[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[S. 462 Reported in Senate (RS)]
Calendar No. 872
110th CONGRESS
2d Session
S. 462
[Report No. 110-415]
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.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
January 31, 2007
Mr. Reid (for himself, Mr. Ensign, Mr. Craig, and Mr. Crapo) introduced
the following bill; which was read twice and referred to the Committee
on Indian Affairs
July 10 (legislative day, July 9), 2008
Reported by Mr. Dorgan, with an amendment
[Strike out all after the enacting clause and insert the part printed
in italic]
_______________________________________________________________________
A BILL
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,
<DELETED>SECTION 1. SHORT TITLE.</DELETED>
<DELETED> This Act may be cited as the ``Shoshone-Paiute Tribes of
Duck Valley Water Rights Settlement Act''.</DELETED>
<DELETED>SEC. 2. FINDINGS.</DELETED>
<DELETED> Congress finds that--</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (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;</DELETED>
<DELETED> (3) uncertainty concerning the extent of the right
to water of the Shoshone-Paiute Tribes has limited the access
of the Tribes to water and financial resources necessary to
achieve self-determination and self-sufficiency;</DELETED>
<DELETED> (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 implement the Tribes'
water rights in the State of Idaho;</DELETED>
<DELETED> (5) as of the date of enactment of this Act,
proceedings to determine the extent and nature of the water
rights of the Tribes are pending before the Nevada State
Engineer;</DELETED>
<DELETED> (6) final resolution through litigation of the
water claims of the Tribes will--</DELETED>
<DELETED> (A) take many years;</DELETED>
<DELETED> (B) entail great expense;</DELETED>
<DELETED> (C) continue to limit the access of the
Tribes to water, with economic and social
consequences;</DELETED>
<DELETED> (D) prolong uncertainty relating to the
availability of water supplies; and</DELETED>
<DELETED> (E) seriously impair long-term economic
planning and development for all parties to the
litigation;</DELETED>
<DELETED> (7) after many years of negotiation, the United
States, 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</DELETED>
<DELETED> (8) the Tribes have certain water-related claims
for damages against the United States.</DELETED>
<DELETED>SEC. 3. PURPOSES.</DELETED>
<DELETED> The purposes of this Act are--</DELETED>
<DELETED> (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--</DELETED>
<DELETED> (A) the United States;</DELETED>
<DELETED> (B) the State;</DELETED>
<DELETED> (C) the Tribes; and</DELETED>
<DELETED> (D) the upstream water users;</DELETED>
<DELETED> (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 to the East Fork
of the Owyhee River in the State;</DELETED>
<DELETED> (3) to ratify and provide for the enforcement of
the Agreement among the parties to the litigation;</DELETED>
<DELETED> (4) to resolve the Tribes' water-related claims
for damages against the United States;</DELETED>
<DELETED> (5) to require the Secretary to perform all
obligations of the Secretary under the Agreement and this Act;
and</DELETED>
<DELETED> (6) to authorize the actions and appropriations
necessary for the United States to meet the obligations of the
United States under the Agreement and this Act.</DELETED>
<DELETED>SEC. 4. DEFINITIONS.</DELETED>
<DELETED> In this Act:</DELETED>
<DELETED> (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
Indian Reservation and the Upstream Water Users, East Fork
Owyhee River'' (including all attachments to that
agreement).</DELETED>
<DELETED> (2) Development fund.--The term ``Development
Fund'' means the Shoshone-Paiute Tribes Water Rights
Development Fund established by section 7(b)(1).</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (4) Maintenance fund.--The term ``Maintenance
Fund'' means the Shoshone-Paiute Tribes Operation and
Maintenance Fund established by section 7(c)(1).</DELETED>
<DELETED> (5) Secretary.--The term ``Secretary'' means the
Secretary of the Interior.</DELETED>
<DELETED> (6) State.--The term ``State'' means the State of
Nevada.</DELETED>
<DELETED> (7) Tribal water right.--The term ``tribal water
right'' means a right of the Tribes described in the Agreement
relating to water, including groundwater, storage water, and
surface water.</DELETED>
<DELETED> (8) Tribes.--The term ``Tribes'' means the
Shoshone-Paiute Tribes of the Duck Valley Indian
Reservation.</DELETED>
<DELETED> (9) Upstream water user.--The term ``upstream
water user'' means an individual water user that--</DELETED>
<DELETED> (A) is located upstream from the Duck
Valley Indian Reservation on the East Fork of the
Owyhee River; and</DELETED>
<DELETED> (B) is a signatory to the
Agreement.</DELETED>
<DELETED>SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF
AGREEMENT.</DELETED>
<DELETED> (a) In General.--Except as provided in section 1f of
article III of the Agreement, and except to the extent that the
Agreement otherwise conflicts with this Act, the Agreement is approved,
ratified, and confirmed.</DELETED>
<DELETED> (b) Performance of Obligations.--The Secretary and any
other head of a Federal agency obligated under the Agreement shall
perform any action necessary to carry out an obligation under the
Agreement in accordance with this Act.</DELETED>
<DELETED>SEC. 6. TRIBAL WATER RIGHTS.</DELETED>
<DELETED> (a) In General.--The Secretary shall hold the tribal water
rights in trust on behalf of the United States for the benefit of the
Tribes.</DELETED>
<DELETED> (b) Administration.--</DELETED>
<DELETED> (1) Enactment of water code.--Not later than 3
years after the date of enactment of this Act, the Tribes shall
enact a water code to administer tribal water rights.</DELETED>
<DELETED> (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).</DELETED>
<DELETED> (c) Loss of Tribal Water Rights.--The tribal water rights
shall not be subject to loss by abandonment, forfeiture, or
nonuse.</DELETED>
<DELETED>SEC. 7. DEVELOPMENT AND MAINTENANCE FUNDS.</DELETED>
<DELETED> (a) Definition of Funds.--In this section, the term
``Funds'' means--</DELETED>
<DELETED> (1) the Development Fund; and</DELETED>
<DELETED> (2) the Maintenance Fund.</DELETED>
<DELETED> (b) Development Fund.--</DELETED>
<DELETED> (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''.</DELETED>
<DELETED> (2) Use of funds.--The Tribes shall use amounts in
the Development Fund--</DELETED>
<DELETED> (A) to pay or reimburse costs incurred by
the Tribes in acquiring land and water
rights;</DELETED>
<DELETED> (B) for purposes of cultural
preservation;</DELETED>
<DELETED> (C) to restore or improve fish or wildlife
habitat;</DELETED>
<DELETED> (D) for fish or wildlife production, water
resource development, agricultural development,
rehabilitation, and expansion of the Duck Valley
Irrigation Project;</DELETED>
<DELETED> (E) for water resource planning and
development; or</DELETED>
<DELETED> (F) to pay the costs of designing and
constructing water supply and sewer systems for tribal
communities, including--</DELETED>
<DELETED> (i) a water quality testing
laboratory;</DELETED>
<DELETED> (ii) other appropriate water-
related projects and other related economic
development projects;</DELETED>
<DELETED> (iii) the development of a water
code; and</DELETED>
<DELETED> (iv) other costs of implementing
the Agreement.</DELETED>
<DELETED> (3) Authorization of appropriations.--There is
authorized to be appropriated to the Secretary for deposit in
the Development Fund $9,000,000 for each of fiscal years 2008
through 2012.</DELETED>
<DELETED> (c) Maintenance Fund.--</DELETED>
<DELETED> (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''.</DELETED>
<DELETED> (2) Use of funds.--The Tribes shall use amounts in
the Maintenance Fund to pay or provide reimbursement for the
costs of--</DELETED>
<DELETED> (A) operation and maintenance of the Duck
Valley Irrigation Project and other water-related
projects funded under this Act; or</DELETED>
<DELETED> (B) water supply and sewer systems for
tribal communities, including the operation and
maintenance costs of a water quality testing
laboratory.</DELETED>
<DELETED> (3) Authorization of appropriations.--There is
authorized to be appropriated to the Secretary for deposit in
the Maintenance Fund $3,000,000 for each of fiscal years 2008
through 2012.</DELETED>
<DELETED> (d) Administration of Funds.--</DELETED>
<DELETED> (1) In general.--The Secretary, in accordance with
the American Indian Trust Fund Management Reform Act of 1994
(25 U.S.C. 4001 et seq.), this Act, and the Agreement, shall
manage the Funds, including by investing amounts from the Funds
in accordance with--</DELETED>
<DELETED> (A) the Act of April 1, 1880 (25 U.S.C.
161); and</DELETED>
<DELETED> (B) the first section of the Act of June
24, 1938 (25 U.S.C. 162a).</DELETED>
<DELETED> (2) Distributions.--</DELETED>
<DELETED> (A) Withdrawals.--</DELETED>
<DELETED> (i) In general.--During any fiscal
year, the Tribes may withdraw amounts from the
Funds if the Secretary approves a plan of the
Tribes to withdraw amounts under section 202 of
the American Indian Trust Fund Management
Reform Act of 1994 (25 U.S.C. 4022).</DELETED>
<DELETED> (ii) Plan to withdraw amounts.--
</DELETED>
<DELETED> (I) Inclusion.--In
addition to any information required
under section 202 of the American
Indian Trust Fund Management Reform Act
of 1994 (25 U.S.C. 4022), a plan of the
Tribes to withdraw amounts under this
subparagraph shall include a
requirement that the Tribes spend the
amounts withdrawn from the Funds during
a fiscal year for 1 or more uses
described in subsection (b)(2) or
(c)(2).</DELETED>
<DELETED> (II) Enforcement.--The
Secretary may take administrative or
judicial action to enforce a plan of
the Tribes to withdraw
amounts.</DELETED>
<DELETED> (B) Remaining amounts.--</DELETED>
<DELETED> (i) In general.--On approval of an
expenditure plan submitted by the Tribes under
clause (ii), the Secretary shall distribute to
the Tribes amounts in the Funds not withdrawn
by the Tribes during the preceding fiscal
year.</DELETED>
<DELETED> (ii) Expenditure plan.--</DELETED>
<DELETED> (I) In general.--For each
fiscal year, the Tribes shall submit to
the Secretary for approval an
expenditure plan for amounts described
in clause (i).</DELETED>
<DELETED> (II) Inclusions.--An
expenditure plan under subclause (I)
shall include--</DELETED>
<DELETED> (aa) an accounting
by the Tribes of any funds
withdrawn by the Tribes from
the Funds during the preceding
fiscal year, including a
description of any use by the
Tribes of the funds and the
amount remaining in the Funds
for the preceding fiscal year;
and</DELETED>
<DELETED> (bb) a description
of the means by which the
Tribes will use any amount
distributed under this
subparagraph.</DELETED>
<DELETED> (iii) Approval.--The Secretary
shall approve an expenditure plan under this
subparagraph if the Secretary determines that
the plan is--</DELETED>
<DELETED> (I) reasonable;
and</DELETED>
<DELETED> (II) consistent with this
Act and the Agreement.</DELETED>
<DELETED> (C) Limitations.--</DELETED>
<DELETED> (i) Timing.--No amount from the
Funds (including any interest income accruing
to the Funds) shall be distributed until the
waivers under section 8(a) take
effect.</DELETED>
<DELETED> (ii) No per capita
distributions.--No amount from the Funds
(including any interest income accruing to the
Funds) shall be distributed to a member of the
Tribes on a per capita basis.</DELETED>
<DELETED> (3) Funding agreement.--Notwithstanding any other
provision of this Act, on receipt of a request from the Tribes,
the Secretary shall include an amount appropriated under this
subsection 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).</DELETED>
<DELETED> (4) Liability.--The Secretary and the Secretary of
the Treasury shall not retain any liability for the expenditure
or investment of amounts distributed to the Tribes under this
subsection.</DELETED>
<DELETED> (5) 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 subsection for
that project, shall be permanently nonreimbursable.</DELETED>
<DELETED>SEC. 8. TRIBAL WAIVER OF CLAIMS.</DELETED>
<DELETED> (a) Waivers.--</DELETED>
<DELETED> (1) In general.--Except as otherwise provided in
the Agreement and this Act, the Tribes, and the United States
on behalf of the Tribes, waive and release--</DELETED>
<DELETED> (A) all claims to water in the East Fork
of the Owyhee River and all claims to injury relating
to that water; and</DELETED>
<DELETED> (B) all claims against the State, any
agency or political subdivision of the State, or any
person, entity, or corporation relating to injury to a
right of the Tribe under any Executive order entered on
behalf of the Tribes, to the extent that the injury--
</DELETED>
<DELETED> (i) resulted from a flow
modification or a reduction in the quantity of
water available; and</DELETED>
<DELETED> (ii) accrued on or before the
effective date of the Agreement.</DELETED>
<DELETED> (2) Enforcement of waivers.--A waiver of a claim
under this subsection by the Tribes, or the United States on
behalf of the Tribes, shall be enforceable in the appropriate
forum.</DELETED>
<DELETED> (3) Effective date.--A waiver by the Tribes, or
the United States on behalf of the Tribes, of a claim under
this subsection shall take effect on the date on which the
Secretary publishes in the Federal Register a statement of
findings that includes a finding that--</DELETED>
<DELETED> (A) all parties to the Agreement have
executed the Agreement;</DELETED>
<DELETED> (B) a decree acceptable to each party to
the Agreement has been entered by the Fourth Judicial
District Court, Elko County, Nevada; and</DELETED>
<DELETED> (C) the Agreement has been ratified under
section 5(a).</DELETED>
<DELETED> (b) Waiver and Release of Claims Against the United
States.--</DELETED>
<DELETED> (1) In general.--In consideration of performance
by the United States of all actions required by the Agreement
and this Act, including the authorization of appropriations
under subsections (b)(3) and (c)(3) of section 7, the Tribe
shall execute a waiver and release of any claim against the
United States for--</DELETED>
<DELETED> (A) a water right in the East Fork of the
Owyhee River;</DELETED>
<DELETED> (B) an injury to a right described in
subparagraph (A);</DELETED>
<DELETED> (C) breach of trust--</DELETED>
<DELETED> (i) for failure to protect,
acquire, or develop a water right that accrued
on or before the effective date of a waiver
under this subsection; or</DELETED>
<DELETED> (ii) arising out of the
negotiation or adoption of the Agreement;
or</DELETED>
<DELETED> (D) a fishing right under any Executive
order, to the extent that an injury to such a right--
</DELETED>
<DELETED> (i) resulted from a reduction in
the quantity of water available in the East
Fork of the Owyhee River; and</DELETED>
<DELETED> (ii) accrued on or before the
effective date of a waiver under this
subsection.</DELETED>
<DELETED> (2) Effective date.--</DELETED>
<DELETED> (A) In general.--The waiver under
paragraph (1) takes effect on the date on which the
amounts authorized to be appropriated under subsections
(b)(3) and (c)(3) of section 7 are distributed to the
Tribes.</DELETED>
<DELETED> (B) Tolling of claims.--</DELETED>
<DELETED> (i) In general.--Each applicable
period of limitation and time-based equitable
defense relating to a claim described in
paragraph (1) 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 7 are distributed
to the Tribes.</DELETED>
<DELETED> (ii) 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.</DELETED>
<DELETED> (c) Retention of Rights.--</DELETED>
<DELETED> (1) In general.--The Tribes shall retain all
rights not waived by the Tribes, or the United States on behalf
of the Tribes, in the Agreement or this Act.</DELETED>
<DELETED> (2) Claims outside reservation.--Nothing in the
Agreement or this Act shall be considered to be a waiver by the
Tribes of any claim to a right on land outside the Duck Valley
Indian Reservation.</DELETED>
<DELETED> (3) Future acquisition of water rights.--Nothing
in the Agreement or this Act precludes the Tribes, or the
United States as trustee for the Tribes, from acquiring a water
right in the State to the same extent as any other entity in
the State, in accordance with State law.</DELETED>
<DELETED>SEC. 9. MISCELLANEOUS.</DELETED>
<DELETED> (a) General Disclaimer.--The parties to the Agreement
expressly reserve all rights not specifically granted, recognized, or
relinquished by--</DELETED>
<DELETED> (1) the settlement described in the Agreement;
or</DELETED>
<DELETED> (2) this Act.</DELETED>
<DELETED> (b) Limitation of Claims and Rights.--Nothing in this
Act--</DELETED>
<DELETED> (1) establishes a standard for quantifying--
</DELETED>
<DELETED> (A) a Federal reserved water
right;</DELETED>
<DELETED> (B) an aboriginal claim; or</DELETED>
<DELETED> (C) any other water right claim of an
Indian tribe in a judicial or administrative
proceeding; or</DELETED>
<DELETED> (2) limits the right of a party to the Agreement
to litigate any issue not resolved by the Agreement or this
Act.</DELETED>
<DELETED> (c) Admission Against Interest.--Nothing in this Act shall
be considered to be an admission against interest by a party in any
legal proceeding.</DELETED>
<DELETED> (d) Duck Valley Reservation.--The Duck Valley Indian
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
shall be--</DELETED>
<DELETED> (1) considered to be the property of the Tribes;
and</DELETED>
<DELETED> (2) permanently held in trust by the United States
for the sole use and benefit of the Tribes.</DELETED>
<DELETED> (e) Jurisdiction.--</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (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.</DELETED>
<DELETED> (3) Consent to jurisdiction.--The United States
consents to jurisdiction in a proper forum for purposes of
enforcing the provisions of the Agreement.</DELETED>
<DELETED> (4) Effect of subsection.--Nothing in this
subsection confers jurisdiction on any State court to--
</DELETED>
<DELETED> (A) enforce Federal environmental laws
relating to the duties of the United States under this
Act; or</DELETED>
<DELETED> (B) conduct judicial review of a Federal
agency action in accordance with this Act.</DELETED>
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 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.--The Tribes shall use amounts in the
Development Fund to rehabilitate and, if the Tribes choose, to
expand the Duck Valley Indian Irrigation Project, or for any of
the following purposes:
(A) To pay or reimburse costs incurred by the
Tribes in acquiring land and water rights.
(B) For purposes of cultural preservation.
(C) To restore or improve fish or wildlife habitat.
(D) For fish or wildlife production, water resource
development, or agricultural development.
(E) For water resource planning and development.
(F) 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.--There is authorized
to be appropriated to the Secretary for deposit in the
Development Fund $9,000,000 for each of fiscal years 2008
through 2012.
(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.--There is authorized
to be appropriated to the Secretary for deposit in the
Maintenance Fund $3,000,000 for each of fiscal years 2008
through 2012.
(d) Availability of Amounts From Fund.--Amounts made available
under subsections (b)(3) and (c)(3) shall be available for expenditure
or withdrawal only after the effective date as set forth in section
9(d).
(e) Administration of Funds.--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).
(f) 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.
(g) No Per Capita Payments.--No amount from the Funds (including
any interest income accruing 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 as
Trustee for Tribes.--The Tribes and the United States on behalf of the
Tribes, are authorized to execute a waiver and release of--
(1) all claims for water rights in, or for waters of, the
East Fork of the Owyhee River that the Tribes, or the United
States as trustee for the Tribes, asserted or could have
asserted in any court proceeding; and
(2) all claims for damages, losses, or injuries to water
rights in the East Fork Owyhee River, including claims of
interference, diversion, or taking of water that the Tribes, or
the United States as trustee for the Tribes, asserted or could
have asserted in any court proceedings.
(b) Waiver and Release of Claims Against the United States.--The
Tribes are authorized to execute a waiver and release of--
(1) all claims against the United States, its agencies, or
employees, for water rights in, or waters of, the East Fork of
the Owyhee River that the United States asserted or could have
asserted in any court proceeding;
(2) all claims for damages, losses, or injuries to water
rights, including claims of interference, diversion, or taking
of water, or claims for failure to protect, acquire, or develop
water or water rights within the East Fork of the Owyhee River,
and claims for fishing rights under any Executive order to the
extent that an injury to such a right resulted from a reduction
in the quantity of water available in the East Fork Owyhee
River; that accrued on or before the effective date specified
in subsection (d), that the Tribes have asserted or could have
asserted against the United States, its agencies, or employees
in any court proceedings; and
(3) all claims arising out of the negotiation and adoption
of the Agreement.
(c) Retention of Rights.--Notwithstanding the waivers and releases
set forth in subsections (a) and (b), the Tribes and their members and
the United States as trustee for the Tribes and their members, shall
retain--
(1) all claims for enforcement of the Agreement, the Final
Consent Decree, or this Act, through such legal and equitable
remedies as may be available in any court of competent
jurisdiction;
(2) all rights to use and protect water rights acquired
pursuant to any state law;
(3) all claims relating to activities affecting the quality
of water;
(4) all rights to land outside the Reservation; and
(5) all rights, remedies, privileges, immunities, and
powers not specifically waived and released under the terms of
the Agreement or 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 Secretary has executed the Agreement as approved by
Congress;
(2) all parties to the Agreement have executed the
Agreement;
(3) 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
(4) 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
December 31, 2015--
(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.
(3) Future acquisition of water rights.--Nothing in the
Agreement or this Act precludes the Tribes, or the United
States as trustee for the Tribes, from acquiring a water right
in a state to the same extent as any other entity in the state,
in accordance with state law.
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; or
(2) 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) enforce Federal environmental laws relating to
the duties of the United States under this Act; or
(B) conduct judicial review of a Federal agency
action.
Calendar No. 872
110th CONGRESS
2d Session
S. 462
[Report No. 110-415]
_______________________________________________________________________
A BILL
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.
_______________________________________________________________________
July 10 (legislative day, July 9), 2008
Reported with an amendment