[Congressional Bills 110th Congress]
[From the U.S. Government Printing Office]
[H.R. 5293 Received in Senate (RDS)]
2d Session
H. R. 5293
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 22 (legislative day, September 17), 2008
Received
_______________________________________________________________________
AN ACT
To approve the settlement of the water rights claims of the Shoshone-
Paiute Tribes of the Duck Valley Reservation in Nevada, to require the
Secretary of the Interior to carry out the settlement, and for other
purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Shoshone-Paiute Tribes of the Duck
Valley Reservation Water Rights Settlement Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) it is the policy of the United States, in accordance
with the trust responsibility of the United States to Indian
tribes, to promote Indian self-determination and economic self-
sufficiency and to settle Indian water rights claims without
lengthy and costly litigation, if practicable;
(2) quantifying rights to water and development of
facilities needed to use tribal water supplies is essential to
the development of viable Indian reservation economies and the
establishment of a permanent reservation homeland;
(3) uncertainty concerning the extent of the Shoshone-
Paiute Tribes' water rights has resulted in limited access to
water and inadequate financial resources necessary to achieve
self-determination and self-sufficiency;
(4) in 2006, the Tribes, the State of Idaho, the affected
individual water users, and the United States resolved all
tribal claims to water rights in the Snake River Basin
Adjudication through a consent decree entered by the District
Court of the Fifth Judicial District of the State of Idaho,
requiring no further Federal action to quantify the Tribes'
water rights in the State of Idaho;
(5) as of the date of enactment of this Act, proceedings to
determine the extent and nature of the water rights of the
Tribes in the East Fork of the Owyhee River in Nevada are
pending before the Nevada State Engineer;
(6) final resolution of the Tribes' water claims in the
East Fork of the Owyhee River adjudication will--
(A) take many years;
(B) entail great expense;
(C) continue to limit the access of the Tribes to
water, with economic and social consequences;
(D) prolong uncertainty relating to the
availability of water supplies; and
(E) seriously impair long-term economic planning
and development for all parties to the litigation;
(7) after many years of negotiation, the Tribes, the State,
and the upstream water users have entered into a settlement
agreement to resolve permanently all water rights of the Tribes
in the State; and
(8) the Tribes also seek to resolve certain water-related
claims for damages against the United States.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to resolve outstanding issues with respect to the East
Fork of the Owyhee River in the State in such a manner as to
provide important benefits to--
(A) the United States;
(B) the State;
(C) the Tribes; and
(D) the upstream water users;
(2) to achieve a fair, equitable, and final settlement of
all claims of the Tribes, members of the Tribes, and the United
States on behalf of the Tribes and members of Tribes to the
waters of the East Fork of the Owyhee River in the State;
(3) to ratify and provide for the enforcement of the
Agreement among the parties to the litigation;
(4) to resolve the Tribes' water-related claims for damages
against the United States;
(5) to require the Secretary to perform all obligations of
the Secretary under the Agreement and this Act; and
(6) to authorize the actions and appropriations necessary
to meet the obligations of the United States under the
Agreement and this Act.
SEC. 4. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means the agreement
entitled the ``Agreement to Establish the Relative Water Rights
of the Shoshone-Paiute Tribes of the Duck Valley Reservation
and the Upstream Water Users, East Fork Owyhee River'' and
signed in counterpart between, on, or about September 22, 2006,
and January 15, 2007 (including all attachments to that
Agreement).
(2) Development fund.--The term ``Development Fund'' means
the Shoshone-Paiute Tribes Water Rights Development Fund
established by section 8(b)(1).
(3) East fork of the owyhee river.--The term ``East Fork of
the Owyhee River'' means the portion of the east fork of the
Owyhee River that is located in the State.
(4) Maintenance fund.--The term ``Maintenance Fund'' means
the Shoshone-Paiute Tribes Operation and Maintenance Fund
established by section 8(c)(1).
(5) Reservation.--The term ``Reservation'' means the Duck
Valley Reservation established by the Executive order dated
April 16, 1877, as adjusted pursuant to the Executive order
dated May 4, 1886, and Executive order numbered 1222 and dated
July 1, 1910, for use and occupation by the Western Shoshones
and the Paddy Cap Band of Paiutes.
(6) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(7) State.--The term ``State'' means the State of Nevada.
(8) Tribal water rights.--The term ``tribal water rights''
means rights of the Tribes described in the Agreement relating
to water, including groundwater, storage water, and surface
water.
(9) Tribes.--The term ``Tribes'' means the Shoshone-Paiute
Tribes of the Duck Valley Reservation.
(10) Upstream water user.--The term ``upstream water user''
means a non-Federal water user that--
(A) is located upstream from the Reservation on the
East Fork of the Owyhee River; and
(B) is a signatory to the Agreement as a party to
the East Fork of the Owyhee River adjudication.
SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT;
AUTHORIZATION.
(a) In General.--Except as provided in subsection (c) and except to
the extent that the Agreement otherwise conflicts with provisions of
this Act, the Agreement is approved, ratified, and confirmed.
(b) Secretarial Authorization.--The Secretary is authorized and
directed to execute the Agreement as approved by Congress.
(c) Exception for Tribal Water Marketing.--Notwithstanding any
language in the Agreement to the contrary, nothing in this Act
authorizes the Tribes to use or authorize others to use tribal water
rights off the Reservation, other than use for storage at Wild Horse
Reservoir for use on tribal land and for the allocation of 265 acre
feet to upstream water users under the Agreement, or use on tribal land
off the Reservation.
(d) Environmental Compliance.--Execution of the Agreement by the
Secretary under this section shall not constitute major Federal action
under the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
The Secretary shall carry out all environmental compliance required by
Federal law in implementing the Agreement.
(e) Performance of Obligations.--The Secretary and any other head
of a Federal agency obligated under the Agreement shall perform actions
necessary to carry out an obligation under the Agreement in accordance
with this Act.
SEC. 6. TRIBAL WATER RIGHTS.
(a) In General.--Tribal water rights shall be held in trust by the
United States for the benefit of the Tribes.
(b) Administration.--
(1) Enactment of water code.--Not later than 3 years after
the date of enactment of this Act, the Tribes, in accordance
with provisions of the Tribes' constitution and subject to the
approval of the Secretary, shall enact a water code to
administer tribal water rights.
(2) Interim administration.--The Secretary shall regulate
the tribal water rights during the period beginning on the date
of enactment of this Act and ending on the date on which the
Tribes enact a water code under paragraph (1).
(c) Tribal Water Rights Not Subject to Loss.--The tribal water
rights shall not be subject to loss by abandonment, forfeiture, or
nonuse.
SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT.
(a) Status of the Duck Valley Indian Irrigation Project.--Nothing
in this Act shall affect the status of the Duck Valley Indian
Irrigation Project under Federal law.
(b) Capital Costs Nonreimbursable.--The capital costs associated
with the Duck Valley Indian Irrigation Project as of the date of
enactment of this Act, including any capital cost incurred with funds
distributed under this Act for the Duck Valley Indian Irrigation
Project, shall be nonreimbursable.
SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS.
(a) Definition of Funds.--In this section, the term ``Funds''
means--
(1) the Development Fund; and
(2) the Maintenance Fund.
(b) Development Fund.--
(1) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``Shoshone-Paiute
Tribes Water Rights Development Fund''.
(2) Use of funds.--
(A) Priority use of funds for rehabilitation.--The
Tribes shall use amounts in the Development Fund to--
(i) rehabilitate the Duck Valley Indian
Irrigation Project; or
(ii) for other purposes under subparagraph
(B), provided that the Tribes have given
written notification to the Secretary that--
(I) the Duck Valley Indian
Irrigation Project has been
rehabilitated to an acceptable
condition; or
(II) sufficient funds will remain
available from the Development Fund to
rehabilitate the Duck Valley Indian
Irrigation Project to an acceptable
condition after expending funds for
other purposes under subparagraph (B).
(B) Other uses of funds.--Once the Tribes have
provided written notification as provided in
subparagraph (A)(ii)(I) or (A)(ii)(II), the Tribes may
use amounts from the Development Fund for any of the
following purposes:
(i) To expand the Duck Valley Indian
Irrigation Project.
(ii) To pay or reimburse costs incurred by
the Tribes in acquiring land and water rights.
(iii) For purposes of cultural
preservation.
(iv) To restore or improve fish or wildlife
habitat.
(v) For fish or wildlife production, water
resource development, or agricultural
development.
(vi) For water resource planning and
development.
(vii) To pay the costs of--
(I) designing and constructing
water supply and sewer systems for
tribal communities, including a water
quality testing laboratory;
(II) other appropriate water-
related projects and other related
economic development projects;
(III) the development of a water
code; and
(IV) other costs of implementing
the Agreement.
(3) Authorization of appropriations.--For each of fiscal
years 2009 through 2013, there is authorized to be appropriated
to the Secretary for deposit in the Development Fund an amount
equal to the sum of--
(A) $9,000,000; and
(B) the interest that would have accrued during the
preceding fiscal year on balances held in the
Development Fund, as calculated using the applicable
rate for interest-bearing obligations of the United
States.
(c) Maintenance Fund.--
(1) Establishment.--There is established in the Treasury of
the United States a fund to be known as the ``Shoshone-Paiute
Tribes Operation and Maintenance Fund''.
(2) Use of funds.--The Tribes shall use amounts in the
Maintenance Fund to pay or provide reimbursement for--
(A) operation, maintenance, and replacement costs
of the Duck Valley Indian Irrigation Project and other
water-related projects funded under this Act; or
(B) operation, maintenance, and replacement costs
of water supply and sewer systems for tribal
communities, including the operation and maintenance
costs of a water quality testing laboratory.
(3) Authorization of appropriations.--For each of fiscal
years 2009 through 2013, there is authorized to be appropriated
to the Secretary for deposit in the Maintenance Fund an amount
equal to the sum of--
(A) $3,000,000; and
(B) the interest that would have accrued during the
preceding fiscal year on balances held in the
Maintenance Fund, as calculated using the applicable
rate for interest-bearing obligations of the United
States.
(d) Estimate of Accrued Interest.--The President's budget
submission shall include an estimate of the amount of interest that
would have accrued under the subsections (b)(3)(B), (c)(3)(B), and
(e)(2).
(e) Additional Authorization of Appropriations of Interest.--
(1) In general.--There is authorized to be appropriated an
amount equal to the additional interest that would have accrued
on amounts in the Funds during the period beginning on the date
of completion of the event described in section 9(d)(3) and
ending on the later of--
(A) the date of completion of the event described
in section 9(d)(1); or
(B) the date of completion of the event described
in section 9(d)(2).
(2) Calculation.--The interest authorized to be
appropriated under paragraph (1) shall be calculated using the
applicable rate for interest-bearing obligations of the United
States.
(f) Availability of Amounts From Funds.--Amounts made available
under subsections (b)(3), (c)(3), and (e) shall be available for
expenditure or withdrawal only after the effective date as set forth in
section 9(d).
(g) Administration of Funds.--Upon completion of the actions
described in section 9(d), the Secretary, in accordance with the
American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C.
4001 et seq.) shall manage the Funds, including by investing amounts
from the Funds in accordance with the Act of April 1, 1880 (25 U.S.C.
161), and the first section of the Act of June 24, 1938 (25 U.S.C.
162a).
(h) Expenditures and Withdrawal.--
(1) Tribal management plan.--
(A) In general.--The Tribes may withdraw all or
part of amounts in the Funds on approval by the
Secretary of a tribal management plan as described in
the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001 et seq.).
(B) Requirements.--In addition to the requirements
under the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.), the tribal
management plan shall require that the Tribes spend any
amounts withdrawn from the Funds in accordance with the
purposes described in subsection (b)(2) or (c)(2).
(C) Enforcement.--The Secretary may take judicial
or administrative action to enforce the provisions of
any tribal management plan to ensure that any amounts
withdrawn from the Funds under the plan are used in
accordance with this Act and the Agreement.
(D) Liability.--If the Tribes exercise the right to
withdraw amounts from the Funds, neither the Secretary
nor the Secretary of the Treasury shall retain any
liability for the expenditure or investment of the
amounts.
(2) Expenditure plan.--
(A) In general.--The Tribes shall submit to the
Secretary for approval an expenditure plan for any
portion of the amounts in the Funds that the Tribes do
not withdraw under the tribal management plan.
(B) Description.--The expenditure plan shall
describe the manner in which, and the purposes for
which, amounts of the Tribes remaining in the Funds
will be used.
(C) Approval.--On receipt of an expenditure plan
under subparagraph (A), the Secretary shall approve the
plan if the Secretary determines that the plan is
reasonable and consistent with this Act and the
Agreement.
(D) Annual report.--For each Fund, the Tribes shall
submit to the Secretary an annual report that describes
all expenditures from the Fund during the year covered
by the report.
(3) Funding agreement.--Notwithstanding any other provision
of this Act, on receipt of a request from the Tribes, the
Secretary shall include an amount from funds made available
under this section in the funding agreement of the Tribes under
title IV of the Indian Self-Determination and Education
Assistance Act (25 U.S.C. 458aa et seq.), for use in accordance
with subsections (b)(2) and (c)(2). No amount made available
under this Act may be requested until the waivers under section
9(a) take effect.
(i) No Per Capita Payments.--No amount from the Funds (including
any amounts appropriated under subsections (b)(3)(B), (c)(3)(B), and
(e)(1) for interest income that would have accrued to the Funds) shall
be distributed to a member of the Tribes on a per capita basis.
SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS.
(a) Waiver and Release of Claims by Tribes and United States Acting
as Trustee for Tribes.--In return for recognition of the Tribes' water
rights and other benefits as set forth in the Agreement and this Act,
the Tribes, on behalf of themselves and their members, and the United
States acting in its capacity as trustee for the Tribes are authorized
to execute a waiver and release of--
(1) all claims for water rights in the State of Nevada that
the Tribes, or the United States acting in its capacity as
trustee for the Tribes, asserted, or could have asserted, in
any proceeding, including pending proceedings before the Nevada
State Engineer to determine the extent and nature of the water
rights of the Tribes in the East Fork of the Owyhee River in
Nevada, up to and including the effective date, except to the
extent that such rights are recognized in the Agreement or this
Act; and
(2) all claims for damages, losses or injuries to water
rights or claims of interference with, diversion or taking of
water rights (including claims for injury to lands resulting
from such damages, losses, injuries, interference with,
diversion, or taking of water rights) within the State of
Nevada that first accrued at any time up to and including the
effective date.
(b) Waiver and Release of Claims by Tribes Against United States.--
The Tribes, on behalf of themselves and their members, are authorized
to execute a waiver and release of--
(1) all claims against the United States, its agencies, or
employees, relating in any manner to claims for water rights in
or water of the States of Nevada and Idaho that the United
States acting in its capacity as trustee for the Tribes
asserted, or could have asserted, in any proceeding, including
pending proceedings before the Nevada State Engineer to
determine the extent and nature of the water rights of the
Tribes in the East Fork of the Owyhee River in Nevada, or the
Snake River Basin Adjudication in Idaho;
(2) all claims against the United States, its agencies, or
employees relating in any manner to damages, losses, or
injuries to water, water rights, land, or other resources due
to loss of water or water rights (including damages, losses or
injuries to fishing and other similar rights due to loss of
water or water rights; claims relating to interference with,
diversion or taking of water; or claims relating to failure to
protect, acquire, replace, or develop water, water rights or
water infrastructure) within the States of Nevada and Idaho
that first accrued at any time up to and including the
effective date;
(3) all claims against the United States, its agencies, or
employees relating to the operation, maintenance, or
rehabilitation of the Duck Valley Indian Irrigation Project
that first accrued at any time up to and including the date
upon which the Tribes notify the Secretary as provided in
section 8(b)(2)(A)(ii)(I) that the rehabilitation of the Duck
Valley Indian Irrigation Project under this Act to an
acceptable level has been accomplished;
(4) all claims against the United States, its agencies, or
employees relating in any manner to the litigation of claims
relating to the Tribes' water rights in pending proceedings
before the Nevada State Engineer to determine the extent and
nature of the water rights of the Tribes in the East Fork of
the Owyhee River in Nevada or the Snake River Basin
Adjudication in Idaho; and
(5) all claims against the United States, its agencies, or
employees relating in any manner to the negotiation, execution,
or adoption of the Agreement, exhibits thereto, the decree
referred to in subsection (d)(2), or this Act.
(c) Reservation of Rights and Retention of Claims.--Notwithstanding
the waivers and releases authorized in this Act, the Tribes on their
own behalf and the United States acting in its capacity as trustee for
the Tribes retain--
(1) all claims for enforcement of the Agreement, the decree
referred to in subsection (d)(2), or this Act, through such
legal and equitable remedies as may be available in the decree
court or the appropriate Federal court;
(2) all rights to acquire a water right in a State to the
same extent as any other entity in the State, in accordance
with State law, and to use and protect water rights acquired
after the date of enactment of this Act;
(3) all claims relating to activities affecting the quality
of water including any claims the Tribes might have under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including
claims for damages to natural resources), the Safe Drinking
Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution
Control Act (33 U.S.C. 1251 et seq.), and the regulations
implementing those Acts; and
(4) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to this
Act.
(d) Effective Date.--Notwithstanding anything in the Agreement to
the contrary, the waivers by the Tribes, or the United States on behalf
of the Tribes, under this section shall take effect on the date on
which the Secretary publishes in the Federal Register a statement of
findings that includes a finding that--
(1) the Agreement and the waivers and releases authorized
and set forth in subsections (a) and (b) have been executed by
the parties and the Secretary;
(2) the Fourth Judicial District Court, Elko County,
Nevada, has issued a judgment and decree consistent with the
Agreement from which no further appeal can be taken; and
(3) the amounts authorized under subsections (b)(3) and
(c)(3) of section 8 have been appropriated.
(e) Failure To Publish Statement of Findings.--If the Secretary
does not publish a statement of findings under subsection (d) by March
31, 2016--
(1) the Agreement and this Act shall not take effect; and
(2) any funds and interest accrued thereon that have been
appropriated under this Act shall immediately revert to the
general fund of the United States Treasury.
(f) Tolling of Claims.--
(1) In general.--Each applicable period of limitation and
time-based equitable defense relating to a claim described in
this section shall be tolled for the period beginning on the
date of enactment of this Act and ending on the date on which
the amounts authorized to be appropriated under subsections
(b)(3) and (c)(3) of section 8 are appropriated.
(2) Effect of subparagraph.--Nothing in this subparagraph
revives any claim or tolls any period of limitation or time-
based equitable defense that expired before the date of
enactment of this Act.
SEC. 10. MISCELLANEOUS.
(a) General Disclaimer.--The parties to the Agreement expressly
reserve all rights not specifically granted, recognized, or
relinquished by--
(1) the settlement described in the Agreement; or
(2) this Act.
(b) Limitation of Claims and Rights.--Nothing in this Act--
(1) establishes a standard for quantifying--
(A) a Federal reserved water right;
(B) an aboriginal claim; or
(C) any other water right claim of an Indian tribe
in a judicial or administrative proceeding;
(2) affects the ability of the United States, acting in its
sovereign capacity, to take actions authorized by law,
including any laws relating to health, safety, or the
environment, including the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C.
9601 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et
seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251
et seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.)
(commonly known as the ``Resource Conservation and Recovery Act
of 1976''), and the regulations implementing those Acts;
(3) affects the ability of the United States to take
actions, acting in its capacity as trustee for any other Tribe,
Pueblo, or allottee;
(4) waives any claim of a member of the Tribes in an
individual capacity that does not derive from a right of the
Tribes; or
(5) limits the right of a party to the Agreement to
litigate any issue not resolved by the Agreement or this Act.
(c) Admission Against Interest.--Nothing in this Act constitutes an
admission against interest by a party in any legal proceeding.
(d) Reservation.--The Reservation shall be--
(1) considered to be the property of the Tribes; and
(2) permanently held in trust by the United States for the
sole use and benefit of the Tribes.
(e) Jurisdiction.--
(1) Subject matter jurisdiction.--Nothing in the Agreement
or this Act restricts, enlarges, or otherwise determines the
subject matter jurisdiction of any Federal, State, or tribal
court.
(2) Civil or regulatory jurisdiction.--Nothing in the
Agreement or this Act impairs or impedes the exercise of any
civil or regulatory authority of the United States, the State,
or the Tribes.
(3) Consent to jurisdiction.--The United States consents to
jurisdiction in a proper forum for purposes of enforcing the
provisions of the Agreement.
(4) Effect of subsection.--Nothing in this subsection
confers jurisdiction on any State court to--
(A) interpret Federal law regarding the health,
safety, or the environment or determine the duties of
the United States or other parties pursuant to such
Federal law; or
(B) conduct judicial review of a Federal agency
action.
Passed the House of Representatives September 17, 2008.
Attest:
LORRAINE C. MILLER,
Clerk.