[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 2608 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 2608

 To approve a mutual settlement of the Water Rights of the Gila River 
Indian Community and the United States, on behalf of the Community and 
  the Allottees, and Phelps Dodge Corporation, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

              October 9 (legislative day, October 2), 1998

  Mr. Kyl (by request) introduced the following bill; which was read 
         twice and referred to the Committee on Indian Affairs

_______________________________________________________________________

                                 A BILL


 
 To approve a mutual settlement of the Water Rights of the Gila River 
Indian Community and the United States, on behalf of the Community and 
  the Allottees, and Phelps Dodge Corporation, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This title may be cited as the ``Gila River Indian Community-Phelps 
Dodge Corporation Water Rights Settlement Act of 1998'' and is herein 
referred to as ``this Act.''

SEC. 2. PURPOSE.

    It is the purpose of this Act--
            (a) to ratify, approve and confirm the Settlement Agreement 
        among the Gila River Indian Community, Phelps Dodge 
        Corporation, and the United States of America;
            (b) to authorize and direct the Secretary of the Interior 
        to execute and perform his duties under the Settlement 
        Agreement and this Act; and
            (c) to authorize and direct the Secretary to perform 
        certain actions which will assist in achieving a settlement of 
        the water rights claims of certain Indian tribes in the Little 
        Colorado River Basin in Arizona.

SEC. 3. DEFINITIONS.

    As used in this Act, the following terms have the following 
meaning:
            (a) ``Allottees'' shall mean the owners of beneficial 
        interests in allotted land within the Gila River Indian 
        Reservation.
            (b) ``Blue Ridge Reservoir'' means that Reservoir in Navajo 
        County, Arizona, owned by Phelps Dodge, as more fully described 
        in the Settlement Agreement.
            (c) ``CAP'' shall mean the Central Arizona Project, a 
        reclamation project constructed by the United States pursuant 
        to the Colorado River Basin Project Act of September 30, 1968, 
        82 Stat. 885, as amended.
            (d) ``CAWCD'' shall mean the Central Arizona Water 
        Conservation District, a political subdivision of the State of 
        Arizona, which has executed a contract to repay to the United 
        States the reimbursable costs of the CAP.
            (e) ``Community'' shall mean the Gila River Indian 
        Community, an Indian community organized under section 16 of 
        the Indian Reorganization Act of June 18, 1934, 48 Stat. 987, 
        duly recognized by the Secretary, and its members.
            (f) ``Community's CAP Contract'' shall mean that contract 
        between the Gila River Indian Community and the United States, 
        dated October 22, 1992, providing for the delivery to the Gila 
        River Indian Community of up to 173,100 acre-feet per annum of 
        CAP water.
            (g) ``Globe Equity No. 59'' shall mean the decree entered 
        June 29, 1935, in that action styled as The United States of 
        America v. Gila Valley Irrigation District, et al., Globe 
        Equity No. 59 in the District Court of the United States in and 
        for the District of Arizona, as amended and supplemented.
            (h) ``Hopi Tribe'' shall mean the federally recognized 
        Indian tribe of that name.
            (i) ``Navajo Nation'' shall mean the federally recognized 
        Indian tribe of that name.
            (j) ``Phelps Dodge'' shall mean Phelps Dodge Corporation, a 
        New York corporation, its subsidiaries, affiliates, 
        predecessors, successors and assigns.
            (k) ``Pueblo of Zuni'' shall mean the federally recognized 
        Indian tribe of that name.
            (l) ``Reservation'' shall mean the Gila River Indian 
        Reservation, as it existed on the Initial Effective Date of the 
        Settlement Agreement, as shown on the map attached to the 
        Settlement Agreement as exhibit ``B'' thereto.
            (m) ``San Juan Southern Paiute Tribe'' shall mean the 
        federally recognized Indian tribe of that name.
            (n) ``Secretary'' shall mean the Secretary of the Interior 
        or his lawful designee.
            (o) ``Settlement Agreement'' shall mean that agreement 
        dated as of May 4, 1998, among Phelps Dodge, the Community and 
        the United States.
            (p) ``SRP'' shall mean the Salt River Project Agricultural 
        Improvement and Power District, a political subdivision of the 
        State of Arizona, and the Salt River Valley Water Users' 
        Association, an Arizona corporation.
            (q) ``United States'' shall mean the United States of 
        America, in its capacity as trustee for the Community and of 
        the Reservation; as trustee for the Allottees and of allotted 
        lands on the Reservation; and, with respect to section 5.2 of 
        the Settlement Agreement, in all other capacities required in 
        order to execute the agreements and other instruments and to 
        take the actions referred to in section 5.2 of the Settlement 
        Agreement, including acting for the part of Defense Plant 
        Corporation.

SEC. 4. APPROVAL OF SETTLEMENT AGREEMENT.

    The Settlement Agreement is ratified, approved and confirmed. The 
Secretary shall execute the Settlement Agreement within sixty days of 
the enactment of this Act and shall perform all of the Secretary's 
duties thereunder as provided herein and in the Settlement Agreement.

SEC. 5. TRANSFER OF RESERVOIRS.

    The Secretary shall take all actions specified in section 5.0 of 
the Settlement Agreement necessary on the Secretary's part to obtain 
title to Blue Ridge Reservoir from Phelps Dodge. The title to Blue 
Ridge Reservoir, once acquired by the Secretary, shall be held by the 
Secretary in trust for the benefit of the Navajo Nation. In connection 
with the Secretary's performance of his obligations under section 5.0 
of the Settlement Agreement, the Navajo Nation, the Hopi Tribe, the San 
Juan Southern Paiute Tribe, the Pueblo of Zuni, and the United States, 
on behalf of each of them, are authorized to execute waivers of claims 
against Phelps Dodge and agreements not to object to certain uses of 
water by Phelps Dodge in substantially the form of Exhibits ``E'' and 
``J'' to the Settlement Agreement, which waivers and agreements are 
hereby ratified, approved and confirmed. The Navajo Nation, and the 
United States on behalf of the Navajo Nation, is further authorized to 
enter into an agreement with the Arizona Game and Fish Department 
confirming a minimum pool of water in Blue Ridge Reservoir and for 
other purposes in substantially the form of exhibits ``G'' and ``I'' to 
the Settlement Agreement, which agreements are hereby ratified, 
approved and confirmed.

SEC. 6. REALLOCATION OF CAP WATER.

    Simultaneously with the transfer of Blue Ridge Reservoir to the 
United States as provided for in section 5 of this Act, the Secretary 
shall: (i) reallocate to the Community 12,000 acre-feet of the CAP 
water available to the Secretary pursuant to section 406(b) of title IV 
of Public Law 101-628, 104 Stat. 4483; (ii) amend the Community's CAP 
Contract to include the CAP water reallocated to the Community pursuant 
to this section 6; and, (iii) amend the Community's CAP Contract to 
extend the term thereof to 100 years, plus such additional term as may 
result from the exercise of the option provided for in, or other 
extension of, the lease referred to in section 7 of this Act.
            (a) All water service capital charges and other capital 
        charges of any nature associated with the CAP water reallocated 
        to the Community pursuant to this section 6 shall be 
        nonreimbursable to the United States by the Community.
            (b) All water service capital charges and other capital 
        charges of any nature associated with 10,000 acre-feet of that 
        CAP water currently available to the Community under the 
        Community's CAP Contract which shares a priority with 510,000 
        acre-feet of non-Indian municipal and industrial CAP water 
        shall be nonreimbursable to the United States by the Community.
            (c) For purposes of determining the allocation and 
        repayment of costs of the CAP as provided in Article 9.3 of 
        Contract Number 14-0906-09W-09245, Amendment No. 1, between the 
        United States and CAWCD dated December 1, 1988, and any 
        amendment or revision thereof, all of the water service capital 
        charges and other capital charges of any nature associated with 
        the water described in subsections 6(a) and 6(b) hereof shall 
        be non-reimbursable and shall be excluded from CAWCD's 
        repayment obligation.
            (d) The United States shall either--
                    (1) not charge operation, maintenance, and 
                replacement (OM&R) charges to the Community on the 
                first 8,000 acre-feet of CAP water made available to 
                the Community pursuant to this Act, and shall itself 
                pay any such charges as are associated with such 8,000 
                acre-feet of CAP water; or
                    (2) charge the Community only that portion of the 
                OM&R charges associated with electrical energy pumping 
                for the entire 12,000 acre-feet of CAP water made 
                available to the Community pursuant to this section 6, 
                and shall itself pay all other OM&R charges associated 
                with such 12,000 acre-feet of CAP water.
            (e) In the event the CAP water made available to the 
        Community pursuant to this Act is leased to Phelps Dodge as 
        provided for in section 7 hereof, the charges by the United 
        States to Phelps Dodge for such water when delivered under the 
        Lease shall be as provided in subsections (d)(1) or (d)(2) of 
        this section 6.
            (f) In the event the exchange provided for in section 8 of 
        this Act is not approved, the Secretary shall reallocate to 
        Phelps Dodge 8,000 acre-feet of the CAP water referred to in 
subsection 6(b) hereof, shall amend the Community's CAP contract to 
reflect such reallocation, and shall enter into a contract with Phelps 
Dodge for permanent service for the delivery of such water to Phelps 
Dodge through the works of the CAP. The CAP water shall be free of all 
capital charges as provided in subsections 6(b) and 6(c) of this Act. 
The United States shall charge Phelps Dodge OM&R charges for such water 
only as provided in either subsections 6(d)(1) or 6(d)(2) hereof and 
shall itself pay such portions of the OM&R charges as are not paid by 
Phelps Dodge.
            (g) The provisions of section 226 of Public Law 97-293, 96 
        Stat. 1273, 43 U.S.C. Sec. 485h(f) shall not apply to actions 
        taken by the Secretary pursuant to sections 6, 7 or 8 of this 
        Act.

SEC. 7. CAP WATER LEASE.

    The lease referred to in section 7.0 of the Settlement Agreement 
and attached thereto as exhibit ``M'' is hereby ratified, approved and 
confirmed. Notwithstanding the preceding sentence, the lease shall not 
be effective as to the United States, and the Secretary shall not 
execute the lease, until all environmental compliance associated with 
the Secretary's execution of the lease has been completed and the 
exchange referred to in section 8 of this Act has been approved as 
provided in that section. In the event the lease becomes effective, the 
Secretary and the Community may renew or extend the lease at the end of 
the initial term, or any extended term of the lease provided for in the 
initial Lease, upon such terms as the Community, the Secretary and 
Phelps Dodge may agree, provided that any such renewal or extension 
shall not exceed 100 years in term. Subject to the completion of 
environmental compliance, CAP water made available pursuant to the 
lease may be used in the manner and at the locations provided for 
therein, including exchange for use in any county in Arizona outside 
the CAWCD service area.

SEC. 8. EXCHANGE AGREEMENT.

    The Secretary and the Community are authorized to enter into an 
exchange agreement with Phelps Dodge pursuant to which the CAP water 
leased to Phelps Dodge by the Community under the lease authorized 
under section 7 hereof is delivered by Phelps Dodge to the Community in 
return for the right to divert water from the Gila River upstream of 
the Reservation. The term of any such exchange agreement, if approved 
as required by this section 8, shall be for 100 years, plus any 
additional term occasioned by the exercise of the option contained in 
the lease or other extension authorized in the lease or this Act. The 
Secretary shall commence negotiations with respect to the exchange 
agreement forthwith upon the enactment of this Act and shall process 
all environmental compliance associated with the exchange agreement and 
the lease in an expeditious manner. The Secretary shall not execute the 
exchange agreement until all such environmental compliance has been 
finally concluded as provided in the Settlement Agreement and any 
necessary order approving the exchange, or any aspect of the exchange, 
has been obtained from the United States District Court in Globe Equity 
No. 59 and the order is final and subject to no further appeal.

SEC. 9. APPROVAL OF WAIVERS.

    The waivers set forth in section 9.0 of the Settlement Agreement 
shall be effective, and shall be binding upon, the Community, and the 
United States, on behalf of the Community and the Allottees, from and 
after the date either of the conditions set forth in section 4(c) of 
the Settlement Agreement occurs. The United States is authorized and 
directed to execute the Settlement Agreement on behalf of the Allottees 
in its capacity as trustee for the Allottees and of allotted lands on 
the Reservation, and the Settlement Agreement shall be binding upon the 
Allottees.

SEC. 10. MISCELLANEOUS.

    (a) Execution of the Settlement Agreement by the Secretary as 
required by this Act, and the Secretary's performance of the actions 
necessary to acquire title to Blue Ridge Reservoir for the benefit of 
the Navajo Nation pursuant to section 5.0 of the Settlement Agreement 
shall not constitute major Federal actions under the National 
Environmental Policy Act (42 U.S.C. Sec. 4321 et seq.). The Secretary 
shall carry out all environmental compliance required by sections 7 and 
8 of this Act. Nothing in this Act shall be construed as exempting the 
United States from carrying out environmental compliance associated 
with the use of water from Blue Ridge Reservoir by the United States 
for the benefit of the Navajo Nation in the Little Colorado River Basin 
in Arizona.
    (b) The Navajo Nation, and the United States on behalf of the 
Navajo Nation, are authorized to enter into an agreement with the town 
of Payson, Arizona, and the unincorporated communities of Pine and 
Strawberry, Arizona (``the Towns'') or any one of them, to subordinate 
water rights held in Blue Ridge Reservoir by the United States for the 
benefit of the Navajo Nation to rights to the use of not to exceed a 
cumulative total of 3,000 acre-feet per annum of water in Blue Ridge 
Reservoir acquired by the Towns pursuant to the law of the State of 
Arizona.
    (c) The Navajo Nation, and the United States on behalf of the 
Navajo Nation, are authorized to enter into an agreement with Phelps 
Dodge to subordinate water rights held in Blue Ridge Reservoir by the 
United States on behalf of the Navajo Nation to water rights acquired 
by Phelps Dodge in Blue Ridge Reservoir subsequent to the date of the 
enactment of this Act pursuant to the law of the State of Arizona for 
use on land owned by Phelps Dodge around Blue Ridge Reservoir 
identified in the Settlement Agreement. The term of any such agreement 
and the consideration to be paid therefor shall be as agreed to among 
the Navajo Nation and Phelps Dodge.
    (d) With regard to the environmental compliance required for the 
actions contemplated in Sections 7 and 8 of this Act, the Bureau of 
Reclamation shall be designated as the lead agency, and shall 
coordinate and cooperate with the other affected federal agencies as 
required under applicable federal environmental laws.
    (e) The Secretary and the Community are authorized to execute any 
amendments of the Settlement Agreement and to perform any action 
required by any amendments to the Settlement Agreement which may be 
mutually agreed upon by the parties.
    (f) Except for the waivers authorized by Section 5 of this Act, 
nothing in this Act or the Settlement Agreement shall be construed to 
quantify or otherwise affect the water rights, claims or entitlement to 
water of any Arizona tribe, band or community or of any claimant in the 
Gila River Adjudication, other than the Community, the United States on 
behalf of the Community and the Allottees, and Phelps Dodge.
    (g) Any party to the Settlement Agreement, and to the lease and the 
exchange agreement referred to in sections 7 and 8 hereof, 
respectively, if the same are approved, may bring an action or actions 
exclusively in the United States District Court for the District of 
Arizona for the interpretation and enforcement of this Act, the 
Settlement Agreement, the lease and the exchange agreement, naming the 
United States and the Community as parties, and in any such action or 
actions, any claim by the United States or the Community to sovereign 
immunity from suit is hereby waived.
                                 <all>