. 97-18 at 1 (dated Oct. 22, 1997), admitted October 29, 2018, at trial as United States' Ex. DX-GZ.

         319. In February, 1998, San Ildefonso Pueblo informed Senator Bingaman that the ICC determined that lands within Baca Location No. 1 were San Ildefonso Pueblo's exclusive aboriginal lands and that San Ildefonso Pueblo also used, although not exclusively, most of the remaining lands in the grant through the Valles Caldera's private ownership period. See, e.g., Nov. 19 Tr. at 4160:8-4162:22 (Marinelli, Kehoe); Letter from Harvey A. Martinez, Governor, Pueblo of San Ildefonso to Senator Jeff Bingaman Regarding Federal Government Purchase of Valle Grande at 1 (dated Feb. 20, 1998), admitted October 29, 2018, at trial as United States' Ex. DX-HE (“San Ildefonso people have worked with present owners concerning access to Pueblo religious sites, for example in the Redondo Peak area.”).

         320. In 1998, San Ildefonso Pueblo conveyed to Congress that it ran livestock, hunted eagles, and procured minerals from the Valles Caldera both before and during the twentieth century. See, e.g., Nov. 19 Tr. at 4057:21-4062:1 (Marinelli, Kehoe); Nov. 29 Tr. at 4582:24-4583:16 (Marinelli, Anschuetz); Letter from Harvey A. Martinez, Governor, Pueblo of San Ildefonso, to Senator Jeff Bingaman Regarding Federal Government Purchase of Valle Grande at 1.

         321. In 1998, San Ildefonso Pueblo conveyed to the Honorable William T. Redmond, former United States Representative from the State of New Mexico, that the Valles Caldera contains a portion of San Ildefonso Pueblo's exclusive aboriginal territory and that many Pueblos have shared the remaining areas for many centuries. See, e.g., Nov. 19 Tr. at 4160:16-4163:15 (Kehoe, Marinelli)(discussing San Ildefonso's position regarding the United States' proposed Valles Caldera acquisition); Nov. 29 Tr. at 4565:17-4569:10 (Marinelli, Anschuetz)(explaining the concept of tetrads[118] within a Pueblo's cultural landscape); Position Statement -- Pueblo of San Ildefonso On Potential Federal Legislation Concerning Tribal Aboriginal Title Claims to Baca Location No. 1 Submitted to Hon. Bill Redmond at 2 (dated July 31, 1998), admitted November 19, 2018, at trial as United States' Ex. DX-HL (“San Ildefonso Pueblo takes the position that none of this can be treated as exclusively claimed by any one of the neighboring Pueblos. Therefore, . . . legislation should not provide for adjudication of separate, distinct Pueblo claims. Rather, the legislation should recognize that . . . Pueblos have shared [the area] since before recorded history.”).

         322. In 2000, Jemez Pueblo expressed in testimony before the United States Senate its support for the United States' proposed Valles Caldera acquisition. See, e.g., U.S. Senate, Valles Caldera Preservation Act: Hearing Before the Subcommittee on Forests and Public Land Management of the Committee on Energy and Natural Resources, 106th Cong. 2nd sess. at 62 (dated March 10, 2000), admitted October 29, 2018, at trial as United States' Ex DX-IF (Statement of Raymond Gachupin, Governor, Pueblo of Jemez)(“For the record, yes, we strongly support the proposed acquisition of the Valles Caldera by the USDA Forest Service and we strongly support the concept of multiple use.”).

         323. The United States and the State of New Mexico have historically permitted Pueblos through Acts of Congress or through purchase to acquire lands that the Pueblos consider their ancestral homelands. See, e.g., Nov. 9 Tr. at 2710:17-2711:22 (West, Suina)(discussing how Cochiti Pueblo purchased lands to effect an exchange for ancestral homelands with the New Mexico State Land Office); Nov. 7 Tr. at 2068:13-25 (Lucero)(discussing how Zia Pueblo through Congressional Act obtained lands adjacent to the Ojito Wilderness); Nov. 9 Tr at 2672:15-2673:3 (Marinelli, Madalena)(affirming that the United States permitted Zia Pueblo to purchase the Ojito Wilderness); Designation of Deposition Testimony -- Gilbert Suazo at 13:13-23, admitted November 15, 2018, at trial as Jemez Pueblo's Proposed Findings PX 559 (Suazo)(discussing Taos Pueblo's appeal to Congress to recover title to Blue Lake, which Congress eventually recognized).

         324. Jemez Pueblo asked Congress to permit it to purchase 200 acres on Redondo Peak.[119] See, e.g., U.S. Senate, Valles Caldera Preservation Act: Hearing Before the Subcommittee on Forests and Public Land Management of the Committee on Energy and Natural Resources, 106th Cong. 2nd sess. at 61 (Statement of Raymond Gachupin, Governor, Pueblo of Jemez)(“In desperation. Senators, we therefore ask this honorable committee to consider granting us a right to acquire a mere 200-acre tract of land on top of Redondo Peak that encompasses the primary sacred shrine of the Jemez people.”); Testimony of the Pueblo of Jemez Before the Senate Committee on Energy and Natural Resources; Subcommittee on Forests and Public Land Management at 7 (dated March 10, 2000), admitted October 29, 2018, at trial as United States' Ex. DX-IE)(requesting right to purchase 200 acres on Redondo Peak “in desperation.”).

         325. XXXXX.[120] See, e.g., Letter from Raymond Gachupin, Governor of Jemez Pueblo, to Senator Jeff Bingaman Re: S.B. 1892 - To Establish Valles Caldera Preserve at 1-2 (Feb. 22, 2000), admitted October 29, 2018, at trial as United States' Ex. DX-IB (emphasizing Jemez Pueblo's two “issues respecting S.B. 1892 which are the most critical”); U.S. Senate, Valles Caldera Preservation Act: Hearing Before the Subcommittee on Forests and Public Land Management of the Committee on Energy and Natural Resources, 106th Cong. 2nd sess. at 61 (Statement of Raymond Gachupin, Governor, Pueblo of Jemez).

         326. The legislation that Congress ultimately passed to acquire the Valles Caldera did not include provisions for Jemez Pueblo to purchase the requested 200 acres on Redondo Peak. See, e.g., Nov. 20 Tr. at 4301:1-4302:18 (D. Yepa)(asserting that Jemez Pueblo's purchase request was its “last effort to get something” from the United States' Valles Caldera acquisition); id. at 4337:8-22 (D. Yepa); Kehoe Report at 54-56.

         327. Jemez Pueblo initially proposed an amendment to the Preservation Act that would give it a seat on the Valles Caldera Trust board but the Honorable Pietro “Pete” V. Domenici, former Senator from the State of New Mexico, resisted Jemez Pueblo's initial proposal, and Jemez Pueblo thereafter proposed a second amendment to reserve an American Indian seat on the board, which Congress ultimately rejected. See, e.g., Testimony of the Pueblo of Jemez Before the Senate Committee on Energy and Natural Resources, Subcommittee on Forests and Public Land Management at 3-4 (March 10, 2000), admitted November 19, 2018, at trial as United States' Ex. DX-IE (“For your consideration, the Pueblo of Jemez promotes the concept of multiple-use and would honor the opportunity to actively participate on the Valles Caldera Board of Trustees.”); Nov. 20 Tr. at 4303:13-4304:12 (D. Yepa)(“Jemez wanted a Native American seat. Actually, Jemez wanted a Jemez seat. But, again, in conversations with Senator Domenici, there was some resistance in having just a Jemez seat. And that's why I think that a representative of a federally-recognized Indian tribe or pueblo is in there.”).

         328. Jemez Pueblo privately sought to acquire the entire Valles Caldera before the United States purchased the land in 2000, yet officially it supported the United States' efforts thereto. See, e.g., Nov. 5 Tr. at 1551:8-22 (Marinelli, Chinana)(affirming that Jemez Pueblo's congressional testimony said for the record: “Yes, we strongly support the proposed acquisition of the Valles Caldera.”); id. at 1551:8-12 (Marinelli, Chinana)(affirming that, before Jemez Pueblo's congressional testimony, Jemez Pueblo's Tribal Council “discussed the best way of getting the Valles Caldera back to Jemez”); Designation of Deposition Testimony -- Allen Gachupin at 115:18-116:21, admitted November 20, 2018, at trial as United States' Ex. DX-JX-2 (“Deposition Testimony - Allen Gachupin”)(Marinelli, A. Gauchupin)(“[W]e already wanted the whole thing . . . but we figured we'd at least soften the situation here by not being overzealous and where Domenici and the folks can at least be more amenable, to be more receptive, to something to that effect there.”); Draft Letter From Governor Madalena to Other Tribes at 1 (dated Feb. 28, 2012), admitted November 9, 2018, at trial as United States' Ex. DX-UV (“Although our Indian title remains unextinguished we assumed the 12-year statute of limitation of the Federal Quiet Title Act was a barrier to our recovery of these lands. To our advantage, in 2000, the United States purchased the Baca location from private owners.”).

         329. Rather than agreeing to Jemez Pueblo's request for a seat on the Valles Caldera Trust Board or for 200 acres on Redondo Peak, Congress recognized many Tribes' continued interests in the Valles Caldera. See, e.g., Nov. 20 Tr. at 4310:6-15 (D. Yepa)(affirming that, as a Valles Caldera Trust board member, Yepa “had a duty to consult with all Native American tribes”); Deposition Testimony -- Allen Gachupin at 101:6-103:2 (Marinelli, Gachupin); State of New Mexico, Senate Floor Amendment to Senate Joint Memorial 11, Forty-Third Legislature, Second Session, at 2 (dated Feb. 5, 1998), admitted October 29, 2018, at trial as United States' Ex. DX-HD (“WHEREAS, the pueblos of Jemez, San Ildefonso and Santa Clara have long-standing traditional and cultural roots in the Valles Caldera and support the federal acquisition of the area . . . BE IT RESOLVED . . . that the New Mexico congressional delegation support . . . legislation authorizing the purchase . . . of the Baca location number 1.”).

         330. Congress' decision to purchase the Valles Caldera permits other Tribes and the public to visit Redondo Peak in a manner that subverts Jemez Pueblo's religious values. See, e.g., Nov. 20 Tr. at 4365:18-4366:2 (Marinelli, Gachupin)(XXXXX); Dec. 5 Tr. at 5322:8-12 (Silva-Bañuelos)(XXXXX); id. at 5324:16-19 (Silva- XXXXX c XXXXX); id. at 5332:7-24 (Leonard, Silva-Bañuelos)(XXXXX); id. at 5337:16-5341:3 (Leonard, Silva-Bañuelos)(XXXXX).

         331. The National Park Service issues special use permits, which grant the public greater access to and use of the Valles Caldera that National Park Service does not otherwise allow, and the Superintendent, at his or her discretion, can waive the permit's cost for Tribal, state, and local government entities. See, e.g., Dec. 5 Tr. at 5333:23-5334:24 (Leonard, Silva-Bañuelos)(“A special use permit is a form of authorization that the Park Service uses to provide additional access or permission to do something that is generally not allowed by the general public. So there are different types of permits.”); id. at 5333:23-5334:24 (Leonard, Silva-Bañuelos); id. at 5335:9-16 (Leonard, Silva-Bañuelos)(“I do have authorities within the [National Park Service] management policies that I can waive the fees for special use permits for tribal, state, and local governments, and a few other examples if it's in the best interests of the government, or if it's a nonprofit entity.”).

         332. The National Park Service issues to the public educational permits, research permits, and commercial filming permits, each of which enable the public greater Valles Caldera access than it would have otherwise. See, e.g., Dec. 5 Tr. at 5335:3-8 (Silva-Bañuelos)(“The education permit is free, the research permit is free, the special use permit comes with a requirement for cost recovery -- we have to recover the costs of issuing the permit. The commercial use and film permits also have a cost recovery fee and some other associated fees.”); id. at 5335:24-5336:1 (Silva-Bañuelos)(“The permit system is our way of allowing for an expanded set of uses by either the general public or specific entities.”).

         333. On July 25, 2000, the Dunigans sold 89, 716 acres of Baca Location No. 1 to the United States for the sum of $96, 523, 042.00, and the lands thereafter formally became known as the Valles Caldera National Preserve.[121] See, e.g., Warranty Deed and Assignment of Rights Under Warranty Deed and Reciprocal Conservation and Access Easement between Dunigan Enterprises et al. and United States of America at 1 (July 25, 2000), admitted October 29, 2018, at trial as United States' Ex. DX-IG; Valles Grande at 122.

         334. Congress amended the Preservation Act to direct the United States to acquire the Valles Caldera's outstanding mineral interests, which the United States' acquired in 2006 for $3, 800, 000.00. See, e.g, United States v. Harrell, [122] 642 F.3d 907, 910-11 (10th Cir. 2011); Valles Grande at 123.

         335. The United States spent approximately $31, 000, 000.00 between 2000 and 2009 to restore and manage the Valles Caldera, and it has continued to invest in the Valles Caldera since 2009. See, e.g., Government Accountability Office, Valles Caldera: The Trust Has Made Progress but Faces Significant Challenges to Achieve Goals of the Preservation Act at 6 (Oct. 1, 2009), admitted October 29, 2018, at trial as United States' Ex. DX-LK; Dec. 5 Tr. at 5396:8-9 (Silva-Bañuelos)(asserting that the Valles Caldera's operating budget while under trust “ranged from about $3 million to $5 million per year”).

         336. Because Jemez Pueblo cannot afford to maintain the Valles Caldera without federal assistance, Jemez Pueblo's management plan for the Valles Caldera involves asking the United States to fund the Valles Caldera's management costs. See, e.g., Nov. 20 Tr. at 4376:14-15 (Marinelli, Gachupin)(affirming that the Jemez fire chief has “no clue” “how much it cost to fight the Thompson Ridge Fire”[123]); Nov. 9 Tr. at 2587:4-2588:7 (Marinelli, Madalena)(affirming that Jemez Pueblo does not have the funds to manage the Valles Caldera and that its “management plan was to rely on the Park Service to pay for management of the Valles Caldera if Jemez wins the lawsuit”); Nov. 9 Tr. at 2652:12-2653:21 (Luebben, Madalena)(“[T]he plan would be . . ., yes, going to co-management with the Park Service. Have the Park Service be a provider, be an assistance of the management and continue to run it as they are running it.”); id. at 2655:5-8 (Luebben, Madalena)(affirming that Jemez Pueblo “expect[s] the Park Service to carry a share of the cost of maintain the Valles Caldera”).

         12. Congressional Action and Legislation to Transfer the Valles Caldera National Preserve to the National Park Service Confirms that Many Tribes Maintain Interests in the Valles Caldera That Are Averse to Jemez Pueblo's Aboriginal Title Claim.

         337. In 2010, Jemez Pueblo expressed to Senator Bingaman its belief that it had aboriginal title to the Valles Caldera, and requested that Congress transfer the Valles Caldera to it. See, e.g., Dec. 5 Tr. at 5274:13-18 (Silva-Bañuelos)(“I also remember Jemez Pueblo at the time as we were considering a change in the management structure for Valles Caldera, that Governor Madalena expressed his interest that if Congress is going to make any changes, that it transfer the Preserve to Jemez Pueblo.”); id. at 5275:19-5276:1 (Silva-Bañuelos)(“In one of my meetings with Governor Madalena, . . . in all the conversations I had with all these entities, that because Congress seemed to be opening the door to a different type of administrative jurisdiction for Valles Caldera, this was the opportunity for everyone to make their pitch.”); Nov. 9 Tr. at 2595:20-2597:2 (Marinelli, Madalena)(recognizing Congress as the only entity who could “deed” the Valles Caldera to Jemez Pueblo and that Senator Bingaman rejected Jemez Pueblo acquisition).

         338. Jemez Pueblo made requests to Senator Bingaman and the Honorable Ben Ray Luján, United States Representative from the State of New Mexico, that Congress extend the Quiet Title Act's statute of limitations to permit Jemez Pueblo to further research its aboriginal title claims, and Senator Bingaman ultimately declined to entertain Jemez Pueblo's requests. See, e.g., Dec. 5 Tr. at 5285:4-20 (Silva-Bañuelos)(“[Jemez Pueblo counsel Thomas E. Luebben] contacted Senator Bingaman's office, as well as the office of Congressman Ben Ray Lujan, to ask on behalf of Jemez Pueblo if the senator and the congressman would consider introducing legislation to extend the statute of limitations of the Quiet Title Act.”); id. at 5286:2-14 (Silva-Bañuelos); Nov. 7 Tr. at 2243:15-2246:9 (Luebben, Madalena)(“[W]hen I was governor, I went to the extremes in making sure that we reacquire the Valles Caldera. I went . . . beyond my call of duty to work with the Trust, the Preserve, the Park, the United States, . . . to come to some sort of fruition on what we were asking for.”).

         339. In 2014, Congress transferred management responsibility for the Valles Caldera from the Valles Caldera Trust to the National Park Service for two primary reasons: (i) to enhance public access given the general public's strong interest to recreate there; and (ii) to protect and preserve the Valles Caldera's archaeological sites and natural and cultural assets. See e.g., Dec. 5 Tr. at 5270:21-5271:5 (Silva-Bañuelos)(“[W]e ended up landing on the Park Service . . . given the significant interest by the general public to use and access and recreate on the Preserve, as well as our understanding of the wealth of archaeological sites and natural and cultural values that the Preserve had.”), id. at 5320:1-19 (Silva-Bañuelos)(asserting that, during Congressional consultation about the Valles Caldera transfer, many Tribes desired legislation that would protect the Valles Caldera's fish, wildlife, and watershed resources as well as its historical, cultural, and archaeological values, and other groups expressed similar concern for protecting such resources, including hunting organizations and environmental organizations); id. at 5330:11-5331:16 (Marinelli, Silva-Bañuelos)(describing how the Valles Caldera Trust raffled hunting access to the Valles Caldera through a lottery system, which led to the impression that wealthy hunters had an advantage given the number of tickets they could purchase).

         340. Upon assuming management, the Valles Caldera Trust implemented a closure order over the entire Valles Caldera and thereafter gradually opened discrete areas to the public for specific activities while leaving the remaining lands closed to public access; National Park Service management takes an opposite approach -- the entire Valles Caldera is open for non-motorized, public access on foot unless the National Park Service closes a specific area or prohibits a specific activity. See, e.g., Dec. 5 Tr. at 5316:3-5317:8 (Marinelli, Silva-Bañuelos); Backcountry Access, Valles Caldera, National Park Service, https://www.nps.gov/vall/planyourvisit/backcountry-access.htm (last visited June 6, 2018).

         341. In addition to Jemez Pueblo, the Pueblos of Santa Clara, Zia, Cochiti, San Felipe, Santo Domingo, Ohkay Owingeh, San Ildefonso, and Jicarilla Apache[124] consulted Congress on the proposed Valles Caldera National Preserve transfer legislation, and discussed their historical, traditional, and cultural uses of the Valles Caldera. See, e.g., Dec. 5 at 5256:23-5257:8 (Marinelli, Silva-Bañuelos)(discussing “extensive” consultations with Pueblos regarding the Valles Caldera while Silva-Bañuelos worked for the Senate Energy and Natural Resources Committee); id. at 5276:7-25 (Silva-Bañuelos)(discussing meetings with multiple Tribes regarding the National Park Service transition).

         342. The eight Tribes that consulted with Congress regarding the Valles Caldera transfer to the National Park Service expressed interest in maintaining their connections to the land and in the Valles Caldera's management, including future Tribal consultation requirements and how the National Park Service would conduct Tribal access, for which Congress provided in the ultimate transfer legislation. See, e.g., Dec. 5 at 5262:10-17 (Marinelli, Silva-Bañuelos)(“My general takeaway that influenced my impressions and understanding of Santa Ana's interest in the Valles Caldera was that it was a place of strong meaning and cultural connection, and they were interested in improving the management of the Preserve.”); id. at 5262:21-5263:1 (Marinelli, Silva-Bañuelos)(“San Felipe also expressed cultural connections and ties to Valles Caldera that I took away with, of their continued interest.”); id. at 5263:5-8 (Marinelli, Silva-Bañuelos)(“My takeaway from the meetings with Sandia Pueblo were that they had an interest in Valles Caldera and a cultural connection to it.”); id. at 5263:9-17 (Marinelli, Silva-Bañuelos)(“My take-away was there were ancestral use sites, shrines, other cultural archaeological sites that were of interest to [Cochiti Pueblo] and their preservation and protection.”); id. at 5263:18-5264:3 (Marinelli, Silva-Bañuelos)(“[Zia Pueblo] definitely expressed strong interest in ceremonial religious cultural connections to the Preserve. They were interested in access issues and management issues by the Trust.”); id. at 5264:4-11 (Marinelli, Silva-Bañuelos)(“Similar cultural connections, deep ties to the Preserve, strong interest in management and access issues at the Preserve under the Valles Caldera Trust. That was the early, early consultation meetings I had with Jemez Pueblo.”); id. at 5264:13-25 (Marinelli, Silva-Bañuelos)(“My take-away was [Jicarilla Apache] had a cultural tie with Valles Caldera historically, and they were keenly interested in the management of the Valles Caldera Trust.”); id. at 5287:10-5288:4 (discussing meetings with the Pueblos of San Ildefonso, Jemez, and Santa Clara regarding the National Park Service transition); id. at 5289:2-6 (Silva-Bañuelos)(discussing the effects that the Tribes' concerns had on the ultimate transfer legislation), id. at 5301:3-10 (Silva-Bañuelos)(“They were all interested in making sure that there was teeth behind how the National Park Service would engage with various tribes. The term that I hear a lot is the idea of meaningful consultation. That it's not just check the box type of exercise.”).

         343. In rejecting Jemez Pueblo's request that Congress transfer the Valles Caldera to Jemez Pueblo, the Honorable Thomas Udall, United States Senator from the State of New Mexico, expressed to Jemez Pueblo other Pueblos' concerns with Jemez Pueblo controlling the Valles Caldera. See, e.g., Nov. 9 Tr. at 2615:24-2616:10 (Marinelli, Madalena)(affirming Senator Udall's position that other Pueblos did not support Jemez Pueblo controlling the Valles Caldera's management); Email from Vincent Toya to Governor Madalena Regarding Meeting with Tom Udall at 2 (dated May 15, 2014), admitted November 9, 2018, at trial as United States' Ex. DX- UQ (memorializing Senator Udall's comment that “[o]ther pueblos are concern[ed] with [Jemez Pueblo] only controlling the management of the Valles Caldera”).

         344. On June 30, 2010, the Pueblos of Jemez, Santa Clara, and San Ildefonso provided testimony to Congress in which Santa Clara Pueblo and San Ildefonso Pueblo expressed full support for the Valles Caldera's transfer to the National Park Service; Jemez Pueblo offered conditional support and, for the first time before Congress, asserted its aboriginal title claim to those lands. See, e.g., Nov. 9 Tr. at 2636:13-2637:2 (Marinelli, Madalena)(affirming that Jemez Pueblo “clearly stated” to Congress in 2010 -- but not in 2000 -- its belief that it holds aboriginal title to the Valles Caldera); Dec. 5 Tr. at 5306:1-11 (Silva-Bañuelos)(“Jemez Pueblo offered their conditional support to the legislation; Santa Clara Pueblo testified in full support of the legislation; and San Ildefonso testified in their written testimony in full support of the National Park Service management of the Preserve.”); Hearing before Comm. on Energy and Natural Res., United States Senate, A Bill to Designate the Valles Caldera Nat'l Preserve as a Unit of the Nat'l Park System, 111th Cong. 753 at 19-21, 22-23, 64-65 (June 30, 2010), admitted October 29, 2018, at trial as United States' Ex. DX-LR.

         345. Jemez Pueblo was more familiar than other Tribes with the Valles Caldera's Tribal Access and Use Policy during the Valles Caldera Trust era, because a Jemez Pueblo member drafted the policy, and because Jemez Pueblo had Tribal members on the Valles Caldera Trust board. See, e.g., Dec. 5 Tr. at 5325:9-5326:6 (Marinelli, Silva-Bañuelos)(asserting that Santo Domingo Pueblo and Zia Pueblo were not familiar with the Valles Caldera Tribal Access and Use Policy when the National Park Service assumed the Valles Caldera's management); id. at 5326:11-17 (Silva-Bañuelos)(“We ended up meeting with the lieutenant governor of Santo Domingo Pueblo, Kewa Pueblo. And he really didn't know when he asked us who we were . . . and we explained we're here from the Valles Caldera National Preserve, and he was unfamiliar with that name for the Caldera for the Preserve.”); id. at 5327:18-25 (Silva-Bañuelos)(“[H]aving a member of [Jemez Pueblo] tribe, having helped develop that Tribal Access and Use Policy, probably provided them with some intimate knowledge of how that worked. Having Board members seated on the Valles Caldera Board of Trustees also provided a level of knowledge and awareness.”).

         346. Tribes other than Jemez Pueblo, in conformance with their privacy values, would not typically provide the Valles Caldera Trust or the National Park Service with a list of the sacred locations that they would visit within the Valles Caldera. See, e.g., Dec. 3 Tr. at 5118:15-5119:9 (Marinelli, Chavarria)(asserting that Santa Clara Pueblo would not provide the Valles Caldera Trust's Executive Director with information regarding the specific cultural purposes for which Santa Clara Pueblo would request Valles Caldera access); id. at 5141:19-5142:20 (West, Chavarria)(asserting that Santa Clara Pueblo made oral Valles Caldera access requests through Dennis Trujillo, the Valles Caldera Trust's Executive Director, so as to avoid the requirement to disclose in writing Santa Clara Pueblo's traditional cultural activities within the Valles Caldera); Dec. 5 Tr. at 5345:20-5346:25 (Silva-Bañuelos)(“[B]ecause I inherited the previous executive director's phone number . . . I would get . . . random phone calls . . . asking for access to the Preserve for traditional tribal reasons. . . . And I would just grant them the access. Probably not really even knowing which tribe they were from. . . . That's . . . how it was customarily being done.”); Anschuetz Report at 164 (“[T]he disclosure of the locations of sacred shrines and sites is forbidden.”).

         13. Many Tribes Continue to Maintain Interests in the Valles Caldera.

         347. Many Tribes use the Valles Caldera in overlapping ways that have transformed the Valles Caldera into a commons. See, e.g, Anschuetz Report at 61 (“Today, many Rio Grande Pueblo communities, including Jemez, Zia, Santa Ana, San Felipe, Cochiti, Santo Domingo, Tesuque, San Ildefonso, Santa Clara, and San Juan, maintain associations with the area now contained within the VCNP.”); id. at 201 (“The people of Santa Clara have had a long and intimate relationship with the Valles Caldera stretch back in time immemorial, and have used and occupied the Caldera, for many traditional subsistence and cultural purposes, throughout the time and up to the present.” (quoting Santa Clara Pueblo Governor J. Michal Chavarria)); id. at 202 (“We've learned this history from our ancestors and our elders, and we continue to use the Valles Caldera for cultural purposes as we have done since time immemorial.” (quoting Zia Pueblo member Jerome Lucero)).

         348. All Tewa Pueblos maintain strong associations with the Jemez Mountains as their mountains of cardinal direction. See, e.g., Dec. 3 Tr. at 5119:10-25 (Marinelli, Chavarria)(asserting that the Tewa aboriginal boundaries' western edge is the Jemez Mountains, which includes Redondo Peak); Anschuetz Report at 150-51.

Pueblo

Valles Rhyolite Obsidian (Cerro del Medio)

Piki Stone Quarry (XXXXX)

Redondo Peak

San Ildefonso

18.8

19.1

25.0

Santa Clara

20.5

20.0

27.2

Cochiti

21.8

24.8

21.8

Ohkay Owingeh (San Juan)

23.2

22.0

30.2

Pojoaque

24.0

24.2

30.3

Jemez Pueblo

25.9

28.5

20.0

Nambe

26.5

26.7

32.8

Tesuque

27.6

28.5

33.2

Kewa (Santo Domingo)

28.0

31.0

27.0

Zia

32.0

34.8

26.7

San Felipe

32.7

35.7

30.4

Santa Ana

34.7

37.8

30.6

         A. Santa Clara Pueblo's Interests in the Valles Caldera.

         349. Santa Clara Pueblo views the Valles Caldera as a commons that no single Pueblo or Tribe owns. See, e.g., Dec. 5 Tr. at 5202:4-14 (Marinelli, Chavarria)(asserting that the lands west of Santa Clara's headwaters in the Valles Caldera are “used in a shared concept”); Interview Notes with Porter Swentzell by Kurt F. Anschuetz, Ph.D.[125] at 11 (dated 2011), admitted October 29, 2011, at trial as United States' Ex. DX-MI (“The custom is that nobody owns the Valles exclusively, and that there is respect for others when they are there too. Many communities in the area would go to the Valles and gather resources and pray. Nobody can stake out claims to the exclusion of others.”); Anschuetz Report at 201-02.

         350. Santa Clara Pueblo's trust lands are adjacent to the Valles Caldera, and Santa Clara Pueblo maintains many sites, trails, and shrines within the Valles Caldera.[126] See, e.g., Dec. 3 Tr. at 5044:23-5045:2 (Chavarria)(“The activities of our people are of a sensitive and religious nature such that details cannot be divulged, but it is fair to say that the area is part of our cultural sanctuary, our pharmacy, and our grocery store.”); Hearing before Comm. on Energy and Natural Res., United States Senate, A Bill to Designate the Valles Caldera Nat'l Preserve as a Unit of the Nat'l Park System at 26 (“The many traditional sites, trails, shrines, and ritual gatherings, areas throughout the caldera remain vitally important and integrally related to our traditional religious practices.”); Santa Clara Restoration Assessment at 25.

         351. Congress has acted to protect Santa Clara Pueblo's continuing interest in the Valles Caldera's management. See, e.g., Nat'l Def. Auth. Act for Fiscal Year 2015 § 3043(b)(3)(C)(iii), 128 Stat. 3292, 3793 (dated Dec. 19, 2014); Preservation Act, 114 Stat. 598, 610 (2000) (“The Trust is authorized and directed to cooperate and consult with Indian tribes and Pueblos on management policies and practices for the Preserve which may affect them.”).

         352. Santa Clara Pueblo began consulting with the Valles Caldera Trust in 2002 and shortly thereafter hosted one of the first Valles Caldera Trust meetings. See, e.g., Minutes of Valles Caldera Trust Meeting at 1 (dated Feb. 28, 2002), admitted December 5, 2018, at trial as United States' Ex. DX-IW; Notes of Santa Clara Tribal Consultation Meeting (March 5, 2002), admitted December 3, 2018, at trial as United States' Ex. DX-IX (summarizing meeting to discuss Valles Caldera hunting and grazing activities, among other topics).

         353. Santa Clara Pueblo continues to consult with the National Park Service regarding issues related to Valles Caldera access, use, and preservation.[127] See, e.g., Nov. 13 Tr. at 2943:11- 23 (Steffen)(asserting that Santa Clara Pueblo has conducted consultation meetings with National Park Service staff); id. at 2968:1-2972:23 (Steffen)(asserting that an October 25, 2010, meeting with Santa Clara Pueblo addressed multiple projects, opposed certain access, and sought co-management); Dec. 3 Tr. at 5143:10-5144:14 (Marinelli, Chavarria)(affirming that Santa Clara Pueblo has discussed its Valles Caldera “stewardship and collaborative efforts” with National Park Service archaeologists); Notes from East Jemez Resource Council Meeting at 1 (dated Dec. 14, 2005), admitted November 13, 2018, at trial as United States' Ex. DX-KK (describing consultation regarding the Valles Caldera's main north-south road); Letter from D. Trujillo to Gov. Chavarria, Santa Clara (dated Feb. 3, 2006), admitted October 29, 2018, at trial as United States' Ex. DX-KN (affirming Santa Clara Pueblo's Valles Caldera consultation schedule).

         354. Santa Clara Pueblo has expressed to the United States concerns regarding the Valles Caldera's main entrance, main north-south artery, high elevation areas, land formations, hiking trails, hunting and parking policies, and geothermal development. See, e.g., Nov. 13 Tr. at 2945:3-2951:2 (Marinelli, Steffen)(detailing the topics that Santa Clara Pueblo discussed at its 2006 annual consultation meeting with Valles Caldera Trust employees); Notes of Meeting: Santa Clara Pueblo Annual Consultation Meeting at 1-5 (dated June 26, 2006), admitted October 29, 2018, at trial as United States' Ex. DX-KP.

         355. On April 23, 2015, at a multi-tribe consultation meeting regarding the Valles Caldera's transition to the National Park Service, Santa Clara Pueblo asserted its ongoing connection to and reliance on the Valles Caldera's natural resources.[128] See, e.g., Valles Caldera National Preserve Management Act Tribal Consultation with Santa Clara at 1 (April 23, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-ON (“The Pueblo people of Santa Clara have utilized the Caldera for thousands of years. It is our cultural sanctuary, our grocery store, our pharmacy, it is our life line.”); id. at 2 (“We consider the Caldera to be an essential part of our cultural landscape and daily life. . . . Traditional hunting in the Caldera has been done by Santa Clara since time immemorial and is a tradition that is still practiced to this day and these cultural activities will continue.”[129]); Valles Caldera National Preserve Transition to the National Park Service Consultation at 2 (dated April 23, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-OO (“Management of the caldera is of great interest to [Santa Clara Pueblo]. Caldera is an essential part of their traditional cultural landscape: collection of plants, other materials, ceremonies. Protection of tribal and religious sites needs improvement, and they are concerned about trespass and encroachment on their easement by VCNP visitors.”); Valles Caldera National Transition Consultation at 2-3 (dated April 23, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-OQ (“We need to preserve caldera for generations. Enter into co-op agreement, management plan . . . The caldera is an essential part of daily landscape -- hunting and ceremonies. We are concerned about trespass from visitors onto our lands. We need to preserve cultural resources.”).

         356. On December 1, 2015, in a session to develop a foundational document for the Valles Caldera, Santa Clara Pueblo stated that it uses the Valles Caldera to gather traditional medicinal and ceremonial plants, and other cultural resources, including minerals, game animals, obsidian, water and trees, and to conduct pilgrimages to certain mountains, springs, and shrines.[130]See, e.g., Santa Clara Pueblo Dec. 2015 Talking Points at 1 (dated Dec. 1, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-PD (“[Santa Clara Pueblo's Valles Caldera] use has included and still includes traditional gathering of medicinal and ceremonial plants and other cultural resources (mineral paint, game animals, obsidian, ceremonial uses of water and trees). Hunting in the Caldera is a traditional activity that is still practiced to this day.”); Valles Caldera National Preserve (VALL) Foundation Document Tribal Listening Session Meeting Notes at 1-2 (dated Dec. 1, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-PG (“Santa Clara has a common boundary with [the Valles Caldera]. For 1000s of years, we have used the caldera. There are activities we can't change or divulge. We conduct sacred activities. . . . We will continue to use areas of the caldera. We can't say where. We will not provide specific information.”).

         357. Santa Clara Pueblo members travel past Santa Clara Creek's headwaters to make religious and cultural pilgrimages into the Valles Caldera.[131] See, e.g., Dec. 3 Tr. at 5118:15-5119:9 (Marinelli, Chavarria)(asserting that Santa Clara Pueblo requested Valles Caldera access on “an as-needed basis, like two to three times a year” during J. Michael Chavarria's eight terms as Santa Clara Pueblo governor); Pueblo of Santa Clara Tribal Council Resolution No. 2016-129 at 1 (Dec. 16, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-QG (“[T]he Santa Clara Pueblo people have used the Valle Caldera for hundreds of years for cultural activities, and continue to use the Valle Caldera for such activities, including traditional gathering of medicinal and ceremonial plants and other cultural resources, and is the Pueblo's cultural and spiritual sanctuary, . . . .”); Anschuetz Report at 165 (“Santa Clara Pueblo Governor J. Michael Chavarria notes that members of his Pueblo also harvest water from the upper Jemez River watershed ‘for traditional purposes in connection with their uses of sites and areas in the Caldera.'” (quoting J. Michael Chavarria)).

         358. Santa Clara Pueblo maintains an oral tradition that includes Valles Caldera place names[132] and emphasizes Valles Caldera stewardship. See, e.g., Nov. 29 Tr. at 4500:19-4501:8 (Anschuetz, Marinelli)(asserting that Santa Clara Pueblo's and Zia Pueblo's Valles Caldera place names are “privileged information”); Valles Caldera National Preserve Transition to the National Park Service Consultation at 2 (“James Naranjo, Lt. Gov. Pueblo of Santa Clara . . . speaking Tewa, mentions XXXXX (ancestral pueblo sites), switches to English. . . . They too have names for mountains, like their neighbors, and the caldera is in their hearts.” (emphasis in original)).

         359. Santa Clara Pueblo meets with the Valles Caldera National Preserve Superintendent one to three times a year on average to discuss Santa Clara Pueblo's requests for co-management and collaboration on Valles Caldera matters. See, e.g., Dec. 3 Tr. at 5118:15-5119:9 (Marinelli, Chavarria); Dec. 5 Tr. at 5348:3-15 (Marinelli, Silva-Bañuelos); id. at 5354:24-5355:9 (Marinelli, Silva-Bañuelos)(asserting that Santa Clara Pueblo is “in the category with just a handful of tribes of very consistently engaged with Valles Caldera, consistent in their requests for co-management and ways that they can work . . . on a more collaborative basis”).

         360. Santa Clara is developing a multi-year funding agreement with the National Park Service to enable Santa Clara Pueblo to engage in more Valles Caldera projects, including maintenance and ecological restoration. See, e.g., at Dec. 5 Tr. at 5354:24-5355:9 (Marinelli, Silva-Bañuelos); Letter from Jorge Silva-Bañuelos to Governor J. Michael Chavarria at 1 (Sept. 16, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-QD (“This letter is in response to your request to enter into annual funding agreement negotiations for self-governance compacting with the Pueblo of Santa Clara for certain programs, services, functions, and activities at Valles Caldera National Preserve.”); Santa Clara Pueblo Dec. 2015 Talking Points at 2 (“Ensuring [National Park Service] . . . enters into a cooperative agreement with Santa Clara Pueblo for co-management of certain areas within the VCNP adjacent to the Santa Clara Pueblo boundary to implement hazardous fuel reduction treatments, ecological restoration, watershed protection, wildlife habitat enhancement, and cultural resource protection.”).

         361. Santa Clara Pueblo acknowledges that many Pueblos and Tribes maintain connections to the Valles Caldera. See, e.g., Pueblo of Santa Clara Tribal Council Resolution No. 2016-129 at 1 (“[O]ther tribes have also used the Valle Caldera for traditional activities and continue such use, and no permission has ever been required or obtained by any tribe to access locations in the Valle Caldera . . . .”); Meeting Summary -- Valles Caldera Trust Meeting in Public (dated Jan. 27, 2010), admitted October 29, 2018, at trial as United States' Ex. DX-LM (noting that Santa Clara Pueblo Tribal Historic Preservation Officer[133] Ben Chavarria “commented that many regional tribes (as far away as Oklahoma and Arizona) care about the Preserve and the Trust needs to find venues to work with all of them”[134]).

         362. Santa Clara Pueblo's Bear Society regularly visits the Valles Caldera to collect medicinal plants and obsidian. See, e.g., Nov. 29 Tr. at 4527:7-4528:3 (Anschuetz)(“Osha[135] . . . can occur below 8, 500 feet; it can occur below 9, 000 feet, but the larger quantities, reliable stands of osha don't exist until you get above 9, 000 feet.”); id. at 4608:9-4609:8 (Marinelli, Anschuetz)(affirming that the Santa Clara Pueblo Bear Society visits the Valles Caldera to collect Osha); Interview Notes with Tito Naranjo by Kurt F. Anschuetz, Ph.D. at 6-7 (“Osha grows around the edges of the Valles where the ground is not too boggy. ‘It is so rich with osha . . . that . . . all the . . . Pueblo people . . . should be allowed to go in whenever they have a need. . . . The Medicine Society is alive and well.' They need osha ‘all the time.'” (quoting Santa Clara Pueblo member Tito Naranjo)).

         363. Santa Clara Pueblo's religious leaders do not permit Santa Clara Pueblo members to discuss Valles Caldera use with specificity. See, e.g., Nov. 29 Tr. at 4501:9-19 (Marinelli, Anschuetz)(affirming that Santa Clara Pueblo and Zia Pueblo members are unwilling to discuss in detail their cultural and religious practices); Pueblo of Santa Clara Tribal Council Resolution No. 2016-129 at 3 (“The activities of our people are of a sensitive and religious nature such that details cannot be divulged but it is fair to say that the [Valles Caldera] is part of our cultural sanctuary, our pharmacy, and our grocery store.”).

         364. Although Santa Clara Pueblo has made several written requests to access the Valles Caldera, including for youth gatherings and a project involving ethnographic or anthropological studies, such requests are infrequent, because the Valles Caldera National Preserve Superintendent has informed Santa Clara Pueblo that it need not obtain National Park Service permission to access the Valles Caldera by foot from the boundary that Santa Clara Pueblo and the Valles Caldera share near the Rito de los Indios. See, e.g., Dec. 5 Tr. at 5351:22-5354:23 (Marinelli, Silva-Bañuelos)(“We've authorized a youth gathering from Santa Clara Pueblo in 2017, and again this year, in 2018.”); id. at 5355:10-24 (Marinelli, Silva-Bañuelos)(“It's not frequent that I receive written requests. . . . [I]f they want to come in from the northern boundary, there's a kind of valley area along what's called the Rito de los Indios. . . . And I've indicated . . . that if they want to come in on foot from that direction, you don't need to ask my permission.”).

         365. In October, 2016, Santa Clara Pueblo's cultural committee, which preserves Santa Clara Pueblo's cultural knowledge, asked the Santa Clara Pueblo Tribal Council to support the committee's position that no single Pueblo or Tribe owns or controls the Valles Caldera. See, e.g., Dec. 3 Tr. at 5132:6-5133:11 (Marinelli, Chavarria)(describing the cultural committee's request and subsequent Tribal Council resolution); Pueblo of Santa Clara Tribal Council Resolution No. 2016-129 at 1 (“[T]he Santa Clara Pueblo Cultural Committee recommends that the Santa Clara Pueblo not support only one pueblo having exclusive use of the Valles Caldera National Park. . . . [W]e feel that all mountains hold a very important role for many tribes today.”).

         366. No one Tribe controls the Valles Caldera and surrounding areas. See, e.g., Anschuetz Report at 11-13 (“Considering the proximity of the remnants of large number of big pueblos . . . on the east and northeast flanks of the Jemez Mountains, it is inconceivable that ancestral Keres and Tewa Pueblo peoples would not have had unrestricted access to most, if not all, of the VCNP.”); Anschuetz Rebuttal Report at 12 (“Consideration of the concentration of a large number of Tewa people at the settlements of Puye (LA47, with ca. 1, 600 rooms) and Pueblo de las Estrellas (XXXXX, with ca. 1, 600 rooms) in Santa Clara Canyon in the Northern Pajarito archaeological district is also instructive.”).

         367. Santa Clara Pueblo opposes Jemez Pueblo or any one Pueblo controlling the Valles Caldera. See, e.g., Dec. 3 Tr. at 5132:6-5133:11 (Marinelli, Chavarria)(asserting that the Santa Clara Pueblo Tribal Council “approved the resolution . . . not supporting that only one pueblo having exclusive use of the Caldera”); Pueblo of Santa Clara Tribal Council Resolution No. 2016- 129 at 1 (“The Tribal Council further affirms that no tribe has ever had exclusive use of the Valles Caldera.”).

         368. Santa Clara Pueblo views its members as Valles Caldera stewards and cultural inheritance trustees who regularly engage in pilgrimages to the Valles Caldera to fulfill their cultural and land stewardship obligations. See, e.g., Dec. 3 Tr. at 5097:2-22 (Chavarria)(discussing Santa Clara Pueblo's forestry and restoration efforts within and near the Valles Caldera); id. at 5120:22-5122:18 (Marinelli, Chavarria)(discussing Santa Clara Pueblo's elk monitoring and beaver restoration efforts); Anschuetz Report at 104 (identifying Santa Clara Pueblo's sacred stewardship obligations).

         369. Santa Clara Pueblo worked to protect its Valles Caldera cultural sites during the Cerro Grande Fire[136] and the Las Conchas Fire.[137] See, e.g., Dec. 3 Tr. at 5112:24-5113:6 (Marinelli, Chavarria)(describing Chavarria's role during the Cerro Grande Fire as “to monitor and assist the cultural sites of importance in the Caldera”); id. at 5113:22-5114:21 (Marinelli, Chavarria)(describing the Valles Caldera sites that Chavarria monitored during the Los Conchas).

         370. Santa Clara Pueblo members continue to visit Redondo Peak and to harvest Valles Caldera obsidian for use in traditional, sacred ceremonies. See, e.g., Dec. 3 Tr. At 5043:4-5046:16 (Marinelli, Chavarria)(discussing Santa Clara Pueblo's statement that, as part of its “ongoing relationship” with the Valles Caldera, it gathers obsidian, collects plants, hunts animals, and visits Redondo Peak); Anschuetz Report at 178 (“Santa Clara Pueblo Governor J. Michael Chavarria, reports that his community still uses obsidian -- XXXXX -- gathered during his Pueblo's activities in the VCNP.”).

         371. In 2017, Santa Clara Pueblo conducted within the Valles Caldera a cultural gathering that emphasized a location from which Santa Clara Pueblo members could view Santa Clara Pueblo's sacred peaks, including Redondo Peak, Cerro Pelado, and Cerro del Medio. See, e.g., Dec. 5 Tr. at 5353:18-5354:23 (Marinelli, Silva-Bañuelos); id. at 5355:25-5357:11 (Marinelli, Silva-Bañuelos)(“I observed them pointing at different peaks, and saying how this would work, because all of these various peaks were visible from that location. And that included Redondo Peak; it included Cerro Pelado on the Forest Service side; it included Cerro del Medio; and then some other peaks.”); id. at 5354:17-23 (Silva-Bañuelos)(“An older woman who . . . was there assisting this youth gathering -- she had mentioned that she had seen this place in her dreams. And there was a lot of emotion. They were both crying when they got to the spot, and they said, ‘We've come home.'”); Special Use Permit for VCNP for Santa Clara Pueblo (dated July 30, 2017), admitted October 29, 2018, at trial as United States' Ex. DX-RC.

         372. Santa Clara Pueblo supports legislation restricting construction on Redondo Peak and other Valles Caldera peaks, because Santa Clara Pueblo considers those peaks sacred. See, e.g., Dec. 3 Tr. at 5043:14-20 (Marinelli, Chavarria)(discussing Santa Clara Pueblo's statement that it continues to visit Redondo Peak for traditional, cultural purposes); Dec. 5 Tr. at 5283:20-5284:7 (Marinelli, Silva-Bañuelos)(discussing Santa Clara Pueblo's support for legislation that prohibitis motor vehicle access on Redondo Peak above 10, 000 feet); id. at 5284:8-10 (Silva-Bañuelos)(“[Santa Clara Pueblo] expressed that all peaks within Valles Caldera were sacred to Santa Clara Pueblo.”).

         373. Although Santa Clara Pueblo believes that the United States cannot adequately represent Santa Clara Pueblo's interests in this case, it is unwilling to waive its sovereign immunity to join the case as a party.[138] See, e.g., Dec. 3 Tr. at 5135:16-25 (Marinelli, Chavarria); id. at 5136:1-11 (Marinelli, Chavarria).

         B. Zia Pueblo's Interests in the Valles Caldera.

         374. Zia Pueblo views the Valles Caldera as a large, open-air church. See, e.g., Nov. 30 Tr. at 4718:24-4719:20 (Anschuetz) XXXXX. Florence Hawley Ellis and Andrea Ellis-Dodge, Religious Use of the Valles Caldera by Zia and Jemez Pueblos at 45-46 (dated 1981), admitted November 29, 2018, at trial as United States' Ex. DX-EZ (“Valles Caldera Religious Use”)(XXXXX) and that Zia Pueblo member would sometimes “refer to the Caldera as their cathedral”).

         375. Zia Pueblo members use the Valles Caldera to hunt, to gather plants and minerals, including obsidian, and to visit sacred sites and shrines. See, e.g., Nov. 29 Tr. at 4626:9-4627:21 (Anschuetz)(quoting Zia Pueblo member Jerome Lucero's assertions that, “[g]enerally, members of the Pueblo of Zia visit various area of the Valles Caldera Preserve to hunt, gather plants and minerals for ceremonial purposes or visit shrines and sites. This is throughout the year at various times pursuant to our religious activities”); Anschuetz Report at 172 (“Available ethnographic information for the Pueblos of Zia, Santa Ana, and Jemez compiled for presentation to the ICC refers to the presence of numerous community shrines throughout the Jemez Mountains, including the Valles Caldera.”); id. at 178 (“In a 2002 public presentation during which he talked of Zia' continuing use of the Valles Caldera and its resources, Pino . . . shared that Zia traditional practitioners continue to haft obsidian spear and arrow points in fore shafts fashioned from the bases of antlers.”[139]); Geothermal Impacts Report at 60 (“Jose La Cruz Galvan, age 73, who has served as Zia governor 5 times pointed out that all this land originally belonged to Zia, XXXXX .

         376. In addition to Redondo Peak, Zia Pueblo has traditional place names[140] for the Valles Caldera's six smaller peaks, XXXXX See, e.g., Nov. 29 Tr. at 4633:21-4634:24 (Anschuetz)(XXXXX), id. at 4640:9-4641:14 (Anschuetz); id. at 4642:5-4643:8 (Marinelli, Anschuetz)(explaining Ellis' map identifying certain places within the Valles Caldera sacred to Zia Pueblo); Anschuetz Report at 88 XXXXX; Valles Caldera Religious Use at 51 XXXXX .

         377. Zia Pueblo views as sacred all of Redondo Peak, XXXXX See, e.g, Anschuetz Report at 170 XXXXX; id. at 164 XXXXX; id. at 169-70 XXXXX .

         378. During traditional religious and secular ceremonies and meetings, XXXXX See, e.g., Nov. 29 Tr. at 4635:1-4640:3 (Anschuetz) XXXXX id. at 4643:9-4644:4 (Anschuetz); Anschuetz Report at 195 XXXXX; Valles Caldera Religious Use at 44 XXXXX.

         379. Zia Pueblo sees a simulacrum of an eagle in Redondo Peak. See, e.g., Jemez v. DOE, Summary Judgement Motion 88-90 XXXXX; Valles Caldera Religious Use at 44 XXXXX; Anschuetz Report at 164 XXXXX.

         380. Zia Pueblo attaches great spiritual significance to the Jemez River, including its Valles Caldera tributaries and headwaters. See, e.g., Nov. 29 Tr. at 4657:1-23 (Anschuetz, Marinelli)(asserting that Zia Pueblo likens water from springs surrounding Redondo Peak “to holy water in the Catholic church”); Interview with Governor Carl Brent Schildt, Lt. Governor Jerome Lucero, and Francisco Toribio, with Joseph A. Little, Eq., and Lisa A. Franceware, Esq., Pueblo of Zia at 4 (Nov. 11, 2017), admitted October 29, 2018, at trial as United States' Ex. DX-RI (“The Jemez Mountains are the source of Zia's water (rain, snow, runoff, springs, seeps, etc.).”).

         381. Zia Pueblo attaches great spiritual significance to the XXXXX, which it accesses by passing through the Banco Bonito. See, e.g., Nov. 29 Tr. at 4642:5-22 (Marinelli, Anschuetz) XXXXX; id. at 4650:9-4651:5 (Marinelli, Anschuetz) XXXXX Valles Caldera Religious Use at 49 XXXXX.

         382. Zia Pueblo consults with the National Park Service regarding its cultural ties to Redondo Peak and the Valles Caldera as a whole, which it views as central to its origin stories and religion. See, e.g., Dec. 5 Tr. at 5263:18-5264:3 (Marinelli, Silva-Bañuelos)(“[Zia Pueblo] definitely expressed strong interest in ceremonial religious cultural connections to the Preserve. They were interested in access issues and management issues by the Trust.”); id. at 5372:11-24 (Silva-Bañuelos)(“Zia Pueblo has a cultural tie to Redondo Peak as a sacred mountain. And my conversations with the lieutenant governor reinforced that Zia has place names for Valles Caldera, its center of their origin stories and religion.”).

         383. Zia Pueblo members XXXXX See, e.g., Nov. 7 Tr. at 2027:16-17 (Marinelli, Lucero) XXXXX Valles Caldera Religious Use at 51 XXXXX

         384. XXXXX .[141] See, e.g., Nov. 7 Tr. at 2019:9-2020:17 (Marinelli, Lucero)(XXXXX); id. at 2060:17-25 (Lucero)(“ XXXXX"[142]); Dec. 3 Tr. at 5080:25-5082:25 (Marinelli, Anschuetz)(XXXXX); Dec. 5 Tr. at 5219:6-12 (Marinelli, Silva-Bañuelos)(XXXXX; Pino Interview Notes at 11 (XXXXX).

         385. XXXXX.[143] See, e.g., Dec. 5 Tr. at 5234:20-23 (Brar, Ziehe)(XXXXX . Fax from Governor Toribio to Matthew Gachupin --Attendance List at 1-2 (dated Aug. 1, 2001), admitted October 29, 2018, at trial as United States' Ex. DX-IP; Anschuetz Report at 166 XXXXX; id. at 168 XXXXX.

         386. XXXXX, [144] XXXXX See, e.g., Nov. 16 Tr. at 3899:23-3901:9 (Leonard, deBuys)(XXXXX; id. at 3900:20-3901:7 (deBuys) XXXXX Dec. 5 Tr. at 5234:25-5234:3 (Brar, Ziehe) XXXXX id. at 5236:9-12 (Brar, Ziehe) XXXXX.

         387. At some date between 2002 and 2010, XXXXX See, e.g., Nov. 20 Tr. at 4631:20-4632:7 (Anschuetz, Marinelli) XXXXX Pino Interview Notes at 11 XXXXX.

         388. XXXXX See, e.g., Nov. 20 Tr. at 4632:8-4633:19 (Marinelli, Anschuetz) XXXXX; Anschuetz Report at 167 XXXXX.

         389. XXXXX See, e.g., Nov. 29 Tr. at 4644:3-4649:14 (Marinelli, Anschuetz) XXXXX Anschuetz Report at 159-61 XXXXX id. at 165 (XXXXX id. XXXXX.

         390. XXXXX See, e.g., Religious Freedom at 47-48, 56-57 XXXXX id. at 53 XXXXX Valles Caldera Religious Use at 59 XXXXX.

         391. The Valles Caldera is sacred to Zia Pueblo, in part, because Zia Pueblo believes that XXXXX See, e.g., Anschuetz Report at 202 XXXXX Jemez v. DOE, Summary Judgment Motion at 6 XXXXX

         392. XXXXX E.g., Nov. 29 Tr. at 4645:13-4649:14 (Marinelli, Anschuetz) XXXXX Valles Caldera Religious Use at 48-49 XXXXX Religious Freedom at 31-32 XXXXX.

         393. Through at least the 1970s, XXXXX See, e.g., Religious Freedom at 47-48 XXXXX; ICC Tr. at 59-60 (P. Toya) XXXXX.

         394. Through at least the 1970s, XXXXX See, e.g., Valles Caldera Religious Use at 52-56 XXXXX; Religious Freedom at 48-50 XXXXX; Anschuetz Report at 159 XXXXX.

         395. Through at least the 1970s, XXXXX E.g., Religious Freedom at 39-40 XXXXX; Anschuetz Report at 160 XXXXX.

         396. Through at least the 1970s, XXXXX See, e.g. Nov. 29 Tr. at 4664:4-14 (Marinelli, Anschuetz) XXXXX. Religious Freedom at 53 XXXXX.

         397. Through at least the 1970s, XXXXX See, e.g., Religious Freedom at 41-42 XXXXX; Anschuetz Report at 160 XXXXX.

         398. Through at least the 1970s, XXXXX See, e.g., Religious Freedom at 42 XXXXX id. at 44 XXXXX; Anschuetz Report at 160 XXXXX.

         399. Through at least the 1970s, Zia Pueblo's XXXXX See, e.g., Religious Freedom at 47 XXXXX Anschuetz Report at 161 XXXXX.

         400. XXXXX See, e.g., Nov. 29 Tr. at 4659:20-4660:14 (Marinelli, Anschuetz) XXXXX; Religious Freedom at 46 XXXXX.

         401. Through at least the 1970s, XXXXX See, e.g., Religious Freedom at 47-48 (XXXXX); Anschuetz at 161 XXXXX.

         402. Through at least the 1970s, XXXXX. See, e.g., Religious Freedom at 49 XXXXX; Anschuetz Report at 161 XXXXX.

         403. Through at least the 1970s, leaders from Zia Pueblo's XXXXX See, e.g., Nov. 29 Tr. at 4662:4-4663:10 (Marinelli, Anschuetz) XXXXX Religious Freedom at 60 XXXXX; Anschuetz Report at 161 XXXXX

         404. Through at least the 1970s, Zia Pueblo's societies used the Valles Caldera for annual cultural activities that occurred in January, March, April, June, August, October, and December. See, e.g., Nov. 29 Tr. at 4670:9-4673:15 (Marinelli, Anschuetz)(discussing specific Zia Pueblo ceremonies that occurr in each month); Religious Freedom at 7-9 (discussing Zia Pueblo fiesta, dance, and ceremony dates).

         405. Zia Pueblo's activity calendar establishes that virtually every Zia Pueblo member used the Valles Caldera through at least the late 1970s. See, e.g., Nov. 29 Tr. at 4673:16-4674:13 (Marinelli, Anschuetz)(concluding that the Zia Pueblo activity calendar, when considered alongside Anschuetz's table of society activities, establishes that the entire Pueblo uses the Valles Caldera); Anschuetz Report at 159-61 XXXXX.

         406. Zia Pueblo continues to use the Valles Caldera, and its members have snuck onto Redondo Peak during times non-Indians restricted their access. See, e.g., Nov. 7 Tr. at 2073:14-22 (Lucero)(“Ever since the land came under private ownership, and then the Park Service under Jemez member Park Service staff, Zia was restricted from accessing this land. Either our members have been escorted on to the land, or staff from the Park Service would prevent our access.”); Zia Pueblo Interviews at 3-4 (“The Pueblo of Zia requires access to the VCNP. The Pueblo suffered great harm when the access of its members to Redondo and the Valles was impeded by past land owners. Even under the administration of the VCNP and [National Park Service], permit requirements are problematic.”).

         407. Zia Pueblo considers its Valles Caldera use highly sensitive and refuses to disclose detailed information regarding its current religious practices; however, its current use is substantially similar to that which occurred through at least the 1970s. See, e.g., Nov. 7 Tr. at 2073 (Lucero)(“Members of the Pueblo continue to have the need to access the Valles Caldera Preserve for the same religious uses and activities as our ancestors had used the land for centuries.”); Nov. 29 Tr. at 4674:14-4676:3 (Anschuetz, Marinelli)(“[Zia Pueblo] maintained that the knowledge that Dr. Ellis had shared, especially for the Baca geothermal . . . project, was dangerous because it involved matters of spiritual power, as well as a spirituality.”); Zia Pueblo Interviews at 3 (“[Zia Pueblo] indirectly verified the accuracy of these accounts by saying that they regret I already know too much detail as their faces reddened and voices raised. In a nutshell, they hold firm that Zia Pueblo already has shared sufficient information that we need.”).

         408. Zia Pueblo members continue to walk to the Valles Caldera from Zia Pueblo. See, e.g., Nov. 7 Tr. at 2073:4-2074:15 (Marinelli, Lucero); Anschuetz Report at 168 (“‘Some of our members continue to trek to the Valles Caldera . . . during various times of the years for our traditional practices.” (quoting then-Zia Pueblo Lieutenant Governor Jerome Lucero)).

         409. Zia Pueblo constructed XXXXX See, e.g., Nov. 7 Tr. at 2024:3-2026:3 (Marinelli, Lucero) XXXXX Zia Pueblo Interviews at 3-4.

         C. Other Non-Jemez Tribes' and Pueblos' Interests in the Valles Caldera.

         410. Cochiti Pueblo ancestral domain extended into the Valles Caldera, and it continues to worship at Redondo Peak, for which it has a place name. See, e.g., Nov. 9 Tr. at 2712:2-9 (West, Suina)(defining “ancestral domain” as “a particular area that is within the domain of a particular community or pueblo . . . . [I]t's land that they have oversight on, but also responsibility for.”); id. at 2713:20-2714:4 (West, Suina)(asserting the Cochiti Pueblo's ancestral domain “crosses . . . into the Valles Caldera some, not a lot”[145]); id. at 2723:14-2724:12 (West, Suina) XXXXX; id. at 2781:4-20 (Marinelli, Suina)(discussing Cochiti Pueblo's Valles Caldera place names); Letter from Cochiti Governor Suina to Valles Caldera Trust (dated Feb. 4, 2014), admitted October 29, 2018, at trial as United States' Ex. DX-NQ, (“The cultural and religious practices entwined with Kowahnahmah AKA Valles Caldera are an integral part of our heritage and our continued traditional way of life.”).

         411. XXXXX See, e.g., Nov. 6 Tr. at 1927:9-24 (Marinelli, Ferguson) XXXXX; Nov. 9 Tr. at 2723:14-2724:12 (West, Suina).

         412. Cochiti Pueblo collects clays, plants, and minerals from the Valles Caldera. See, e.g., Nov. 6 at 1929:20-1933:13 (Marinelli, Ferguson)(affirming that Cochiti Pueblo gathered plants and minerals within the Valles Caldera); Nov. 9 Tr. at 2721:16-2722:20 (West, Suina)(stating that Cochiti Pueblo collects plants, clay, and obsidian from the Valles Caldera).

         413. Cochiti Pueblo has consulted with the National Park Service regarding its cultural connections to the Valles Caldera. See, e.g., Dec. 5 Tr. at 5263:9-17 (Marinelli, Silva-Bañuelos)(“My take-away was there were ancestral use sites, shrines, other cultural archaeological sites that were of interest to [Cochiti Pueblo] and their preservation and protection.”); Letter from Gov. Herrera, Pueblo de Cochiti, to Valles Caldera National Preserve (dated March 10, 2017), admitted October 29, 2018, at trial as United States' Ex. DX-QO (“We respectfully request access to sites or locations within the Preserve for use, collection, gathering, transporting or taking of plants, minerals, wildlife and other resources, and may include the restoration, repatriation, preservation and protection of sites to perform ceremonial activities in accordance with our traditional cultural rules of practice.”).

         414. San Ildefonso Pueblo traditionally viewed the Valles Caldera as a commons.[146] See, e.g., Nov. 29 Tr. at 4565:17-4569:10 (Marinelli, Anschuetz)(explaining concept of tetrads as providing geographic boundaries within a pueblo's cultural landscape); Nov. 30 Tr. at 4696:6-4697:25 (Marinelli, Anschuetz)(highlighting San Ildefonso Pueblo's statements regarding non-exclusivity); Anschuetz Report at 203 (“San Ildefonso representatives clearly articulate their community's embrace of the view that the Valles Caldera constitutes a commons with which San Ildefonso and other Tribes possess continuing essential relationship.”); Position Statement --Pueblo of San Ildefonso on Potential Federal Legislation Concerning Tribal Aboriginal Title Claims to Baca Location No. 1 Submitted to the Honorable Bill Redmond at 3 (dated Jan. 20, 1999), admitted November 20, 2019, at trial as United States' Ex. DX-HL (“Position Statement --Pueblo of San Ildefonso”)(“San Ildefonso has significant ties . . . to the lands encompassed in the third and fourth tetrads. Other pueblos have equally important ties to these areas. . . . [T]he lands referred to today as Baca Location Number 1 which includes the Valle Grande, are generally within the third and fourth tetrads.”); id. at 4 (“[T]he Pueblo [of San Ildefonso] believes that national, regional, and pueblo interests can best be served by taking the area into federal ownership, but affirmatively recognizing the right of the Pueblos to continue non-exclusive aboriginal uses on these lands.”); id. (“Even if legislation allowed return of small portions of the land along the outer boundary of the property to different pueblos, it would have the effect of cutting off the time immemorial uses of one Pueblo on lands claimed by another.”).

         415. San Ildefonso Pueblo consulted with the Valles Caldera Trust and the National Park Service on various issues, including its aboriginal hunting grounds, grazing concerns, and tribal access. See, e.g., Nov. 14 Tr. at 3271:12-3272:15 (Steffen)(stating that San Ildefonso Pueblo's 2016 Valles Caldera access request was for traditional cultural activity); id. at 3273:14-3274:9 (Steffen)(asserting that San Ildefonso Pueblo conducted a traditional cultural education trip to the Valles Caldera in 2010 or 2012); San Ildefonso Tribal Consultation Meeting Notes at 1 (dated March 5, 2002), admitted Dec. 5, 2018, at trial as United States' Ex. DX-IY (expressing interest in a tour for San Ildefonso elders and concerns over grazing, and hunting); Letter from John Gonzales, Governor, Pueblo of San Ildefonso to Dennis Trujillo, Preserve Manager, Valles Caldera National Preserve regarding a site visit to Valles Caldera Preserve at 1 (dated Sept. 11, 2002, admitted October 29, 2018, at trial as United States' Ex. DX-JK (“San Ildefonso has a deep attachment to the Preserve, which was established, many hundreds of years ago. There are cultural ties which the Pueblo desires to reconfirm; therefore, this visit [to the Valles Caldera] is very important.”); Email from Anastasia Steffen to Brittney VanDerWerff and Madeline Scheintaub regarding San Ildefonso Youth Group Visit Request at 1 (dated June 21, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-PZ (requesting Valles Caldera access on San Ildefonso youth group's behalf).

         416. The Jicarilla Apache Nation engaged in numerous consultations with the Valles Caldera Trust, including on a project involving the Valles Caldera's entire north-south corridor. See, e.g., Nov. 13 Tr. at 2917:2-17 (Marinelli, Steffen)(describing the north-south corridor project's scope and Jicarilla Apache Nation's involvement); Letter from Jicarilla Apache Tribe to Valles Caldera Trust Regarding Response to Road B Repairs on VCNP (dated June 27, 2003), admitted November 13, 2018, at trial as United States' Ex. DX-JS (requesting consultation).

         417. The Navajo Nation has place names for the Valle Grande and the Jemez Mountains.[147] See, e.g., Letter from the Navajo Nation, Traditional Culture Program to Jeff Cross, Executive Director, Valles Caldera at 1 (dated April 10, 2008), admitted October 29, 2018, at trial as United States' Ex. DX-LG (“Navajo Nation Letter”)(“[T]here are numerous Cultural Sacred Sites located within the proposed project area: 1) Ni'Ch'ihoyoolts'il -- Ground That Cracked Out -- Valle Grande, and 2) Dzil lizhin -- Jemez Mountains.”); Valles Caldera Transition Consultation at 4 (dated April 23, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-OM (“[The Valles Caldera] is a place of identity. Place names, too.”).

         418. The Navajo Nation has consulted with the Valles Caldera Trust and the National Park Service regarding the Valles Caldera's significance to the Navajo, specifically for plant collection.[148] See, e.g., Navajo Tribal Consultation Meeting Notes at 1-2 (dated March 26, 2002), admitted November 13, 2018, at trial as United States' Ex. DX-JA (“Both Redondo and the Valle Grande are sacred areas.”); Navajo Nation Letter at 1 (“If the proposed project inadvertently discovers Navajo habitation sites, plant gathering areas, human remains and objects of cultural patrimony the HPD-TCP request that we be notified respectively in accordance with the Native America Graves Protection and Repatriation Act (NAGPRA).”); Valles Caldera Transition Consultation at 4 (dated April 23, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-OM (“I have concerns about new [National Park Service] plant collection policy. . . . The feds should be asking [the Navajo Nation] how to manage the caldera.”); Anschuetz Report at 3 (asserting that the Valles Caldera is important to the Navajo Nation's origin traditions and as a mountain of cardinal direction).

         419. Santa Ana Pueblo has consulted with the Valles Caldera Trust and the National Park Service on topics including natural resources, restoration, and stewardship. See, e.g., Nov. 13 Tr. at 2998:11-3006:6 (Marinelli, Steffen)(discussing Santa Ana Pueblo's 2014 consultation with Valles Caldera Trust staff and leadership regarding Santa Ana Pueblo's Valles Caldera use), id. at 3014:17-3015:10 (asserting that Steffen met with a Tribe, likely Santa Ana Pueblo, in 2015 to discuss the Valles Caldera National Preserve foundation document); Dec. 13 Tr. at 5365:2-5366:18 (Marinelli, Silva-Bañuelos)(describing Santa Ana Pueblo's concerns about protecting the Valles Caldera's watershed, waterways, and wildlife); Handwritten Notes of Santa Ana Pueblo Meeting at 1, 4, 8, 10 (dated Sept. 12, 2014), admitted November 13, 2018, at trial as United States' Ex. DX-NZ (memorializing the topics that Santa Ana Pueblo discussed at its 2014 consultation with the Valles Caldera Trust).

         420. The Hopi Tribe engaged in numerous consultations with the Valles Caldera Trust regarding its cultural connections to the land and interest in various projects, including road projects in the Valle Grande, Cerro la Jara, and headquarters areas, and was the only Tribe to enter into a Memorandum of Agreement with the Valles Caldera Trust and New Mexico regarding a Terrestrial Ecosystem/Soils project, which involved surveying locations throughout the Valles Caldera. See, e.g., Nov. 13 Tr. at 2910:8-2914:1 (Marinelli, Steffen)(discussing the Hopi Tribe's interest in Valles Caldera road development projects); id. at 2928:21-2930:19:6 (Steffen, Marinelli)(describing the Hopi Tribe's interest in the Valles Caldera Terrestrial Ecosystem/Soils project and asserting that the Hopi Tribe was the only Tribe to sign a memorandum of Agreement with the Valles Caldera Trust regarding the project); Nov. 29 Tr. at 4530:15-4531:21 (Anschuetz, Marinelli)(stating that the Tewa Hopi came from near Chimayo, Abiquiu, which is on the Jemez Mountains' northeast side, and southeast of Santa Fe); Letter from the Hopi Tribe Cultural Preservation Office to Dennis Trujillo, VCNP Regarding Response to Development Project on VCNP (dated July 24, 2002), admitted October 29, 2018, at trial as United States' Ex. DX-JH (asserting the Hopi Tribe's interest in the Valles Caldera based on cultural affiliation); Letter from the Hopi Tribe to Anastasia Steffen, VCNP at 1 (dated Dec. 24, 2002), admitted October 29, 2018, at trial as United States' Ex. DX-JL (discussing consultation and correspondence between the Hopi Tribe and the Valles Caldera Trust “regarding reconstruction of 3.7 miles of the primary road system into the Preserve, and installation of culverts to facilitate stream crossings”); Handwritten Note in File of Meeting with AIPC Regarding Response to TES/Soil Survey at 1 (dated June 28, 2003), admitted November 13, 2018, at trial as United States' Ex. DX-JT (“Notes re: TES/Soils project”)(suggesting that a Tribe with Tewa ancestry should be “lead tribe for consultation”); Letter from Wayne Taylor, Jr., Chairman, Hopi Tribe to Gilbert Zepeda, Acting Forest Supervisor, Santa Fe National Forest Regarding Hopi Tribe Cultural Affiliation with Prehistoric Cultural Groups in the Valles Caldera Area at 1 (dated July 14, 2003), admitted November 13, 2018, at trial as United States' Ex. DX-JU (“[T]he Hopi Tribe claims cultural affiliation to prehistoric cultural groups in New Mexico, and specifically to the Valle Caldera area through the people of Tewa Village.”); Letter from Hopi Cultural Preservation Office to Gary Bratcher, Executive Director, Valles Caldera Trust at 1 (dated Aug. 11, 2010), admitted October 29, 2018, at trial as United States' Ex. DX-LS (“Regarding Preserve-wide Planning, we are interested in consulting on updating the current Tribal Access and Use Policy and the development of the Cultural Resources Management Plan. . . . Regarding Cultural Resources, we are also interested in consulting on the Ancestral Pueblo Obsidian Use Study and Banco Prehistoric Agricultural Research Project.”); Letter from Hopi Cultural Preservation Office to Dennis Trujillo, Executive Director, Valles Caldera Trust (dated June 29, 2012), admitted October 29, 2018, at trial as United States' Ex. DX-MZ (“The Hopi Cultural Preservation Office has previously stated that we are interested in consulting on any proposal that has the potential to adversely affect National Register eligible prehistoric sites on the Valles Caldera National Preserve.”); Memorandum of Agreement Among the Valles Caldera Trust and USDA, Forest Service, Southwest Region, and USDA Natural Resources Conservation Service and New Mexico State Historic Preservation Officer regarding Terrestrial Ecosystem and Soils Survey on the Valles Caldera National Preserve at 9 (dated Aug. 5, 2003), admitted November 13, 2018, at trial as United States' Ex. DX-JV.

         421. The Southern Ute Tribe engaged in numerous consultations with the Valles Caldera Trust regarding its cultural connections to the Valles Caldera, interest in Valles Caldera obsidian sources, and concerns about public access to obsidian locations. See, e.g., Notes re: TES/Soils project at 2 (expressing Southern Ute Tribe's interest in obsidian sources and concerns over public access to obsidian locations); Nov. 13 Tr. at 2923:10-2924:3 (Marinelli, Steffen)(discussing Valles Caldera Trust's consultations with the South Ute Tribe regarding the Tribe's interest in the Valles Caldera based on historic use); Letter from NAGPRA Coordinator, Southern Ute Tribe to Stephen Chomko, Cultural Resources Coordinator, Valles Caldera Trust re Response to Soil Survey (dated April 30, 2004), admitted November 13, 2018, at trial as United States' Ex. DX-JX (memorializing the Southern Ute Tribe's agreement to consult with the Valles Caldera Trust regarding “the Historic Property Protection and Responsibilities between New Mexico Historic Preservation Officer, the Advisory Council on Historic Preservation and the Valles Caldero [sic] Trust”).

         422. Laguna Pueblo engaged in numerous consultations with the Valles Caldera Trust regarding its cultural connections to the Valles Caldera, and, at a December 1, 2015 meeting, asserted that the National Park Service needed to consider other Tribes' input regarding Valles Caldera development projects. See, e.g., Nov. 7 Tr. at 2088:6-14 (Marinelli, Ferguson)(affirming that Laguna Pueblo asserted that the Valles Caldera Trust needed to consult Santa Clara Pueblo regarding Valles Caldera development projects); Notes re: TES/Soils project at 1 (expressing Laguna Pueblo's desire to participate in the Valles Caldera Terrestrial Ecosystem and Soils Survey project); VCNP Foundation Document Notes at 5 (“Laguna is guarded by four sacred mountains, including the Jemez Mountains. You've heard how we all use [the Valles Caldera] and how it's changed. . . . . It would be good to get back to how we used to gather and use [the Valles Caldera].”); Letter from Pueblo of Laguna Gov. Luarkie to A. Steffen, Valles Caldera Trust at 1 (dated June 19, 2012), admitted October 29, 2018, at trials as United States' Ex. DX-MY (“According to unpublished migration history, [Laguna Pueblo] ancestors journeyed from the north through [the Valles Caldera] area and settled for periods of time before traveling to our present location.”).

         423. Tesuque Pueblo engaged in numerous consultations with the Valles Caldera Trust regarding its cultural connections to the Valles Caldera, and, at a December 1, 2015 meeting, conveyed its support for Santa Clara Pueblo's position on Valles Caldera use and development. See, e.g., Nov. 29 Tr. at 4621:12-4622:17 (Marinelli, Anschuetz)(asserting that Tesuque Pueblo members used the Valles Caldera “in the 1960s and 1970s, and possibly later”); Interview Notes with Louie Hena by Kurt F. Anschuetz, Ph.D. at 5 (dated 2011), admitted October 29, 2018, at trial as United States' Ex. DX-ME (“[Tesuque Pueblo member] Louie Hena used to go into the Valles Caldera when the property was still owned by the Dunigans to fish and collect medicines.”); VCNP Foundation Document Notes at 7-8 (“Development in [the Valles Caldera] is big concern, especially geothermal. . . . I support [the Santa Clara governor's] points. . . . Multiple tribes have used [the Valles Caldera] ‘since time immemorial' and Tesuque has never given up their rights to land, resources, or rights to perform activities.” (internal quotation marks for emphasis and not quotation)).

         424. The Pueblos of Santa Clara, Zia, San Ildefonso, and Santo Domingo have engaged with the National Park Service to ensure that their youth maintain cultural connections to the Valles Caldera. See, e.g., Dec. 5 Tr. at 5351:22-5354:23 (Marinelli, Silva-Bañuelos)(“We've authorized a youth gathering from Santa Clara Pueblo in 2017, and again this year, in 2018.”); Email from Anastasia Steffen to Brittney VanDerWerff and Madeline Scheintaub Regarding San Ildefonso Youth Group Visit Request at 1 (dated June 21, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-PZ (discussing request from San Ildefonso Pueblo to visit the Valles Caldera with twenty five students to learn about “traditional cultural practices and places, . . . placenames, agricultural practices, history, and use of obsidian”); Email from Brittney VanDerWerff, [National Park Service] to Brenda Montoya, Madeline Scheintaub, and Anastasia Steffen Regarding Special Use Permit (dated June 22, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-QA; Email from Brittney VanDerWerff, [National Park Service] to Dutin García, Brenda Montoya and Madeline Scheintaub regarding Academic Use Permit at 1 (dated July 11, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-QB (“I hope that we can figure something out to create an opportunity for the youth of Santo Domingo and many other tribes.”).

         425. In 2003, the All Indian Pueblo Council[149] consulted with the Valles Caldera Trust to express concern regarding motorized vehicle use in the Valles Caldera. See, e.g., Nov. 13 Tr. at 2917:18-2918:20 (discussing Steffen's notes memorializing Tribal consultations related to the Valles Caldera Terrestrial Ecosystems project); Terrestrial Ecosystems Project at 1 (noting the All Indian Pueblo Council's concerns about Valles Caldera access for recreation and motorized vehicle use).

         426. Many Tribes, including the Jicarilla Apache Nation, the Navajo Nation, and the Southern Ute, and the Pueblos of San Ildefonso, Santa Clara, Laguna, Tesuque, and Zia asserted interests in the Valles Caldera, and expressed concerns over Valles Caldera management during multi-tribe meetings on April 23, 2015, [150] and December 1, 2015. See, e.g., Nov. 13 Tr. at 3006:11-3010:10 (Marinelli, Steffen)(discussing the April 13, 2015, Tribal consultation meeting); id. at 3015:25-3016:13 (Marinelli, Steffen)(discussing the December 1, 2015, meeting at which seven Tribes attended to discuss the Valles Caldera National Preserve foundation document); Valles Caldera Transition Consultation at 1-6; Email from Kim Greenwood re: VALL Tribal Listening Session at 1 (dated Dec. 21, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-PN (attaching notes summarizing Tribal concerns regarding traditional sites within the Valles Caldera).

         427. San Felipe Pueblo engaged in numerous consultations with the Valles Caldera Trust regarding its cultural connections to the Valles Caldera, and, at an April, 2015 meeting, argued that the National Park Service should permit San Felipe Pueblo to continue its traditional Valles Caldera use without disclosing specific locations within the Valles Caldera. See, e.g., Oct. 30 Tr. at 323:2-7 (Solimon, Tosa)(affirming that no Jemez Pueblo members objected to or questioned San Felipe Pueblo's assertions that San Felipe Pueblo has a traditional association with the Valles caldera); VCNP Transition Meeting Notes at 3 (“It is sad that now [San Felipe Pueblo has] to get permissions to gather plants, minerals. . . . Should not have to explain and answer questions about [San Felipe Pueblo's] traditional uses and need for access.”); Email from P. Stout, San Felipe, to M. Scheintaub, VCNP at 1 (dated May 12, 2016), admitted October 29, 2018, at trial as United States' Ex. DX-PU (“Valles Caldera area . . . is of traditional and cultural significance and is considered to be Traditional Cultural Property to many pueblos and tribes.”).

         428. The National Park Service incorporated input from seven Tribes into its Valles Caldera Foundation Document, which emphasizes the Tribes' historic use of and contemporary cultural connections to the Valles Caldera. See, e.g., Dec. 5 Tr. at 5391:6-5395:20 (Marinelli, Silva-Bañuelos); VCNP Foundation Document Notes at 3-16 (dated Dec. 1, 2015), admitted October 29, 2018, at trial as United States' Ex. DX-PE; VCNP Foundation Document at 8-10 (dated March, 2018), admitted October 29, 2018, at trial as United States' Ex. DX-RN (“Valles Caldera . . . is of spiritual and ceremonial importance to numerous American Indian peoples in the greater Southwest region. . . . These cultural connections are both contemporary and of great antiquity, and Valles Caldera continues to be part of the practices, beliefs, identity, and history of tribes and pueblos.”).

         429. Many Tribes use and hold the Jemez Mountains sacred, and the Valles Caldera, as the heart of the Jemez mountains and a source of unique resources, is particularly valued, for example, Santa Clara Pueblo and other Tribes have proposed that the United States classify the Jemez Mountains, of which the Valles Caldera is central, as a “traditional cultural property” given its extreme importance to many Tribes in the region. E.g., Dec. 3 Tr. at 5062:4-5064:21 (Marinelli, Anschuetz)(asserting that all consulting Tribes except Jemez Pueblo oppose geothermal development and seek to protect the entire Jemez Mountains); Santa Fe Nat'l Forest Ethnographic Assessment (Jan. 22, 2016), admitted December 3, 2018, at trial as United States' Ex. DX-VF (“[T]he general consensus among those interviewed within the Puebloan groups and the Jicarilla Apache and Navajo Nation representatives indicated that the Jemez Mountains were important to them as a sacred place, as a sacred landscape, or as a historic landscape.”).

         430. The National Park Service permits Tribes and Tribal members to gather plants from the Valles Caldera and is consulting with Tribes to develop an annual plant gathering permit that would allow a Tribal member to collect authorized plants using non-lethal collection techniques that the Pueblos requested. See, e.g., Dec. 5 Tr. at 5337:11-5341:3 (Leonard, Silva-Bañuelos)(asserting that, although federal law and regulations protect all resources within a national park, which means that individuals cannot collect plants absent a permit, the National Park Service has worked to tailor its Tribal collection permission policies to fit the Pueblos' and Tribes' needs); id. at 5341:4-9 (Leonard, Silva-Bañuelos)(asserting that the Pueblos of Cochiti, Jemez, and Santa Clara have consulted with the National Park Service regarding plant collections in the Valles Caldera).

         D. Jemez Pueblo's Interests in the Valles Caldera.

         431. Within the Valles Caldera, Jemez Pueblo uses a complex trail network, which it established over many centuries, for resource procurement, and to access agricultural areas, shrines, springs, and ancestral Jemez Mountains village sites. See, e.g, Ferguson Report at 12; Nov. 7 Tr. at 2186:10-2187:11 (Luebben, J. Madalena); Nov. 20 Tr. 4372:5-4373:20 (Richardson, D. Yepa).

         432. Jemez Pueblo has at least ninety place names for locations within the Valles Caldera.[151] See, e.g., Nov. 6 Tr. at 1786:8-23 (Ferguson)(affirming that Ferguson identified ninety Hemish places in the Valles Caldera); Ferguson Report at 7 (“Hemish place names document extensive use of the Valles Caldera National Preserve for religious activities, trails, eagle-catching, hunting, [152] fishing, plant collecting, tree harvesting, mineral collection, logistical camps, and ancient agriculture.”).

         433. Jemez Pueblo members describe the trails that lead from XXXXX as spiritual channels and umbilical cords, and place special significance on the trail that leads to XXXXX. See, e.g., Oct. 30 Tr. at 303:1-304:4 (P. Tosa); id. at 332:10-333:1 (Solimon, P. Tosa); Nov. 6 Tr. at 1863:17-1864:17 (Ferguson); Oct. 31 Tr. at 781:21-782:5 (B. Shendo) XXXXX Nov. 20 Tr. at 4375:11-23 (V. Gachupin) XXXXX.

         434. Jemez Pueblo conceptualizes all Valles Caldera watercourses as XXXXX. See, e.g., Nov. 6 Tr. at 1812:3-1813:11 (Keegan, Ferguson); High Altitude Adaptations at 115; id. at 117.

         435. Jemez Pueblo members gather resources from the Valles Caldera, including obsidian, pigments and minerals for dyes, during pilgrimages, hunts, initiations, or when a religious society's plant supply is low. See, e.g., Nov. 1 Tr. at 973:3-15 (Solimon, Loretto); Nov. 5 Tr. at 1719:17-1720:3 (Solimon, G. Gachupin); Nov. 9 Tr. at 2839:24-2841:9 (Solimon, J. Gachupin); Nov. 7 Tr. at 2274:10-2275:1 (Luebben, J. Madalena), id. at 2182:25-2184:9 (Luebben, J. Madalena); High Altitude Adaptations at 114.

         436. Jemez Pueblo medicine societies range XXXXX See, e.g., Nov. 1 Tr. at 978:13-25 (Loretto); Map Utilized in Court by Witness Thurman Loretto at 1 (undated), admitted December 13, 2018, at trial as Jemez Pueblo's Ex. PX 574 (XXXXX); Ferguson Report at 28.

         437. XXXXX. See, e.g., Nov. 1 at Tr. 853:6-23 (Richardson, P. Correo); Nov. 7 Tr. at 2191-2192:23 (Luebben, J. Madalena); Nov. 6 Tr. at 1866:24-1867:16 (Keegan, Ferguson); High Altitude Adaptations at 111-14.

         438. Jemez Pueblo members use XXXXX. See, e.g., High Altitude Adaptations at 111-14, 118; id. at 129-30; Nov. 6 Tr. at 1823:2-1824:14 (Keegan, Ferguson); id. 1867:8-16 (Keegan, Ferguson), id. at 1872:2-4 (Keegan, Ferguson); Ferguson Report at 88; id. at 124.

         439. Jemez Pueblo members use obsidian for ceremonies and, historically, as a trade item, and they gather obsidian from Cerro del Medio. See, e.g., Nov. 7 Tr. at 2180:14-2181:8 (Luebben, J. Madalena); Nov. 7 Tr. at 2183:1-14 (Luebben, J. Madalena); Ferguson Report at 88-89.

         440. Jemez Pueblo members XXXXX See, e.g., Nov. 1 Tr. at 1065:6-15 (Kicking Woman, Weslowski); Nov. 19 Tr. at 4223:19-20 (Marinelli, D. Yepa); High Altitude Adaptations at 110.

         441. The animals that Jemez Pueblo members hunt within the Valles Caldera include mule deer, elk, rabbit, buck, beaver, squirrel, antelope, turkey, sheep, cougar, and bear. See, e.g., Oct. 29 Tr. at 237-238:1-23 (P. Tosa); Nov. 5 Tr. at 1714:20-23 (G. Gachupin); Draft -- Meeting Summary Valles Caldera Trust at 4 (dated Feb. 27, 2010), admitted October 29, 2018, at trial as Jemez Pueblo's Ex. PX 363; Designation of Deposition Testimony -- Margaret Loretto at 18:3-16 (Loretto); id. at 28:24-25 (Loretto); High Altitude Adaptations at 108-11; id. at 116; Ferguson Report at 45; Map Used in Court by Witness Paul Tosa at 1 (undated), ...


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