[Senate Report 106-513]
[From the U.S. Government Publishing Office]
106th Congress Report
SENATE
2d Session 106-513
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AMENDING THE COLORADO UTE INDIAN WATER RIGHTS SETTLEMENT ACT OF 1988 TO
PROVIDE FOR A FINAL SETTLEMENT OF THE CLAIMS OF THE COLORADO UTE
INDIAN TRIBES, AND FOR OTHER PURPOSES
_______
December 15 (legislative day, September 22), 2000.--Ordered to be
printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 2508]
The Committee on Indian Affairs to which was referred the
bill (S. 2508) amending the Colorado Ute Indian Water Rights
Settlement Act of 1988 to provide for a final settlement of the
claims of the Colorado Ute Indian Tribes, and for other
purposes, having considered the same, reports favorably thereon
without amendment and recommends that the bill do pass.
Purpose
The purpose of S. 2508 is to make amendments to the
Colorado Ute Indian Water Rights Settlement Act, P.L. 100-585,
to fulfill the Federal government's obligation to the Southern
Ute and Ute Mountain Ute Indian tribes in the manner
contemplated by the recently completed Animas La Plata Project
Final Supplemental Impact Statement, July, 2000 and the
Department of Interior's Record of Decision, September 25,
2000.
Background
Through successive 19th century treaties, the Federal
government guaranteed a permanent tribal homeland for the Ute
Indians. By the 1880's, the various bands of the Ute Indians
had been settled on three reservations, one in Utah and two in
Colorado. In the mid-1970's, the Federal government filed as a
reserved water right claim on behalf of the Ute Mountain Ute
and Southern Ute Indian Tribes of Colorado (Ute tribes). The
principle of reserved water rights was first articulated in the
Supreme Court's decision in Winters v. United States, 207 U.S.
564 (1908). These ``Winters'' rights have the same priority as
the date the reservation is established. Because a number of
significant rivers and streams run through the Southern Ute and
Ute Mountain Ute Indian reservations, such rights would be
senior to a large number of existing water rights. The prospect
of such senior rights would threaten existing water uses in
three ways. First, even as inchoate and unquantified claims
they would place a cloud on all water rights established since
at least as far back as the 1868 Ute Treaty. Second, as the
tribal reserved rights claims are being adjudicated they would
cloud other water rights. Finally, the quantified water rights
would threaten existing rights and uses, even if the Ute tribes
were unable or unwilling to begin using the water associated
with their reserved water rights. The economic impact and
social dislocation associated with this reallocation prompted
all of the interested parties to try to reach a negotiated
settlement of the tribal water rights claims.
In 1988, through the Colorado Ute Indian Water Rights
Settlement Act, P.L. 100-585 (Settlement Act), Congress
ratified the Colorado Ute Indian Water Rights Settlement
Agreement of December 10, 1986 (Settlement Agreement). Under
the terms of the Settlement Act, the Ute tribes were guaranteed
a water supply to satisfy the tribe's municipal, industrial,
and agricultural water needs. Like a number of other Indian
water rights settlements, the parties relied on newly developed
water supplies to satisfy tribal water rights claims. Such
undeveloped water is available from the facilities authorized
by the Colorado River Basin Project Act of 1968 (P.L. 90-537),
which authorized the Animas-La Plata Project (ALP or Project)
as a participating project under the Colorado River Storage Act
of 1956, Act of April 11, 1956, 70 Stat. 105.
Under the terms of the Settlement Agreement, the United
States must supply specified quantities of water to each of the
Ute tribes at the specified locations. If water is not supplied
by January 1, 2000, the Ute tribes may elect to return to court
and litigate their reserved water right claims. This right to
return to court lapses on January 1, 2005. Each of the parties
have different reasons for supporting a deadline. A deadline
ensures that the Ute tribes will not wait indefinitely for the
completion of the Project. It also ensures that existing water
users can look forward to the elimination of senior tribal
reserved water rights claims.
Construction of the ALP, however, has been delayed by a
number of factors, mostly related to Federal environmental
laws. The Animas River is a part of the San Juan River
watershed, which is a tributary of the Colorado River. Although
the proposed project would divert water from the Animas River,
concerns were expressed about the effect of these diversions on
the San Juan River. Pursuant to the Endangered Species Act, 16
U.S.C. 1531 et seq. (ESA), in 1990, the U.S. Fish and Wildlife
Service (Service) issued a draft Biological Opinion indicating
that under certain circumstances, diversion from the San Juan
watershed might jeopardize downstream listed species. After
consultation between various agencies over ``reasonable and
prudent alternatives,'' the Service incorporated the proposed
alternative into a final Biological Opinion. This 1991
alternative limited construction of the ALP to certain
facilities, restricted annual water depletions, and provided
for a seven year study of river flows and their effect on
recovery efforts for listed species. The alternative provided
for construction of the diversion works and off-stream
reservoir, but prevented further construction of ALP components
until the study was completed.
In 1992 a lawsuit was filed to prevent construction of any
part of the ALP. This suit raised claims under several
statutes, including the ESA, but not with respect to the
Pikeminnow (formerly referred to as the ``Squawfish''.) Those
parts of the suit based on the ESA were dismissed as premature.
However another part of the suit asserted that the 1980
environmental impact statement was inadequate because it did
not address new circumstances, including changes in the
Project. In response to this claim the United States began
preparing a Supplemental Environmental Impact Statement, which
was completed in 1996. As outlined in the Supplemental EIS, the
A-LP would be devised into two phases and each of these would
be divided into two stages. The initial stage of Phase I would
include the following project features: Durango Pumping Plant,
Ridges Basin Inlet Conduit, Dam, and Reservoir, Durango,
Shenandoah, and La Plata Rural M&I Pipelines. These components
would be constructed to accommodate increased water deliveries
from other project features. With respect to the remaining
project features, the Supplemental EIS included the following:
``Based on the * * * 7-year research study of endangered fish
in the San Juan River, the size of the dam and reservoir would
be determined and the dam and pumping plants could be sized
accordingly.'' 1996 Final Supplemental EIS, S-4.
Despite this thorough environmental review, opposition to
the project continued. In an effort to provide a process for
resolving the conflict between the A-LP's opponents and
proponents, the State of Colorado sponsored an effort to
mediate between the two sides. Unfortunately, a consensus was
not possible. The Ute tribes were amenable to negotiations over
the quantity of water to be stored on their behalf. Through
successive tribal elections, however, both Ute tribes remained
steadfast in their view that they would not agree to any
settlement that did not provide them with a stored water
supply. Opponent of the ALP were strident in their view that
they would only support an approach that did not include the
construction of any part of the ALP. According to the tribes,
there were at least three strong arguments to support their
position that negotiations should be premised on the
construction of at least some of the ALP. First, since 1988,
Federal law explicitly assured them a newly developed water
supply. Second, successive environmental studies demonstrated
that such a project can be constructed on the Animas River in a
manner consistent with applicable laws. Third, Federal policy
encourages Indian tribes to exercise self-determination with
respect to their natural resources.\1\
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\1\ See, e.g, Arizona v. California, 460 U.S. 605, 615 (rejecting
an attempt to prevent tribal intervention in a general stream
adjudication where the tribes were already represented by the United
States.)
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Experience teaches that Indian tribes are due a significant
amount of deference when deciding how to resolve conflicts over
their natural resources. Tribal governments are often in the
best position to weigh the tangible and intangible factors that
make various options more or less risky.\2\ For example, both
Ute tribes have serious concerns about the uncertainty inherent
in proposals to exchange their reserved rights claims for
financial resources to acquire additional water rights. The
Animas-La Plata Project, Final Supplemental Environmental
Impact Statement (July 2000) (hereinafter July 2000 Final EIS)
describes many of the technical limitations that are inherent
in the acquisition option. In addition, the tribes are
concerned about the short and long term effects of this
approach will have on neighboring individuals and governments.
Unlike the advocates of such acquisition-oriented proposals,
Indian tribes do not have the luxury of analyzing this
alternative in a vacuum. The actual implementation of a long-
term program of acquiring land and water rights could easily
embroil the tribes in equally protracted disputes with local
governments and private parties over questions of taxation,
jurisdiction, and regulatory control over such resources. Also,
the Tribes would be required to apply to the State of Colorado
for permission to transfer any water rights to new uses.
Ironically, the proponents of the acquisition program would be
free to oppose any tribal application to change the type,
manner or place of use; leaving the tribe with the legal right
to water, but no effective control over its use. In light of
these considerations, the Committee is not surprised by the
tribal opposition to the proposals that rely solely on water
acquisition and reallocation.
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\2\ For the same reason, the Committee notes the support for the
bill from both the Navajo Nation and the Jiracilla Indian Tribe. Both
tribes recognize that their own interests are served by a legislative
proposal that fully finally, and fairly resolves the Ute tribal water
rights claims.
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Negotiations with the ALP opponents also faltered because
of disagreements on how to account for the non-tribal
participation in the project. Because the original ALP included
Indian and non-Indian beneficiaries, the Ute tribes refused to
support any proposal to construct facilities that would only
develop a tribal water supply. The Tribes argued that the
Colorado River Storage Project Act assured non-Indians in the
region a comprehensive, multi-purpose reclamation project. The
tribes could see no reason why non-tribal project beneficiaries
would agree to a settlement of tribal water rights that de-
authorized the project and offered no reciprocal benefits to
non-tribal project beneficiaries. The project opponents refused
to see the project in this manner. Because the project
opponents insisted on some form of project de-authorization,
the Tribes knew that the project must include enough benefits
to secure non-Indian support. By contrast, the project opponent
seemed to expect the non-Indians simply allow the use of the
settlement to upset non-Indian expectations. This expectation
was especially unrealistic because the non-Indian beneficiaries
include the State of Colorado.
Nevertheless, the Ute tribes and the other project
beneficiaries faced the prospect that compliance with Federal
environmental policies might prolong the completion of the
components needed to fulfill the Federal obligation under the
Settlement Act. The first deadline was rapidly approaching
because the United States had not fulfilled its obligations
under the 1988 Settlement Act, on January 1, 2000, the Ute
tribes could return to court to assert their reserved water
rights claims. The Tribes have until January 1, 2005 to assert
these claims.
During the 105th Congress, Chairman Ben Nighthorse Campbell
introduced S. 1771. At a June 28, 1988 hearing, the
Administration acknowledged that the bill called for a ``scaled
down'' version of the facilities needed to fulfill the Federal
government's responsibility to the Tribes. However, the
Commissioner of the Bureau of Reclamation testified in ``strong
opposition'' to the bill. This position left the administration
without a proposal for how to comply with the 1988 Settlement
Act and without an approach for settling the tribal claims. The
Administration appeared to be uncomfortable with its inability
to comply with either the 1988 Settlement Act or the Federal
government's trust responsibility to Ute tribes.
In the face of repeated Congressional and tribal concerns,
the Department commenced an effort to develop an approach for
developing and resolving this untenable situation. In August
1998, the Administration presented its proposal for fulfilling
the Federal government's obligations to the Ute tribes. On
January 4, 1999, the Department announced its intent to prepare
a supplemental environmental impact statement to evaluate the
impacts and alternatives to this ``Administration Proposal.''
64 Fed. Reg. 176 (January 4, 1999). According to the Federal
Register notice: ``At the heart of the proposal is a modified
ALP which is limited to a smaller dam and reservoir designed to
supply municipal and industrial water to the Colorado Ute
Tribes, Navajo Nation, and non-Indian entities in the local
area.'' The process employed by the Department in completing
the environmental review of the Administration Proposal
provides the Committee and the Congress with a comprehensive
analysis of the impacts and alternatives to the Administration
Proposal. Because of the extensive public involvement in the
process, each of the alternatives and refinements has also
under gone an extra-ordinary level of scrutiny and commentary,
which greatly assisted the Committee in its consideration of
how it should proceed. Indeed, Section 404(r) of the Clean
Water Act, P.L. 92-500, as amended, requires the submission of
the analysis under section 404(b)(1) to Congress. The
Department's environmental analysis was especially helpful
because it recognized the unique circumstances present in this
case, where the Department is seeking to fulfill its trust
responsibility to the Colorado Ute tribes by carrying out the
mandate of the 1998 Settlement Act in a manner consistent with
Federal law, especially Federal environmental laws.
Summary of the Amendment in the Nature of a Substitute
Section 1. Short title
Subsection (a) cites the short title of the bill as the
Colorado Ute Settlement Act Amendments of 2000.''
Subsection (b) provides several Findings. Most of the
Findings address the need to amend the 1988 Settlement Act in
light of existing circumstances, without disturbing the
benefits of the historic Settlement Agreement. As Findings 2
and 3 explain, 1988 Settlement Act settled the Colorado Ute
water rights claims without reallocating water from existing
users, while providing the tribes with a firm water supply,
including water for irrigation purposes. At the present time,
however, it is impractical to assume that the ALP will include
the irrigation component contemplated in 1988. The United
States cannot fulfill its obligations under the Settlement Act
unless it provides irrigation water and other benefits to the
Ute tribes within the time-frames established by the Act.
However, the environmental review process reveals that the
United States can provide comparable benefits to the Tribes by
constructing those parts of the ALP needed to provide municipal
water supplies, waiving a tribal repayment obligation for this
water supply, and providing resources to the Ute tribes.
The Findings also point out that the Federal courts have
considered the nature and extent of Congressional involvement
with a project when reviewing Federal compliance with the
National Environmental Policy Act. This is not to say that
Congress has a formal role in the NEPA process or that courts
are under any obligation to take Congressional involvement into
account. Although this Finding does not compel any entity to
take Congressional deliberations into account, it would not be
unprecedented for this to occur.
Subsection (c) provides five definitions used in S. 2508.
Section 2. Amendments to section 6 of the Colorado Ute Indian Water
Rights Settlement Act of 1988
As described in the Findings, the S. 2508 seeks to provide
the Ute tribes with comparable benefits to those provided under
the 1988 Settlement Act. Under S. 2508 as reported by the
Committee, however, the Ute tribes will no longer receive an
irrigation water supply component under favorable repayment
terms. In order to provide comparable benefits, S. 2508 amends
subsection 6(a) of the Settlement Act to eliminate the tribal
repayment obligation for municipal water supplied by the ALP.
Also, neither of the Ute Tribes are responsible for the annual
operation, maintenance, and replacement cost applicable to any
increment of their water supply until that increment is used by
the tribe or pursuant to a contract with the tribe.
The 1988 Settlement Act was premised on the imminent
completion of most of the authorized components of the ALP. The
recent environmental review of the ALP calls this assumption
into question and provides a more reliable indication of which
ALP components are likely to actually be constructed. The
reconfigured settlement relies on these components for
satisfying the Federal government's obligation to the Ute
tribes. Hewing very closely to the Final EIS and the Record of
Decision, the Committee amendment specifies that tribal water
rights claims are to be satisfied with only ``a reservoir, a
pumping plant, a reservoir inlet conduit, and appurtenant
facilities with sufficient capacity to divert and store water
from the Animas River to provide for an average annual
depletion of 57,100 acre-feet of water * * *.'' Most of the
developed water supply from these facilities are allocated to
the Ate tribes.
This proposed change to the 1988 Settlement Act also
addresses two collateral concerns affecting the use of the ALP
to settle tribal water rights claims. First, based on the
breadth and depth of the environmental review of the project,
there is no reason to place any limit on the application of
Federal environmental statutes. Therefore, [section] 6(a)(1)(B)
of the Settlement Act, as amended by S. 2508 provides:
``Nothing in this Act shall be construed to predetermined or
otherwise affect the outcome of any analysis conducted by the
Secretary or any other Federal official under applicable
laws.''
Second, the proposed changes resolve apparent concern over
how completing those parts of the project needed to settle the
tribal water rights will affect or prevent a decision on how or
whether to complete other parts of the project. It would be
quite unfortunate for the Ute tribes, the United States, and
other interested parties if this distraction was allowed to
prevent the consummation of a freely negotiated Indian water
rights settlement. The committee amendment resolves this issue
because it requires further, express authorization from
Congress before additional ALP components may be constructed.
The project proponents understandably insist that this
provision will not take effect until and unless the
construction and operation of the facilities described above.
Some of the testimony proffered to the Committee argued in
favor of making this ``de-authorization'' provision effective
immediately, whether or not any facilities are actually
constructed. Both Ute tribes expressed concern about such a
change in the delicate balance achieved by this provision. As
the Tribes point out, this provision allows those opposed to
construction of the entire project to support those elements
needed to satisfy tribal water rights claims without alienating
the support of either the State of Colorado or those who wish
to leave open the option of constructing the larger project.
The proponents of a larger project have certainly made an
important concession by agreeing to condition any further
project construction on additional legislation. A number of
essential parties to this settlement indicate that requiring
any additional concessions in this regard will cause them to
rethink and very possibly withdraw their support for the
settlement. In addition, such a change would entangle this
settlement agreement in complex interstate negotiations that
may require years or even decades to complete.
This section also provides for an up-front repayment of the
non-Indian municipal and industrial capital repayment
obligation. This section also points out that Federal law does
not provide a basis for allocating costs related to ALP
irrigation components to the municipal and industrial water
uses or to Colorado River Storage Project power customers.
Allocating such costs would require an explicit change to
Federal law. As the July 2000 EIS recognizes, in the absence of
such a change in the law, those ``sunk costs'' that are
attributed to project features that are not part of the
Department's Preferred Alternative are non-reimbursable.
Section 3. Compliance with the National Environmental Policy Act of
1969
This section is not drafted to establish a binding
determination concerning Federal compliance with NEPA. To the
extent that Congressional deliberations and determinations
about the options and benefits under consideration, there is an
obvious value in memorializing these efforts and conclusions in
as clear and articulated a fashion as possible.3 The
continuing Congressional effort to settle tribal water rights
claims and address regional water quality needs within the area
to be served by the ALP demonstrates Federal efforts to
accomplish the ``hard look'' called for by NEPA. As approved by
the Committee this section does not call upon any other branch
of the Federal government to take any action. To the extent is
addressed to any part of the government, it only provides the
Executive Branch with the option of proffering potentially-
relevant information concerning Congresses part in these
efforts.
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\3\ For example, in Environmental Defense Fund v. Hoffman, 566 F.2d
1060 (8th Cir. 1977), the 8th Circuit Court of Appeals made the
following finding: ``There is nothing in the legislative history to
suggest that Congress made a binding determination on the adequacy of
the EIS and its compliance with NEPA.'' Nevertheless, the court found
that Congressional consideration of the adequacy of the mitigation plan
was relevant, in fact dispositive: ``We note moreover that in light of
the mitigation plan and the extraordinary executive and congressional
review process, it would be singularly inappropriate for this Court to
substitute its judgment for that of Congress as to the impact of the
project on migratory waterfowl and the adequacy of the mitigation
plan.'' (emphasis supplied).
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Section 4. Compliance with the Endangered Species Act of 1973
This section is modeled after Section 3. Like Section 3,
this section does not compel any action or decision by any
other branch of the Federal government. Under Section 4, the
Executive Branch has the option of providing information
concerning Congressional deliberations and decisions. This
provision would only be applicable if the ALP is allowed to
diver at least 57,100 af/y in a manner consistent with the ESA.
Section 5. Miscellaneous
This section adds 5 new sections to the 1988 Settlement
Act.
Section 15. New Mexico and Navajo Water Matters.--This new
section of the Settlement Act authorizes the Secretary to
assign some or all of the Department's interest in a water
permit. The assignment of the Department's interest in New
Mexico State Engineer Permit Number 2883 back to the New Mexico
Interstate Stream Commission or the New Mexico ALP
beneficiaries is necessary to put the State of New Mexico and
its citizens on an equal footing with their Colorado neighbors,
who directly hold their permits for water from the ALP. Because
the Navajo Nation may not choose to hold its interest in the
ALP directly, so the provision allows for only part of the
Department's interest to be assigned. The Committee anticipates
that the State Engineer may request an assignment back of all
of the permit except for the portion allocated by agreement
among the beneficiaries to the Navajo Nation, which is proper
and necessary to equalize the positions of the two states. The
Committee encourages the Secretary to complete the assignment
expeditiously. This new Section also authorizes the Secretary
to construct a municipal water supply pipeline to convey at
least 4,680 af/y to Shiprock, New Mexico, on the Navajo Indian
Reservation.
Section 16. Tribal Resource Funds.--This section provides
for the establishment of tribal resource development funds for
each of the Ute tribes. These funds will assist the tribes with
their effort to develop their resources. These funds are
especially important because S. 2508 seeks to equalize the
benefits provided under its provisions with those provided
under the 1988 Settlement Act. Consistent with the Department's
EIS, each tribe will receive $20 million to assist with these
efforts. The funds are to be used in a manner consistent with
an economic development plan which must first be approved by
the Secretary.
Section 17. Colorado Ute Settlement Fund.--This fund will
include the appropriations provided for the construction of the
facilities needed to complete construction of the facilities
needed to satisfy the Federal government's obligation to the
Ute tribes.
Section 18. Final Settlement.--This section provides that
the construction of the required facilities and the
appropriation of funds under sections 16 and 17 constitute
final settlement of tribal claims on the Animas and La Plata
Rivers in the State of Colorado. Also, the Attorney General may
file appropriate amendments to ensure that the changes to the
Settlement Act are reflected in the ongoing litigation
concerning the reserved water rights claims filed by the United
States.
Section 19. Statutory Construction, Treatment of Certain
Funds.--This section confirms that the amendments made to the
Settlement Act do not affect is applicability. Also, this
section confirms that the uncommitted portion of the cost-
sharing obligation from the State of Colorado shall be made
available to the State upon its request.
Legislative History
S. 2508 was introduced on May 4, 2000, by Senator Ben
Nighthorse Campbell, and referred to the Committee on Indian
Affairs. Senators Pete Domenici and Wayne Allard were joined as
co-sponsors of the bill. A joint hearing on the bill was held
with the Committee on Energy and Natural Resources'
Subcommittee on Water and Power on June 7, 2000.
Committee Recommendation and Tabulation of Vote
In an open business session on June 14, 2000, the Committee
on Indian Affairs, by a voice vote, adopted the bill and
ordered it reported without amendment. On June 26, 2000, by
unanimous consent agreement, the bill was referred to the
Committee on Energy and Natural Resources, for a period not to
exceed 30 calendar days.
Section-by-Section Analysis of S. 2508 as Reported by the Committee
Section 1. Short title, Findings and Definitions.
Section 2. Amendments to Section 6 of the Colorado Ute
Indian Water Rights Settlement Act of 1988.--Section 2 of the
bill amends Section 6, subsection (a) of the Colorado Ute
Indian Water Rights Settlement Act of 1988, authorizing the
Secretary of the Interior, through the Bureau of Reclamation,
to construct a reservoir and appurtenant facilities for storing
water from the Animas River. This section also specifies the
allocation of water (average annual depletions) to be diverted
from the river into the reservoir, the relevant laws pertaining
to the construction of the reservoir, and limitations on
construction costs.
Section 3. Compliance with the National Environmental
Policy Act of 1969.--Section 3 of the bill outlines how the
reservoir ALP will comply with the National Environmental
Policy Act of 1969.
Section 4 of the bill outlines how the reservoir project
will comply with the Endangered Species Act of 1973.
Section 5 of the bill introduces the new sections (Section
15 to Section 19) to be added to the Colorado Ute Indian Water
Rights Settlement Act of 1988.
Section 15 of the bill authorizes the Secretary to convey
New Mexico State Water Rights Permits to certain individuals or
entities and authorizes the Secretary to construct a facility
to deliver water to parts of the Navajo Nation.
Section 16 of the bill establishes the Southern Ute Tribal
Resource Fund and the Ute Mountain Ute Tribal Resource Fund,
and authorizes appropriations for FY2001 and FY2002 to be
deposited in these funds. This section also provides for
investment of tribal resource funds, except in case the tribes
provide their own investment plans, and calls for each tribe to
submit an economic development plan, for which the Tribal
Resource Fund will be used. This section also places a
limitation on per capita distributions and a limitation on
setting aside the final consent decree.
Section 17 of the bill establishes the Colorado Ute
Settlement Fund, authorizes the appropriation of such funds as
are necessary to complete the reservoir project within six
years of the date of enactment, and specifies how interest
should accrue to this fund.
Section 18 of the bill states that this act constitutes the
final settlement of the tribal claims to the water rights on
the Animas and La Plata Rivers in Colorado. This section also
empowers the Attorney General to file the necessary instruments
to amend the final consent decree.
Section 19 of the bill provides a rule of construction
concerning the effect of these amendments and making the
uncommitted parts of its cost-sharing obligation available to
the State of Colorado.
Cost and Budgetary Consideration
The cost estimate for S. 2508, as calculated by the
Congressional Budget Office, is not presently available. It
will be included as soon as it is provided to the Committee.
Regulatory Impact Statement
Paragraph 11(b) of XXVI of the Standing Rules of the Senate
requires that each report accompanying a bill to evaluate the
regulatory paperwork impact that would be incurred in carrying
out the bill. The Committee believes that S. 2508 will have
only de minimis regulatory or paperwork impact.
Executive Communications
The following letters on S. 2508 were received by the
Committee from the Deputy Secretary of Interior on September
18, 2000.
The Deputy Secretary of the Interior,
Washington, DC, September 18, 2000.
Hon. Ben Nighthorse Campbell,
U.S. Senate,
Washington, DC.
Dear Senator Campbell: I am writing to address two ongoing
concerns that have been raised with respect to S. 2508, the
bill to amend the Colorado Ute Indian Water Rights Settlement
Act of 1988. These concerns appear to question whether the
federal government should remain committed to resolving the
remaining tribal water rights claims through the Settlement. We
think it appropriate and helpful to provide our views on these
matters, as you and your colleagues consider moving S. 2508
towards enactment.
The first issue concerns the validity of the Colorado Ute
Tribes' water rights claims. Some opponents continue to assert
that those rights have never been properly established and that
the settlement violates existing law. These allegations were
first raised during the public scoping meetings associated with
the NEPA analysis conducted on the various alternatives for
final implementation of the settlement. I have attached a copy
of our response. It describes with particularity the senior
water rights of the Southern Ute and Ute Mountain Ute tribes,
as confirmed by Congress, and subsequently by the Colorado
District Court.
The second issue raised is a concern that implementing the
Colorado Ute Settlement may impinge on the water rights of two
downstream tribes, the Navajo Nation and the Jicarilla Apache
Tribe. This concerns also is misplaced. It is the failure to
resolve the ALP matter that would put the downstream tribes'
water rights most at risk. Without a settlement, the Southern
Ute and Ute Mountain Ute tribes would move forward with a large
claim for senior water rights, creating the prospect for a
conflict with the water rights of downstream tribes. A scaled-
back project avoid this conflict. It also avoids the conflict
that a larger project would create with respect to the
downstream tribes' water rights. The ALP settlement also sets
aside a block of water for the Navajo Nation and funds
construction of a Farmington to Shiprock drinking water system
for its benefit. It is not surprising, therefore, that all of
the potentially affected tribes recently have confirmed their
support for implementation of the modified settlement through a
joint letter to the Department. Notwithstanding the concerns
expressed by others on their behalf, the Navajo Nation and the
Jicarilla Apache Tribe can speak for themselves, and they have.
This Administration believes that the implementation of the
Colorado Ute Water Rights Settlement is long overdue. We will
therefore continue to press forward with our efforts to bring
this matter to conclusion. While we are still concerned with
certain aspects of S. 2508, as outlined in our testimony, we
believe that those issues can and should be resolved. We look
forward to working with you toward that end.
Sincerely,
David J. Hayes.
------
Department of the Interior,
Office of the Secretary,
Washington, DC, September 10, 1999.
Mr. Phil Doe,
Chairman, Citizens' Progressive Alliance,
Littleton, CO.
Dear Mr. Doe: This letter is in response to your request
that the Department of the Interior evaluate the validity of
the Southern Ute Tribe's water rights, specifically whether the
Tribe has reserved water rights with an 1868 priority date or
whether such rights were extinguished by the Act of June 15,
1880. Your request was made during the public scoping meetings
associated with the NEPA analysis being conducted on the
Administration proposal and various alternatives for final
implementation of the Colorado Ute Water Rights Settlement.
The Solicitor has evaluated your request and, for the
reasons explained in the attached opinion, finds no
justification to question the Tribe's 1868 priority date for
water rights in the Animas and LaPlata rivers. Since it is the
position of the Department that the Southern Ute and Ute
Mountain Ute Tribes never lost their 1868 reserved water
rights, we will continue to move forward with the ongoing NEPA
analysis.
Sincerely,
David J. Hayes,
Acting Deputy Secretary.
------
Department of the Interior,
Office of the Solicitor,
Washington, DC, September 9, 1999.
Memorandum
To: Acting Deputy Secretary.
From: Solicitor.
Re: Southern Ute Tribe's Water Rights Priority Date.
You have requested that this Office evaluate the validity
of the Southern Ute Tribe's water rights claims, as a result of
issues raised during the NEPA process associated with the
Administration proposal for final implementation of the
Colorado Ute Water Rights Settlement. Specifically, you
requested an analysis of whether the Tribe has reserved water
rights with an 1868 priority date or whether such rights were
extinguished by the Act of June 15, 1880. For the reasons
explained below, we conclude that the Southern Ute Tribe's
water rights have a priority date of 1868.
As a threshold matter, it is important to note that the
Southern Ute Tribe's 1868 priority date was judicially
established through approval of Consent Decrees on December 19,
1991, by Colorado District Court, Water Division 7. Under the
1986 Settlement Agreement, as implemented by Congress through
the 1988 Settlement Act, all tribal water rights claims in the
Animas and LaPlata rivers, including the priority date of those
water rights, were properly before the Court in 1991 and
included in the order of the Court accepting the Consent
Decree. Accordingly, further judicial review on the propriety
of the 1868 priority date is now barred by the doctrine of res
judicata. Danielson v. Vickroy, 627 P.2d 752, 761 (Colo. 1981)
(an issue is res judicata if it was before the court in
proceedings which resulted in a decree.). Thus, even if we were
to find a basis upon which to question the validity of the
Tribe's priority date, which for reasons explained below we do
not, the time to raise this issue has long since passed.
Notwithstanding the jurisdictional bar to raising such an
issue at this time, the Southern Ute Tribe never lost its 1868
priority date. The Tribe's reserved water rights arise from its
1868 Treaty with the United States which established the Ute
Reservation in southwestern Colorado. It is well-settled that
establishment of an Indian reservation carries with it an
implied reservation of the amount of water necessary to fulfill
the purposes of the reservation with a priority date no later
than the date of creation of the reservation. See Winters v.
United States, 207 U.S. 564, 576-77, (1908); see also Arizona
v. California, 373 U.S. 546, 599-601 (1963); United States v.
Winans, 198 U.S. 371 (1905).
No congressional action has done anything to change the
priority date of the Tribe's water rights. Two statues did,
however, substantially affect the Tribe's land ownership. In
1880, Congress passed an act to allot the Southern Ute
reservation. See Act of June 15, 1880, ch. 223, 21 Stat. 199
(1880). Under this Act, all ``surplus'' lands of the
Reservation (lands not allotted) were deemed to be public lands
of the United States, available for entry by non-Indians. Then
in 1934, the Indian Reorganization Act (IRA), 25 U.S.C.
Sec. 463 et seq. (1994), officially ended the allotment era and
authorized the Secretary to restore unclaimed ``surplus'' lands
of any Indian reservation to tribal ownership. Restoration of
the present Southern Ute Reservation occurred on September 14,
1938. See 3 Fed. Reg. 1425 (1938).
The 1880 Act did not extinguish the Tribe's rights in
``surplus'' lands and did nothing to affect the Tribe's water
rights for unclaimed ``surplus'' lands later restored to tribal
ownership under the IRA. Termination of diminution of treaty
rights ``will not be lightly inferred,'' Solem v. Bartlett, 465
U.S. 463, 470 (1984), and requires express legislation or a
clear inference of congressional intent gleaned from
surrounding circumstances and legislative history. Bryan v.
Itasca Cty., 426 U.S. 373, 392-93 (1975). The 1880 Act did not
contain clear congressional intent to change the boundaries of
the Tribe's reservation and did not provide the Tribe with full
compensation for the land ceded, the combination of which might
have indicated that the reservation had been diminished. See
Solem v. Bartlett, 465 U.S. at 469-70. Similarly, the 1880
Act's complete silence on the issue of water rights must be
interpreted as leaving in place, not terminating, these
valuable rights. Although much tribal land did, in fact, become
divested from tribal ownership, the overwhelming majority of
land which now makes up the Southern Ute Indian Reservation was
retained in federal ownership and never conveyed to non-Indian
parties.
Because lands declared ``surplus'' by the 1880 Act could be
sold only under certain conditions, including for the benefit
of the Ute bands, the Tribes retained an interest in the unsold
land. This interest included all property rights not
specifically divested. As the Department has noted previously,
during the time between allotment in 1880 and restoration of
unclaimed lands in 1938, the United States became a ``trustee
in possession'' for the disposal of the ceded land and the
Tribe retained an equitable interest until it received payment
for the land. Restoration to Tribal Ownership--Ute Lands, I
Dep't of Interior, Op. Solicitor 832, 836-37 (1938). The
promise of payment created a trust between the United States
and the Tribe. See Minnesota v. Hitchcock, 185 U.S. 373, 394-95
(1902); Ash Sheep Co. v. United States, 252 U.S. 159, 164-66
(1920).
The decision of the Supreme Court in United States v.
Southern Ute Tribe, 402 U.S. 159 (1971) has been put forth as a
reason why the Southern Ute's water rights were extinguished.
However, this Supreme Court decision is not relevant to the
current inquiry. Southern Ute discussed the res judicata effect
of the Tribe's claims in front of the Indian Claims Commission
(ICC). The ICC claims at issue, however, concerned ``surplus''
lands which had passed into private ownership or were reserved
for other federal purposes, not, as is the case here, unclaimed
lands which were later restored to tribal ownership. Some have
suggested that the Southern Ute decision also affected the
water rights claims of the Ute Mountain Ute Tribe. However, the
western half of the pre-1880 reservation, which is today's Ute
Mountain Ute Reservation, was never allotted. See Southern Ute,
402 U.S. at 171. Neither the 1880 Act nor any subsequent
congressional action affected the Ute Mountain Ute's water
rights which also retain an 1868 treaty date priority.
All cases which have addressed the issue conclude that the
original treaty-date priority to water applies to unclaimed
``surplus'' lands which are restored to tribal ownership. See
United States v. Anderson, 736 F. 2d 1358 (9th Cir. 1984); In
re-Big Horn River System, 753 P. 2d 76 (Wyo. 1988) (Big Horn
I), aff'd without opinion by an equally divided court; and In
re Big Horn River System, 899 P. 2d 848 (Wyo. 1995) (Big Horn
IV). Anderson developed a three-prong test for extinguishment
of a Winters right; namely, there must be: (1) cessation of the
reservation, (2) opening of that land to homesteading, and (3)
conveyance into private ownership. Anderson, 736 F. 2d at 1363.
While the Ninth Circuit held that no Indian reserved water
rights exist ``on those reservation lands which have been
declared public domain, opened to homesteading, and
subsequently conveyed into private ownership,'' id. at 1363
(emphasis added), it left in place the district court's
decision which awarded a treaty-date priority for water rights
to ``lands opened for homesteading which were never claimed.''
Id. at 1361 (emphasis added). In the case of the Utes, the land
restored to the Southern Ute Indian Reservation was never
conveyed into private ownership. Since the land was never
conveyed into private ownership, the 1868 priority date was
never affected.
The Wyoming Supreme Court reached the same conclusion when
it found a treaty-date priority for ``all the reacquired lands
on the ceded portion of the [Wind River] reservation.'' 753 P.
2d at 114 (Big Horn I). Similarly, Big Horn IV held that a
treaty-date priority for reserved water rights extends to
``restored, retroceded, undisposed of, and reacquired lands
owned by the Tribes; fee lands held by Indian allottees; and
lands held by Indian and non-Indian successors to allottees.''
899 P. 2d at 855.
The Department notes that Big Horn IV also held that the
reservation purpose and reserved water rights ``no longer
existed for lands acquired by others after they had been ceded
to the United States for disposition.'' Id. at 854 (emphasis
added). This reasoning, which comports with Anderson's three-
prong test, was used by the Court to conclude that non-Indian
settlers, under the Homestead Act and other land-entry
statutes, did not have a treaty-date priority. This holding,
however, does nothing to alter the fact that lands ceded by the
Southern Ute Tribe, which were opened to settlement but
unclaimed by settlers and later restored to tribal ownership,
retain water rights with a treaty-date priority. Anderson, Big
Horn I, and Big Horn IV stand for the proposition, and the
Department concludes, that the Tribe retains its original 1868
priority date for all restored ``surplus'' lands.
John D. Leshy.
Changes in Existing Law
In compliance with subsection 12 of rule XXXVI of the
Standing Rules of the Senate, the Committee notes the following
changes in existing law (existing law proposed to be omitted is
enclosed in black brackets, new matter printed in italic):
SEC. 6. REPAYMENT OF PROJECT COSTS.
[(a) Municipal and Industrial Water.--
(1) The Secretary shall defer, without interest, the
repayment of the construction costs allocable to each
Tribe's municipal and industrial water allocation from
the Animas-La Plata and Dolores Projects until water is
first used either by the Tribe or pursuant to a water
use contract with the Tribe. Until such water is first
used either by a Tribe or pursuant to a water use
contract with the Tribe, the Secretary shall bear the
annual operation, maintenance, and replacement costs
allocable to the Tribe's municipal and industrial water
allocation from the Animas-La Plata and Dolores
Projects, which costs shall not be reimbursable by the
Tribe.
(2) As an increment of such water is first used by a
Tribe or is first used pursuant to the terms of a water
used contract with the Tribe, repayment of that
increment's pro rata share of such allocable
construction costs shall commence by the Tribe and the
Tribe shall commence bearing that increment's pro rata
share of the allocate annual operation, maintenance,
and replacement costs.]
(a) Reservoir; Municipal and Industrial Water.--
(1) Facilities.--
(A) In General.--After the date of enactment
of this subsection, but prior to January 1,
2005, the Secretary, in order to settle the
outstanding claims of the Tribes on the Animas
and La Plata Rivers, acting through the Bureau
of Reclamation, is specifically authorized to--
(i) complete construction of, and
operate and maintain, a reservoir, a
pumping plant, a reservoir inlet
conduit, and appurtenant facilities
with sufficient capacity to divert and
store water from the Animas River to
provide for an adverse annual depletion
of 57,100 acre-feet of water to be used
for a municipal and industrial water
supply, which facilities shall--
(I) be designed and operated
in accordance with the
hydrologic regime necessary for
the recovery of the endangered
fish of the San Juan River as
determined by the Sam Juan
River Recovery Implementation
Program;
(II) include an inactive pool
of an appropriate size to be
determined by the Secretary
following the completion of
required environmental
compliance activities; and
(III) include those
recreation facilities
determined to be appropriate by
agreement between the State of
Colorado and the Secretary that
shall address the payment of
any of the costs of such
facilities by the State of
Colorado in addition to the
costs described in paragraph
(3); and
(ii) deliver, through the use of the
project components referred to in
clause (i), municipal and industrial
water allocations--
(I) with an average annual
depletion not to exceed 16,525
acre-feet of water, to the
Southern Ute Indian Tribe for
its present and future needs;
(II) with an average annual
depletion not to exceed 16,525
acre-feed of water, to the Ute
Mountain Ute Indian Tribe for
its present and future needs;
(III) with an average annual
depletion not to exceed 2,340
acre-feet of water, to the
Navajo Nation for its present
and future needs;
(IV) with an average annual
depletion not to exceed 10,400
acre-feet of water, to the San
Juan Water Commission for its
present and future needs;
(V) with an average annual
depletion of an amount not to
exceed 2,600, acre-feet of
water, to the Animas-La Plata
Conservancy District for its
present and future needs;
(VI) with an average annual
depletion of an amount not to
exceed 5,230 acre-feet of
water, to the State of Colorado
for its present and future
needs; and
(VII) with an average annual
depletion of an amount not to
exceed 780 acre-feet of water,
to the La Plata Conservancy
District of New Mexico for its
present and future needs.
(B) Applicability of Other Federal Law.--The
responsibilities of the Secretary described in
subparagraph (A) and subject to the
requirements of Federal laws related to the
protection of the environment and otherwise
applicable to the construction of the proposed
facilities, including the National
Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), the Clean Water Act (42 U.S.C.
7401 et seq.), the Clean Water Act (42 U.S.C.
7401 et seq.), and the Endangered Species Act
of 1973 (16 U.S.C. 1531 et seq.). Nothing in
this Act shall be construed to predetermine or
otherwise affect the outcome of any analysis
conducted by the Secretary or any other Federal
official under applicable laws.
(C) Limitation.--
(i) In general.--If constructed, the
facilities described in subparagraph
(A) shall not be used in conjunction
with any other facility authorized as
part of the Animas-La Plata Project
without express authorization from
Congress.
(ii) Contingency in application.--If
the facilities described in
subparagraph (A) are not constructed
and operated, clause (i) shall not take
effect.
(2) Tribal construction costs.--Construction costs
allocable to the facilities that are required to
deliver the municipal and industrial water allocations
described in subclauses (I), (II) and (III) of
paragraph (1)(A)(ii) shall be nonreimbursable to the
United States.
(3) Nontribal water capital obligations.--Under the
provisions of section 9 of the Act of August 4, 1939
(43 U.S.C. 485h), the nontribal municipal and
industrial water capital repayment obligations for the
facilities described in paragraph (1)(A)(i) may be
satisfied upon the payment in full of the nontribal
water capital obligations prior to the initiation of
construction. The amount of the obligations described
in the preceding sentence shall be determined by
agreement between the Secretary of the Interior and the
entity responsible for such repayment as to the
appropriate reimbursable share of the construction
costs allocated to that entity's municipal water
supply. Such agreement shall take into account the fact
that the construction of facilities to provide
irrigation water supplies from the Animas-La Plata
Project is not authorized under paragraph (1)(A)(i) and
no costs associated with the design or development of
such facilities, including costs associated with
environmental compliance, shall be allocable to the
municipal and industrial users of the facilities
authorized under such paragraph.
(4) Tribal water allocations.--
(A) In general.--With respect to municipal
and industrial water allocated to a Tribe from
the Animas-La Plata Project or the Dolores
Project, until that water is first used by a
Tribe or used pursuant to a water use contract
with the Tribe, the Secretary shall pay the
annual operation, maintenance, and replacement
costs allocable to that municipal and
industrial water allocation of the Tribe.
(B) Treatment of costs.--A Tribe shall not be
required to reimburse the Secretary for the
payment of any cost referred to in subparagraph
(A).
(5) Repayment of pro rata share.--Upon a Tribe's
first use of an increment of a municipal and industrial
water allocation described in paragraph (4), or the
Tribe's first use of such water pursuant to the terms
of a water use contract--
(A) repayment of that increment's pro rate
share of those allocable construction costs of
the Dolores Project shall be made by the Tribe;
and
(B) the Tribe shall bear a pro rata share of
the allocable annual operation, maintenance,
and replacement costs of the increment as
referred to in paragraph (4).
* * * * * * *
(i) Compliance With the National Environmental Policy Act
of 1969.--
(1) Authority.--Nothing in this Act shall be
construed to alter, amend, or modify the authority or
discretion of the Secretary or any other Federal
official under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) or any other Federal law.
(2) Determination of congress.--Subject to paragraph
(3), in any defense to a challenge of the Final
Environmental Impact Statement prepared pursuant to the
Notice of Intent to Prepare a Draft Environmental
Impact Statement, as published in the Federal Register
on January 4, 1999 (64 Fed. Reg. 176-179), or the
compliance with the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.) or the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), and in
addition to the Record of Decision and any other
documents or materials submitted in defense of its
decision, the United States may assert in its defense
that Congress, based upon the deliberations and review
described in paragraph (9) of section 1(b) of the
Colorado Ute Settlement Act Amendments of 2000, has
determined that the alternative described in such Final
Statement meets the Federal government's water supply
obligations to the Ute tribes under this Act in a
manner that provides the most benefits to, and has the
least impact on, the quality of the human environment.
(3) Application of provision.--This subsection shall
only apply if Alternative #4, as presented in the Draft
Supplemental Environmental Impact Statement dated
January 14, 2000, or an alternative substantially
similar to Alternative #4, is selected by the
Secretary.
(4) No effect of modification of facilities.--The
application of this section shall not be affected by a
modification of the facilities described in subsection
(a)(1)(A)(i) to address the provisions in the San Juan
River Recovery Implementation Program.
* * * * * * *
(j) Compliance With the Endangered Species Act of 1973.--
(1) Authority.--Nothing in this section shall be
construed to alter, amend, or modify the authority or
discretion of the Secretary or any other Federal
official under the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.) or any other Federal law.
(2) Determination of congress.--Subject to paragraph
(3), in any defense to a challenge of the Biological
Opinion resulting from the Bureau of Reclamation
Biological Assessment, January 14, 2000, or the
compliance with the Endangered Species Act of 1973 (16
U.S.C. 1531 et seq.), and in addition to the Record of
Decision and any other documents or materials submitted
in defense of its decision, the United States may
assert in its defense that Congress, based on the
deliberations and review described in paragraph (9) of
section 1(b) of the Colorado Ute Settlement Act
Amendments of 2000, has determined that constructing
and operating the facilities described in subsection
(a)(1)(A)(i) meets the Federal government's water
supply obligation to the Ute tribes under that Act
without violating the Endangered Species Act of 1973
(16 U.S.C. 1531 et seq.).
(3) Application of provision.--This subsection shall
only apply if the Biological Opinion referred to in
paragraph (2) or any reasonable and prudent alternative
suggested by the Secretary pursuant to section 7 of the
Endangered Species Act of 1973 (16 U.S.C. 1536)
authorizes an average annual depletion of at least
57,100 acre-feet of water.
(4) No effect of modification of facilities.--The
application of this subsection shall not be affected by
a modification of the facilities described in
subsection (a)(1)(A)(i) to address the provisions in
the San Juan River Recovery Implementation Program.
* * * * * * *
SEC. 15. NEW MEXICO AND NAVAJO NATION WATER MATTERS.
(a) Assignment of Water Permit.--Upon the request of the
State Engineer of the State of New Mexico, the Secretary shall,
in a manner consistent with applicable State law, assign,
without consideration, to the New Mexico Animas-La Plata
Project beneficiaries or the New Mexico Interstate Stream
Commission any portion of the Department of the Interior's
interest in New Mexico Engineer Permit Number 2883, dated May
1, 1956, in order to fulfill the New Mexico purposes of the
Animas-La Plata Project, so long as the permit assignment does
not affect the application of the Endangered Species Act of
1973 (16 U.S.C. 1531 et seq.) to the use of the water involved.
(b) Navajo Nation Municipal Pipeline.--The Secretary may
construct a water line to augment the existing system that
conveys the municipal water supplies, in an amount not less
than 4,680 acre-feet per year, of the Navajo Nation to the
Navajo Indian Reservation at Shiprock, New Mexico. The
Secretary shall comply with all applicable environmental laws
with respect to such water line. Construction costs allocated
to the Navajo Nation for such water line shall be
nonreimbursable to the United States.
(c) Protection of Navajo Water Claims.--Nothing in this Act
shall be construed to quantify or otherwise adversely affect
the water rights and the claim of entitlement to water of the
Navajo Nation.
* * * * * * *
SEC. 16. TRIBAL RESOURCE FUNDS.
(a) Establishment.--
(1) Authorization of appropriations.--There is
authorized to be appropriated to carry out this
section, $20,000,000 for fiscal year 2001 and
$20,000,000 for fiscal year 2002. Not later than 60
days after amounts are appropriated and available to
the Secretary for a fiscal year under this paragraph,
the Secretary shall make a payment to each of the
Tribal Resource Funds established under paragraph (2).
Each such payment shall be equal to 50 percent of the
amount appropriated for the fiscal year involved.
(2) Funds.--The Secretary shall establish a--
(A) Southern Ute Tribal Resource Fund; and
(B) Ute Mountain Ute Tribal Resource Fund.
A separate account shall be maintained for each such
Fund.
(b) Adjustment.--To the extent that the amount appropriated
under subsection (a)(1) in any fiscal year is less than the
amount authorized for such fiscal year under such subsection,
the Secretary shall, subject to the availability of
appropriations, pay to each of the Tribal Reserve Funds an
adjustment amount equal to the interest income, as determined
by the Secretary in his or her sole discretion, that would have
been earned on the amount authorized but not appropriated under
such subsection had that amount been placed in the Fund as
required under such subsection.
(c) Tribal Development.--
(1) Investment.--The Secretary shall, in the absence
of an approved tribal investment plan provided for
under paragraph (2), invest the amount in each Tribal
Resource Fund in accordance with the Act entitled, ``An
Act to authorize the deposit and investment of Indian
funds'' approved June 24, 1938 (25 U.S.C. 162a). The
Secretary shall disburse, at the request of a Tribe,
the principal and income in its Resource Fund, or any
part thereof, in accordance with a resource acquisition
and enhancement plan approved under paragraph (3).
(2) Investment plan.--
(A) In General.--In lieu of the investment
provided for in paragraph (1), a Tribe may
submit a tribal investment plan applicable to
all or part of the Tribe's Tribal Resource
Fund.
(B) Approval.--Not later than 60 days after
the date on which an investment plan is
submitted under subparagraph (A), the Secretary
shall approve such investment plan if the
Secretary finds that the plan is reasonable and
sound. If the Secretary does not approve such
investment plan, the Secretary shall set forth
in writing and with particularity the reasons
for such disapproval. If such investment plan
is approved by the Secretary, the Tribal
Resource Fund involved shall be disbursed to
the Tribe to be invested by the Tribe in
accordance with the approved investment plan.
(C) Compliance.--The Secretary may take such
steps as the Secretary determines to be
necessary to monitor the compliance of a Tribe
with an investment plan approved under
subparagraph (B). The United States shall not
be responsible for the review, approval, or
audit of any individual investment under the
plan. The United States shall not be directly
or indirectly liable with respect to any such
investment, including any act or omission of
the Tribe in managing or investing such funds.
(D) Economic development plan.--The principal
and income derived from tribal investments
under an investment plan approved under
subparagraph (B) Shall be subject to the
provisions of this section and shall be
expended only in accordance with an economic
development plan approved under paragraph (3).
(3) Economic development plan.--
(A) In general.--Each Tribe shall submit to
the Secretary a resource acquisition and
enhancement plan for all any portion of its
Tribal Resource Fund.
(B) Approval.--Not later than 60 days after
the date on which a plan is submitted under
subparagraph (A), the Secretary shall approve
such investment plan if the Secretary finds
that the plan is reasonably related to the
protection, acquisition, enhancement, or
development of natural resources for the
benefit of the Tribe and its members. If the
Secretary does not approve such plan, the
Secretary shall, at the time of such
determination, set forth in writing and with
particularity the reasons for such disapproval.
(C) Modification.--Subject to the approval of
the Secretary, each Tribe may modify a plan
approved under subparagraph (B).
(D) Liability.--The United Stats shall not be
directly or indirectly liable for any claim
cause of action arising from the approval of a
plan under this paragraph, or from the use and
expenditure by the Tribe of the principal or
interest of the Funds.
(d) Limitation on Per Capita Distributions.--No part of the
principal contained in the Tribal Resource Fund, or of the
income accruing to such funds, or the revenue from any water
use contract, shall be distributed to any member of either
Tribe on a per capita basis.
(e) Limitation on Setting Aside Final Consent Decree.--
Neither the Tribes nor the United States shall have the right
to set aside the final consent decree solely because the
requirements of subsection (c) are not complied with or
implemented.
* * * * * * *
SEC. 17. COLORADO UTE SETTLEMENT FUND.
(a) Establishment of Fund.--There is hereby established
within the Treasury of the United States a fund to be known as
the ``Colorado Ute Settlement Fund''.
(b) Authorization of Appropriations.--There is authorized
to be appropriated to the Colorado Ute Settlement Fund such
funds as are necessary to complete the construction of the
facilities described in section 6(a)(1)(A) within 6 years of
the date of enactment of this section. Such funds are
authorized to be appropriated for each of the first 5 fiscal
years beginning with the first full fiscal year following the
date of enactment of this section.
(c) Interest.--Amounts appropriated under subsection (b)
shall accrue interest, to be paid on the dates that are 1, 2,
3, 4, and 5 years after the date of enactment of this section,
at a rate to be determined by the Secretary of the Treasury
taking into consideration the average market yield on
outstanding Federal obligations of comparable maturity, except
that no such interest shall be paid during any period where a
binding final court order prevents construction of the
facilities described in section 6(a)(1)(A).
* * * * * * *
SEC. 18. FINAL SETTLEMENT.
(a) In General.--The construction of the facilities
described in section 6(a)(1)(A), the allocation of the water
supply from those facilities to the Tribes as described in that
section, and the provision of funds to the Tribes in accordance
with sections 16 and 17 shall constitute final settlement of
the tribal claims to water rights on the Animas and La Plata
Rivers in the State of Colorado.
(b) Statutory Construction.--Nothing in this section shall
be construed to affect the right of the Tribes to water rights
on the streams and rivers described in the Agreement, other
than the Animas and La Plata Rivers, to receive the amounts of
water dedicated to tribal use under the Agreement, or to
acquire water rights under the laws of the State of Colorado.
(c) Action by the Attorney General.--The Attorney General
shall file with the District Court, Water Division Number 7, of
the State of Colorado, such instruments as may be necessary to
request the court to amend the final consent decree to provide
for the amendments made to this Act under the Colorado Ute
Indian Water Rights Settlement Act Amendments of 2000.
* * * * * * *
SEC. 19. STATUTORY CONSTRUCTION; TREATMENT OF CERTAIN FUNDS.
(a) In General.--Nothing in the amendments made by the
Colorado Ute Settlement Act Amendments of 2000 shall be
construed to affect the applicability of any provision of this
Act.
(b) Treatment of Uncommitted Portion of Cost-Sharing
Obligation.--The uncommitted portion of the cost-sharing
obligation of the State of Colorado referred to in section
6(a)(3) shall be made available, upon the request of the State
of Colorado, to the State of Colorado after the date on which
payment is made of the amount specified in that section.