Short title

This Act may be cited as the

Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act

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.

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.

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.

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.

Tribal water rights

(a)

In general

Tribal water rights shall be held in trust by the United States for the benefit of the Tribes. (b)

Administration

(1)

Enactment of water code

Not later than 3 years after the date of enactment of this Act, the Tribes, in accordance with provisions of the Tribes' constitution and subject to the approval of the Secretary, shall enact a water code to administer tribal water rights. (2)

Interim administration

The Secretary shall regulate the tribal water rights during the period beginning on the date of enactment of this Act and ending on the date on which the Tribes enact a water code under paragraph (1). (c)

Tribal water rights not subject to loss

The tribal water rights shall not be subject to loss by abandonment, forfeiture, or nonuse.

Duck Valley Indian Irrigation Project

(a)

Status of the Duck Valley Indian Irrigation Project

Nothing in this Act shall affect the status of the Duck Valley Indian Irrigation Project under Federal law. (b)

Capital costs nonreimbursable

The capital costs associated with the Duck Valley Indian Irrigation Project as of the date of enactment of this Act, including any capital cost incurred with funds distributed under this Act for the Duck Valley Indian Irrigation Project, shall be nonreimbursable.

Development and Maintenance Funds

(a)

Definition of funds

In this section, the term Funds means— (1)the Development Fund; and (2)the Maintenance Fund. (b)

Development Fund

(1)

Establishment

There is established in the Treasury of the United States a fund to be known as the Shoshone-Paiute Tribes Water Rights Development Fund. (2)

Use of funds

(A)

Priority use of funds for rehabilitation

The Tribes shall use amounts in the Development Fund to— (i)rehabilitate the Duck Valley Indian Irrigation Project; or (ii)for other purposes under subparagraph (B), provided that the Tribes have given written notification to the Secretary that— (I)the Duck Valley Indian Irrigation Project has been rehabilitated to an acceptable condition; or (II)sufficient funds will remain available from the Development Fund to rehabilitate the Duck Valley Indian Irrigation Project to an acceptable condition after expending funds for other purposes under subparagraph (B). (B)

Other uses of funds

Once the Tribes have provided written notification as provided in subparagraph (A)(ii)(I) or (A)(ii)(II), the Tribes may use amounts from the Development Fund for any of the following purposes: (i)To expand the Duck Valley Indian Irrigation Project. (ii)To pay or reimburse costs incurred by the Tribes in acquiring land and water rights. (iii)For purposes of cultural preservation. (iv)To restore or improve fish or wildlife habitat. (v)For fish or wildlife production, water resource development, or agricultural development. (vi)For water resource planning and development. (vii)To pay the costs of— (I)designing and constructing water supply and sewer systems for tribal communities, including a water quality testing laboratory; (II)other appropriate water-related projects and other related economic development projects; (III)the development of a water code; and (IV)other costs of implementing the Agreement. (3)

Authorization of appropriations

For each of fiscal years 2009 through 2013, there is authorized to be appropriated to the Secretary for deposit in the Development Fund an amount equal to the sum of— (A)$9,000,000; and (B)the interest that would have accrued during the preceding fiscal year on balances held in the Development Fund, as calculated using the applicable rate for interest-bearing obligations of the United States. (c)

Maintenance Fund

(1)

Establishment

There is established in the Treasury of the United States a fund to be known as the Shoshone-Paiute Tribes Operation and Maintenance Fund. (2)

Use of funds

The Tribes shall use amounts in the Maintenance Fund to pay or provide reimbursement for— (A)operation, maintenance, and replacement costs of the Duck Valley Indian Irrigation Project and other water-related projects funded under this Act; or (B)operation, maintenance, and replacement costs of water supply and sewer systems for tribal communities, including the operation and maintenance costs of a water quality testing laboratory. (3)

Authorization of appropriations

For each of fiscal years 2009 through 2013, there is authorized to be appropriated to the Secretary for deposit in the Maintenance Fund an amount equal to the sum of— (A)$3,000,000; and (B)the interest that would have accrued during the preceding fiscal year on balances held in the Maintenance Fund, as calculated using the applicable rate for interest-bearing obligations of the United States. (d)

Estimate of accrued interest

The President’s budget submission shall include an estimate of the amount of interest that would have accrued under the subsections (b)(3)(B), (c)(3)(B), and (e)(2). (e)

Additional authorization of appropriations of interest

(1)

In general

There is authorized to be appropriated an amount equal to the additional interest that would have accrued on amounts in the Funds during the period beginning on the date of completion of the event described in section 9(d)(3) and ending on the later of— (A)the date of completion of the event described in section 9(d)(1); or (B)the date of completion of the event described in section 9(d)(2). (2)

Calculation

The interest authorized to be appropriated under paragraph (1) shall be calculated using the applicable rate for interest-bearing obligations of the United States. (f)

Availability of amounts from funds

Amounts made available under subsections (b)(3), (c)(3), and (e) shall be available for expenditure or withdrawal only after the effective date as set forth in section 9(d). (g)

Administration of funds

Upon completion of the actions described in section 9(d), the Secretary, in accordance with the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.) shall manage the Funds, including by investing amounts from the Funds in accordance with the Act of April 1, 1880 (25 U.S.C. 161), and the first section of the Act of June 24, 1938 (25 U.S.C. 162a). (h)

Expenditures and withdrawal

(1)

Tribal management plan

(A)

In general

The Tribes may withdraw all or part of amounts in the Funds on approval by the Secretary of a tribal management plan as described in the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.). (B)

Requirements

In addition to the requirements under the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.), the tribal management plan shall require that the Tribes spend any amounts withdrawn from the Funds in accordance with the purposes described in subsection (b)(2) or (c)(2). (C)

Enforcement

The Secretary may take judicial or administrative action to enforce the provisions of any tribal management plan to ensure that any amounts withdrawn from the Funds under the plan are used in accordance with this Act and the Agreement. (D)

Liability

If the Tribes exercise the right to withdraw amounts from the Funds, neither the Secretary nor the Secretary of the Treasury shall retain any liability for the expenditure or investment of the amounts. (2)

Expenditure plan

(A)

In general

The Tribes shall submit to the Secretary for approval an expenditure plan for any portion of the amounts in the Funds that the Tribes do not withdraw under the tribal management plan. (B)

Description

The expenditure plan shall describe the manner in which, and the purposes for which, amounts of the Tribes remaining in the Funds will be used. (C)

Approval

On receipt of an expenditure plan under subparagraph (A), the Secretary shall approve the plan if the Secretary determines that the plan is reasonable and consistent with this Act and the Agreement. (D)

Annual report

For each Fund, the Tribes shall submit to the Secretary an annual report that describes all expenditures from the Fund during the year covered by the report. (3)

Funding agreement

Notwithstanding any other provision of this Act, on receipt of a request from the Tribes, the Secretary shall include an amount from funds made available under this section in the funding agreement of the Tribes under title IV of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 458aa et seq.), for use in accordance with subsections (b)(2) and (c)(2). No amount made available under this Act may be requested until the waivers under section 9(a) take effect. (i)

No per capita payments

No amount from the Funds (including any amounts appropriated under subsections (b)(3)(B), (c)(3)(B), and (e)(1) for interest income that would have accrued to the Funds) shall be distributed to a member of the Tribes on a per capita basis.

Tribal waiver and release of claims

(a)

Waiver and release of claims by Tribes and United States acting as trustee for Tribes

In return for recognition of the Tribes’ water rights and other benefits as set forth in the Agreement and this Act, the Tribes, on behalf of themselves and their members, and the United States acting in its capacity as trustee for the Tribes are authorized to execute a waiver and release of— (1)all claims for water rights in the State of Nevada that the Tribes, or the United States acting in its capacity as trustee for the Tribes, asserted, or could have asserted, in any proceeding, including pending proceedings before the Nevada State Engineer to determine the extent and nature of the water rights of the Tribes in the East Fork of the Owyhee River in Nevada, up to and including the effective date, except to the extent that such rights are recognized in the Agreement or this Act; and (2)all claims for damages, losses or injuries to water rights or claims of interference with, diversion or taking of water rights (including claims for injury to lands resulting from such damages, losses, injuries, interference with, diversion, or taking of water rights) within the State of Nevada that first accrued at any time up to and including the effective date. (b)

Waiver and release of claims by Tribes against United States

The Tribes, on behalf of themselves and their members, are authorized to execute a waiver and release of— (1)all claims against the United States, its agencies, or employees, relating in any manner to claims for water rights in or water of the States of Nevada and Idaho that the United States acting in its capacity as trustee for the Tribes asserted, or could have asserted, in any proceeding, including pending proceedings before the Nevada State Engineer to determine the extent and nature of the water rights of the Tribes in the East Fork of the Owyhee River in Nevada, or the Snake River Basin Adjudication in Idaho; (2)all claims against the United States, its agencies, or employees relating in any manner to damages, losses, or injuries to water, water rights, land, or other resources due to loss of water or water rights (including damages, losses or injuries to fishing and other similar rights due to loss of water or water rights; claims relating to interference with, diversion or taking of water; or claims relating to failure to protect, acquire, replace, or develop water, water rights or water infrastructure) within the States of Nevada and Idaho that first accrued at any time up to and including the effective date; (3)all claims against the United States, its agencies, or employees relating to the operation, maintenance, or rehabilitation of the Duck Valley Indian Irrigation Project that first accrued at any time up to and including the date upon which the Tribes notify the Secretary as provided in section 8(b)(2)(A)(ii)(I) that the rehabilitation of the Duck Valley Indian Irrigation Project under this Act to an acceptable level has been accomplished; (4)all claims against the United States, its agencies, or employees relating in any manner to the litigation of claims relating to the Tribes’ water rights in pending proceedings before the Nevada State Engineer to determine the extent and nature of the water rights of the Tribes in the East Fork of the Owyhee River in Nevada or the Snake River Basin Adjudication in Idaho; and (5)all claims against the United States, its agencies, or employees relating in any manner to the negotiation, execution, or adoption of the Agreement, exhibits thereto, the decree referred to in subsection (d)(2), or this Act. (c)

Reservation of rights and retention of claims

Notwithstanding the waivers and releases authorized in this Act, the Tribes on their own behalf and the United States acting in its capacity as trustee for the Tribes retain— (1)all claims for enforcement of the Agreement, the decree referred to in subsection (d)(2), or this Act, through such legal and equitable remedies as may be available in the decree court or the appropriate Federal court; (2)all rights to acquire a water right in a State to the same extent as any other entity in the State, in accordance with State law, and to use and protect water rights acquired after the date of enactment of this Act; (3)all claims relating to activities affecting the quality of water including any claims the Tribes might have under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including claims for damages to natural resources), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), and the regulations implementing those Acts; and (4)all rights, remedies, privileges, immunities, and powers not specifically waived and released pursuant to this Act. (d)

Effective date

Notwithstanding anything in the Agreement to the contrary, the waivers by the Tribes, or the United States on behalf of the Tribes, under this section shall take effect on the date on which the Secretary publishes in the Federal Register a statement of findings that includes a finding that— (1)the Agreement and the waivers and releases authorized and set forth in subsections (a) and (b) have been executed by the parties and the Secretary; (2)the Fourth Judicial District Court, Elko County, Nevada, has issued a judgment and decree consistent with the Agreement from which no further appeal can be taken; and (3)the amounts authorized under subsections (b)(3) and (c)(3) of section 8 have been appropriated. (e)

Failure To publish statement of findings

If the Secretary does not publish a statement of findings under subsection (d) by March 31, 2016— (1)the Agreement and this Act shall not take effect; and (2)any funds and interest accrued thereon that have been appropriated under this Act shall immediately revert to the general fund of the United States Treasury. (f)

Tolling of claims

(1)

In general

Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the period beginning on the date of enactment of this Act and ending on the date on which the amounts authorized to be appropriated under subsections (b)(3) and (c)(3) of section 8 are appropriated. (2)

Effect of subparagraph

Nothing in this subparagraph revives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act.

10.

Miscellaneous

(a)

General disclaimer

The parties to the Agreement expressly reserve all rights not specifically granted, recognized, or relinquished by— (1)the settlement described in the Agreement; or (2)this Act. (b)

Limitation of claims and rights

Nothing in this Act— (1)establishes a standard for quantifying— (A)a Federal reserved water right; (B)an aboriginal claim; or (C)any other water right claim of an Indian tribe in a judicial or administrative proceeding; (2)affects the ability of the United States, acting in its sovereign capacity, to take actions authorized by law, including any laws relating to health, safety, or the environment, including the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) (commonly known as the Resource Conservation and Recovery Act of 1976), and the regulations implementing those Acts; (3)affects the ability of the United States to take actions, acting in its capacity as trustee for any other Tribe, Pueblo, or allottee; (4)waives any claim of a member of the Tribes in an individual capacity that does not derive from a right of the Tribes; or (5)limits the right of a party to the Agreement to litigate any issue not resolved by the Agreement or this Act. (c)

Admission against interest

Nothing in this Act constitutes an admission against interest by a party in any legal proceeding. (d)

Reservation

The Reservation shall be— (1)considered to be the property of the Tribes; and (2)permanently held in trust by the United States for the sole use and benefit of the Tribes. (e)

Jurisdiction

(1)

Subject matter jurisdiction

Nothing in the Agreement or this Act restricts, enlarges, or otherwise determines the subject matter jurisdiction of any Federal, State, or tribal court. (2)

Civil or regulatory jurisdiction

Nothing in the Agreement or this Act impairs or impedes the exercise of any civil or regulatory authority of the United States, the State, or the Tribes. (3)

Consent to jurisdiction

The United States consents to jurisdiction in a proper forum for purposes of enforcing the provisions of the Agreement. (4)

Effect of subsection

Nothing in this subsection confers jurisdiction on any State court to— (A)interpret Federal law regarding the health, safety, or the environment or determine the duties of the United States or other parties pursuant to such Federal law; or (B)conduct judicial review of a Federal agency action.