[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5293 Reported in House (RH)]






                                                 Union Calendar No. 529
110th CONGRESS
  2d Session
                                H. R. 5293

                          [Report No. 110-815]

 To approve the settlement of the water rights claims of the Shoshone-
Paiute Tribes of the Duck Valley Reservation in Nevada, to require the 
 Secretary of the Interior to carry out the settlement, and for other 
                               purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            February 7, 2008

Mr. Heller of Nevada introduced the following bill; which was referred 
                 to the Committee on Natural Resources

                             July 31, 2008

                    Additional sponsor: Ms. Berkley

                             July 31, 2008

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
    [For text of introduced bill, see copy of bill as introduced on 
                           February 7, 2008]

_______________________________________________________________________

                                 A BILL


 
 To approve the settlement of the water rights claims of the Shoshone-
Paiute Tribes of the Duck Valley Reservation in Nevada, to require the 
 Secretary of the Interior to carry out the settlement, and for other 
                               purposes.

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

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.
                                                 Union Calendar No. 529

110th CONGRESS

  2d Session

                               H. R. 5293

                          [Report No. 110-815]

_______________________________________________________________________

                                 A BILL

 To approve the settlement of the water rights claims of the Shoshone-
Paiute Tribes of the Duck Valley Reservation in Nevada, to require the 
 Secretary of the Interior to carry out the settlement, and for other 
                               purposes.

_______________________________________________________________________

                             July 31, 2008

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed