[House Report 110-815]
[From the U.S. Government Publishing Office]
110th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 110-815
======================================================================
SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY RESERVATION WATER RIGHTS
SETTLEMENT ACT
_______
July 31, 2008.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 5293]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 5293) 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, having
considered the same, report favorably thereon with an amendment
and recommend that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Shoshone-Paiute Tribes of the Duck
Valley Reservation Water Rights Settlement Act''.
SEC. 2. FINDINGS.
Congress finds that--
(1) it is the policy of the United States, in accordance with
the trust responsibility of the United States to Indian tribes,
to promote Indian self-determination and economic self-
sufficiency and to settle Indian water rights claims without
lengthy and costly litigation, if practicable;
(2) quantifying rights to water and development of facilities
needed to use tribal water supplies is essential to the
development of viable Indian reservation economies and the
establishment of a permanent reservation homeland;
(3) uncertainty concerning the extent of the Shoshone-Paiute
Tribes' water rights has resulted in limited access to water
and inadequate financial resources necessary to achieve self-
determination and self-sufficiency;
(4) in 2006, the Tribes, the State of Idaho, the affected
individual water users, and the United States resolved all
tribal claims to water rights in the Snake River Basin
Adjudication through a consent decree entered by the District
Court of the Fifth Judicial District of the State of Idaho,
requiring no further Federal action to quantify the Tribes'
water rights in the State of Idaho;
(5) as of the date of enactment of this Act, proceedings to
determine the extent and nature of the water rights of the
Tribes in the East Fork of the Owyhee River in Nevada are
pending before the Nevada State Engineer;
(6) final resolution of the Tribes' water claims in the East
Fork of the Owyhee River adjudication will--
(A) take many years;
(B) entail great expense;
(C) continue to limit the access of the Tribes to
water, with economic and social consequences;
(D) prolong uncertainty relating to the availability
of water supplies; and
(E) seriously impair long-term economic planning and
development for all parties to the litigation;
(7) after many years of negotiation, the Tribes, the State,
and the upstream water users have entered into a settlement
agreement to resolve permanently all water rights of the Tribes
in the State; and
(8) the Tribes also seek to resolve certain water-related
claims for damages against the United States.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to resolve outstanding issues with respect to the East
Fork of the Owyhee River in the State in such a manner as to
provide important benefits to--
(A) the United States;
(B) the State;
(C) the Tribes; and
(D) the upstream water users;
(2) to achieve a fair, equitable, and final settlement of all
claims of the Tribes, members of the Tribes, and the United
States on behalf of the Tribes and members of Tribes to the
waters of the East Fork of the Owyhee River in the State;
(3) to ratify and provide for the enforcement of the
Agreement among the parties to the litigation;
(4) to resolve the Tribes' water-related claims for damages
against the United States;
(5) to require the Secretary to perform all obligations of
the Secretary under the Agreement and this Act; and
(6) to authorize the actions and appropriations necessary to
meet the obligations of the United States under the Agreement
and this Act.
SEC. 4. DEFINITIONS.
In this Act:
(1) Agreement.--The term ``Agreement'' means the agreement
entitled the ``Agreement to Establish the Relative Water Rights
of the Shoshone-Paiute Tribes of the Duck Valley Reservation
and the Upstream Water Users, East Fork Owyhee River'' and
signed in counterpart between, on, or about September 22, 2006,
and January 15, 2007 (including all attachments to that
Agreement).
(2) Development fund.--The term ``Development Fund'' means
the Shoshone-Paiute Tribes Water Rights Development Fund
established by section 8(b)(1).
(3) East fork of the owyhee river.--The term ``East Fork of
the Owyhee River'' means the portion of the east fork of the
Owyhee River that is located in the State.
(4) Maintenance fund.--The term ``Maintenance Fund'' means
the Shoshone-Paiute Tribes Operation and Maintenance Fund
established by section 8(c)(1).
(5) Reservation.--The term ``Reservation'' means the Duck
Valley Reservation established by the Executive order dated
April 16, 1877, as adjusted pursuant to the Executive order
dated May 4, 1886, and Executive order numbered 1222 and dated
July 1, 1910, for use and occupation by the Western Shoshones
and the Paddy Cap Band of Paiutes.
(6) Secretary.--The term ``Secretary'' means the Secretary of
the Interior.
(7) State.--The term ``State'' means the State of Nevada.
(8) Tribal water rights.--The term ``tribal water rights''
means rights of the Tribes described in the Agreement relating
to water, including groundwater, storage water, and surface
water.
(9) Tribes.--The term ``Tribes'' means the Shoshone-Paiute
Tribes of the Duck Valley Reservation.
(10) Upstream water user.--The term ``upstream water user''
means a non-Federal water user that--
(A) is located upstream from the Reservation on the
East Fork of the Owyhee River; and
(B) is a signatory to the Agreement as a party to the
East Fork of the Owyhee River adjudication.
SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT;
AUTHORIZATION.
(a) In General.--Except as provided in subsection (c) and except to
the extent that the Agreement otherwise conflicts with provisions of
this Act, the Agreement is approved, ratified, and confirmed.
(b) Secretarial Authorization.--The Secretary is authorized and
directed to execute the Agreement as approved by Congress.
(c) Exception for Tribal Water Marketing.--Notwithstanding any
language in the Agreement to the contrary, nothing in this Act
authorizes the Tribes to use or authorize others to use tribal water
rights off the Reservation, other than use for storage at Wild Horse
Reservoir for use on tribal land and for the allocation of 265 acre
feet to Upstream Water Users under the Agreement, or use on tribal land
off the Reservation.
(d) Environmental Compliance.--Execution of the Agreement by the
Secretary under this section shall not constitute major Federal action
under the National Environmental Policy Act (42 U.S.C. 4321 et seq.).
The Secretary shall carry out all environmental compliance required by
Federal law in implementing the Agreement.
(e) Performance of Obligations.--The Secretary and any other head of
a Federal agency obligated under the Agreement shall perform actions
necessary to carry out an obligation under the Agreement in accordance
with this Act.
SEC. 6. TRIBAL WATER RIGHTS.
(a) In General.--Tribal water rights shall be held in trust by the
United States for the benefit of the Tribes.
(b) Administration.--
(1) Enactment of water code.--Not later than 3 years after
the date of enactment of this Act, the Tribes, in accordance
with the provision 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 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 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.
PURPOSE OF THE BILL
The purpose of H.R. 5293 is 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.
BACKGROUND AND NEED FOR LEGISLATION
The Duck Valley Reservation is the homeland of the
Shoshone-Paiute Tribes (Tribes). The Reservation straddles the
Idaho-Nevada border along the East Fork of the Owyhee River, a
tributary to the Snake River. The Reservation was established
by Executive Order on April 16th, 1877, and expanded by
Executive Orders dated May 4, 1886 and July 1, 1910. The
Reservation encompasses approximately 290,000 acres within the
States of Nevada and Idaho.
The Owyhee Project on the main stem of the Owyhee River is
a Bureau of Reclamation Project that irrigates more than
100,000 acres of land in eastern Oregon and western Idaho.
The Tribes' primary source of income is agriculture made
possible by the Duck Valley Indian Irrigation Project, owned by
the Bureau of Indian Affairs (BIA) and operated by the Tribes
under a self-governance compact. The Project's primary water
storage facility, the Wild Horse Reservoir, was originally
built in 1930 and rebuilt in 1960. Despite the rebuilding,
inadequate maintenance has led to an unstable infrastructure,
resulting in an increased federal liability.
The Tribes have asserted claims to their federal reserved
water rights in both Nevada and Idaho state courts. The State
of Idaho sought to resolve these claims by initiating the Snake
River Basin Adjudication (SRBA) in 1987. The United States
filed claims in Idaho's SRBA, and the Tribe's water rights were
resolved by a consent decree entered in the Snake River Basin
Adjudication on December 12, 2006 (the resolution of the
Tribes' Idaho claims does not require Congressional
ratification). The Nevada agreement was reached during a stay
of that state's adjudicative process and requires Congressional
action. H.R. 5293 would ratify the Nevada agreement.
The State of Nevada, and water users in Nevada will provide
the Tribes with 111,476 acre-feet of surface water from the
Owyhee River, storage water in the Wild Horse Reservoir, all
water flows originating from springs and creeks on the
Reservation, and 2,606 acre-feet of ground water, plus
perennial yield. At the same time, the agreement protects the
use of water by irrigators upstream (south) of the Reservation.
COMMITTEE ACTION
H.R. 5293 was introduced on February 7, 2008 by Rep. Dean
Heller (R-NV). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power. On March 13, 2008 the Subcommittee held a
hearing on the bill.
On July 15, 2008, the Subcommittee met to mark up the bill.
Ranking Member Cathy McMorris Rodgers (R-WA) offered an
amendment in the nature of a substitute that clarified the
water rights of upstream users. The amendment was adopted by
unanimous consent and the bill, as amended, was then forwarded
to the Full Committee. On July 16, 2008, the Full Natural
Resources Committee met to consider the bill. H.R. 5293, as
amended, was favorably reported to the House of Representatives
by unanimous consent.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
Section 1 provides that this Act may be cited as the
``Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act.''
Section 2. Findings
Section 2 describes the findings for Congressional action
and recognizes that this bill would seek to resolve tribal
water-related, monetary claims for damages against the United
States.
Section 3. Purposes
Section 3 states the purposes of this Act. Specifically,
the Act will resolve outstanding water rights issues with
respect to the East Fork of the Owyhee River and pending water-
related, tribal claims for damages against the United States.
The bill will also require the Secretary of the Interior
perform all obligations under the Agreement and Act.
Section 4. Definitions
Section 4 provides definitions for the terms used in the
bill.
Section 5. Approval, ratification, and confirmation of agreement
Section 5 ratifies the agreement referred to in the
legislation and known as 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''. This section also authorizes and directs the
Secretary to execute the Agreement as approved by Congress,
including any and all environmental compliance required by
federal law.
Section 6. Tribal water rights
Section 6 states that tribal water rights will be held in
trust by the United States, through the Secretary of the
Interior, for the benefit of the Tribes. The Act requires the
Tribes to enact a tribal water code to administer tribal water
rights, no later than three years after enactment of this bill.
The Secretary will regulate the tribal water rights until the
Tribes enact their water code. The bill provides that the
Tribes' water rights cannot be lost by abandonment, forfeiture,
or nonuse.
Section 7. Duck Valley Indian Irrigation Project
Section 7 states that nothing in this Act will affect the
Federal Duck Valley Indian Irrigation Project. This section
also states that the federal government shall not seek
reimbursement for capital costs incurred in support of the
Project.
Section 8. Development and Maintenance Funds
Subsection (a) authorizes and outlines the creation of the
Shoshone-Paiute Tribes Water Rights Development Fund and the
Shoshone-Paiute Tribes Operation and Maintenance Fund.
Subsection (b) states that the Shoshone-Paiute Tribes'
Water Rights Development Fund will be established within the
Treasury of the United States and administered by the Secretary
of the Interior. The bill authorizes the appropriation of $9
million annually in the Development Fund for five fiscal years
for a total of $45 million. The Tribes must use funds from the
Development Fund for water resource planning and development;
for projects related to rehabilitating or expanding the Duck
Valley Irrigation Project, such as for water resource
development and agricultural development; for cultural
preservation; for restoring or improving fish or wildlife
habitat; and for designing and constructing water supply and
sewer systems for tribal communities.
Subsection (c) provides that the Shoshone-Paiutes'
Operation and Maintenance Fund will be established within the
Treasury of the United States and administered by the Secretary
of the Interior. The bill authorizes the appropriation of $3
million annually, for five fiscal years, for a total of $15
million to this Fund. The tribes must use the Maintenance Fund
to operate and maintain the Duck Valley Indian Irrigation
Project and water-related projects authorized under the Act.
Funds can also be spent to operate, maintain and replace the
water supply and sewer systems for tribal communities. The
bill, as ordered reported by the Committee, does not
specifically allocate any funds to the rehabilitation of the
Duck Valley Irrigation Project and it is unclear if the United
States will be responsible for any future rehabilitation
claims. The Committee expects this to be resolved prior to
floor consideration.
Subsections (d-g) provide that under the Act, the Tribes
can access the funds in two ways: by submitting a tribal
management plan or an expenditure plan. The bill states the
criteria for spending, reporting, and enforcement of both
plans. The Tribes may withdraw all or part of the funds but
must submit a tribal management plan that must be approved by
the Secretary of the Interior. Neither the Secretary of the
Interior nor the Secretary of the Treasury are liable for how
monies withdrawn from the fund are spent or invested. In
addition, the Tribes must submit an expenditure plan that must
be approved by the Secretary for any payment or reimbursement
of costs. The Tribes are required to submit an annual report to
the Secretary that describes all costs. No part of the funds
shall be distributed on a per capita basis to tribal members.
The Committee notes that the Administration and the Tribes
have not come into agreement on the cost of the Settlement. In
testimony on the Senate companion bill, the Administration
asserted that the federal contribution to the settlement should
be $9.3 million, in contrast to the $60 million proposed in the
legislation. In House testimony on the bill, Majel Russell,
Principal Deputy Assistant Secretary of Indian Affairs for the
Department of the Interior, said that the Tribes were offered
almost $40 million from the federal negotiation team as an
unofficial offer. The Administration argues that their internal
guidance requires settlements to contain non-federal cost
sharing ``proportionate to the benefits received by the non-
federal parties,'' and must ``specify that the total cost of a
settlement to all parties should not exceed the value of the
existing claims as calculated by the federal government.''
The Tribes assert that the change in cost was due to a
change in the interpretation and implementation of the Criteria
and Procedures for the Participation of the Federal Government
in Negotiations for the Settlement of Indian Water Rights
Claims (``Criteria''). The Tribes also contend that the
Administration's proposed federal contribution of $9.3 million
only reflects the federal liability, but does not include the
cost of settlement implementation. H.R. 2535 supports the
Tribe's contention that the $60 million reflects both the
federal liability and the cost of implementing the settlement.
Section 9. Tribal waiver of claims
Section 9 outlines the waivers and release of claims by the
Tribes and the United States, acting as trustee, against
parties to the settlement agreement, and a waiver and release
of claims by the Tribes against the United States as stated in
the settlement agreement and other water-related claims for
damages. The waiver of claims against the United States related
to water rights in section 9 is understood to encompass claims
for damages to tribal resources due to loss of water or water
rights, including damages, losses, or injuries to hunting,
gathering, or cultural rights as well as the fishing rights
that are explicitly waived.
Subsection (a) states that the Tribes and the United
States, as trustee, waive all claims to water rights in and
damages, losses or injuries to water in the East Fork of the
Owyhee River that were or could be asserted in court
proceedings.
Subsection (b) describes the Tribes' waiver and release of
claims against the United States. The Tribes' waiver would
release any claims against the United States for a water right
or injury to a water right in the East Fork of the Owyhee
River, for multiple breach of trust claims, and for fishing
rights that resulted from reduced quantity of water in the East
Fork and accrued before the effective date specified in
subsection (d).
Subsection (c) provides for the retention of certain rights
and claims notwithstanding the waivers set forth in Subsections
9(a) and 9(b).
Subsections (d-f) provide that the waivers and release of
claims become effective when the Secretary of the Interior
publishes a statement of findings in the Federal Register.
Should the Secretary fail to publish a statement of findings by
December 31, 2015, the settlement agreement and the Act shall
not take effect and any appropriated funds shall be returned to
the Treasury. These subsections also describe the rights
retained by the Tribes and the United States and the process
for tolling claims.
Section 10. Miscellaneous
Section 10 includes provisions on the limits of claims and
rights not waived in the agreement, the Act, or other ongoing
matters specified in the Act. The section also confirms the
status quo of tribal, state, and federal subject matter
jurisdiction and regulatory authority. The section waives the
United States' immunity from suit to enforce the agreement and
limits State review of federal actions authorized under the
Act.
COMMITTEE OVERSIGHT FINDINGS AND RECOMMENDATIONS
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
CONSTITUTIONAL AUTHORITY STATEMENT
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
COMPLIANCE WITH HOUSE RULE XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is 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.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 5293--Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act
Summary: H.R. 5293 would ratify a water rights agreement
among the Shoshone-Paiute Tribes of the Duck Valley
Reservation, individual water users, and Nevada concerning the
East Fork of the Owyhee River. The bill also would create two
trust funds to settle the tribes' claims against the United
States for compromising tribal water rights and failing to
maintain the Duck Valley Irrigation Project. Under the bill,
amounts in the funds could not be spent until certain
requirements have been met.
Assuming appropriation of the authorized amounts to the
funds, CBO estimates that implementing H.R. 5293 could cost $48
million in 2012. Enacting H.R. 5293 also would increase direct
spending by $6 million in 2012 for interest payments to the
tribe. Enacting the bill would not affect revenues.
The bill would require the Shoshone-Paiute Tribes of the
Duck Valley Indian Reservation to adopt policies governing
tribal water rights. That requirement would be an
intergovernmental mandate as defined in the Unfunded Mandates
Reform Act (UMRA). CBO estimates that the cost of the mandate
would be small and well below the threshold established in UMRA
($68 million in 2008, adjusted annually for inflation).
Furthermore, appropriations resulting from authorizations
contained in the bill could be used to pay for any such costs.
H.R. 5293 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary impact of H.R. 5293 is shown in the following table.
The costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
--------------------------------------------------
2009 2010 2011 2012 2013 2009-2013
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level.......................................... 12 12 12 12 0 48
Estimated Outlays............................................ 0 0 0 48 0 48
CHANGES IN DIRECT SPENDING
Estimated Budget Authority................................... * 1 2 2 0 6
Estimated Outlays............................................ 0 0 0 6 0 6
----------------------------------------------------------------------------------------------------------------
Note.--* = Less than $500,000; amounts may not sum to totals due to rounding.
Basis of estimate: For this estimate, CBO assumes that H.R.
5293 will be enacted near the beginning of fiscal year 2009 and
that the entire amounts authorized will be appropriated for
each fiscal year. In the fall of 2006, the Shoshone-Paiute
Tribes of the Duck Valley Indian Reservation, the state of
Nevada, and several individual water users signed an agreement
to settle a water rights dispute concerning the East Fork of
the Owyhee River. Currently, the United States is not a party
to this agreement. However, enactment of H.R. 5293 would
approve and ratify the agreement and authorize the Secretary of
the Interior to execute the settlement and other
responsibilities under the bill. CBO assumes that, by fiscal
year 2012, all parties will have executed the components of the
agreement as specified under the bill.
Changes in spending subject to appropriation
H.R. 5293 would authorize the appropriation of $12 million
a year over the 2009-2012 period, for two trust funds for the
Shoshone-Paiute Tribes as part of the water rights settlement.
Of that amount, $9 million a year would be authorized to be
appropriated for the Shoshone PaiuteTribes Water Rights
Development Fund for costs to rehabilitate the Duck Valley Irrigation
Project; acquire land and water rights; restore fish and wildlife
habitat; develop water laws; and build sewer systems and other water-
related projects. Another $3 million a year over the same time period
would be authorized to be appropriated for the Shoshone-Paiute Tribes
Water Rights Operation and Maintenance Fund for similar activities.
Several conditions would have to be met to transfer control
of the new trust funds to the tribes. The Secretary of the
Interior would have to publish a statement of findings in the
Federal Register indicating that all parties have executed the
agreement, the Fourth Judicial District in Nevada would have to
issue a judgment and final decree concerning the settlement,
and the amounts authorized under the bill for fiscal years 2009
through 2012 would have to be appropriated. Because those
conditions would not be met until the appropriations are made
for 2012, deposits in the funds during the first three years
would be considered intragovernmental and would have no net
effect on the federal budget.
When the conditions for final settlement have been met in
2012, control over the use of the trust funds would be
transferred to the tribe and the budget would record an
expenditure of $48 million in that year. Subsequent use of the
funds would have no effect on the federal budget. Should the
Secretary not publish a statement of findings by December 31,
2015, the agreement would not take effect and any funds
appropriated would be returned to the general fund of the
Treasury.
Changes in direct spending
The Secretary of the Interior would be required to invest
the amounts appropriated to the trust funds until those funds
are expended. CBO estimates that interest earnings over the
2009-2012 period would total $6 million and would be recorded
as a federal outlay in 2012. Such outlays would be direct
spending. Subsequently, the funds would be considered
nonbudgetary, and any future interest payments would not be
considered part of the federal budget. Should the Secretary not
publish a statement of findings by December 31, 2015, the
agreement would not take effect, and any interest payments
would not be made.
Estimated impact on state, local, and tribal governments:
H.R. 5293 would require the tribes to adopt water policies that
would govern tribal water rights as detailed in the agreement.
That requirement would be an intergovermental mandate as
defined in UMRA because it would place a statutary requirement
on the tribe that is separate from provisions of the agreement.
CBO estimates that the cost of the mandate would be small and
well below the threshold established in UMRA ($68 million in
2008, adjusted annually for inflation). Furthermore,
appropriations resulting from authorizations for the
development fund could be used to pay for any such costs.
Estimated impact on the private sector: H.R. 5293 contains
no private-sector mandates as defined in UMRA.
Previous CBO estimate: On August 8, 2007, CBO trasmitted a
cost estimate for S. 462, the Shoshone-Paiute Tribes of the
Duck Valley Reservation Water Rights Settlement Act, as ordered
reported by the Senate Committee on Indian Affairs on July 19,
2007. Although the bills are very similar, our estimates of
costs are different. Our estimate of discretionary spending
under H.R. 5293 is lower because we now assume a later
enactment date for the legislation. Also, CBO now considers
that tribal interest payments under both pieces of legislation
would increase direct spending rather than discretionary
spending (as we estimated under S. 462). Those interest
payments under H.R. 5293 would increase direct spending by $6
million. That estimate applies to S. 462 as well.
Estimate prepared by: Federal costs: Leigh Angres; Impact
on State, Local, and Tribal Governments: Melissa Merrell; and
Impact on the Private Sector: Amy Petz.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
COMPLIANCE WITH PUBLIC LAW 104-4
This bill contains no unfunded mandates.
EARMARK STATEMENT
H.R. 5293 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
PREEMPTION OF STATE, LOCAL OR TRIBAL LAW
This bill is not intended to preempt any State, local or
tribal law.
CHANGES IN EXISTING LAW
If enacted, this bill would make no changes in existing
law.