II 110th CONGRESS 2d Session S. 3734 IN THE SENATE OF THE UNITED STATES December 11 (legislative day, December 10), 2008 Mr. Ensign (for himself and Mr. Reid) introduced the following bill; which was read twice and referred to the Committee on Indian Affairs A BILL To ratify a water settlement agreement affecting the Pyramid Lake Paiute Tribe, and for other purposes.

1.

Short title

This Act may be cited as the Pyramid Lake Paiute Tribe Fish Springs Ranch Settlement Act.

2.

Definitions

In this Act: (1)

Agreement

The term Agreement means the agreement entitled Fish Springs Ranch Water Rights Settlement Agreement and dated May 20, 2007 (including any amendments and exhibits to that agreement). (2)

Environmental impact statement

The term environmental impact statement means the final environmental impact statement for the North Valleys Rights-of-Way Projects prepared by the Bureau of Land Management (70 Fed. Reg. 68473). (3)

Final payment date

The term final payment date means the date on which Fish Springs pays to the Tribe the final installment amount, as provided in the Agreement. (4)

Fish Springs

The term Fish Springs means the Fish Springs Ranch, LLC, a Nevada limited liability company (or a successor in interest). (5)

Project

(A)

In general

The term Project means the project for pumping and transfer by Fish Springs of not more than 8,000 acre-feet of groundwater per year, as described in the environmental impact statement and the record of decision. (B)

Inclusion

The term Project includes the pumping and transfer of not more than 5,000 acre-feet of groundwater per year (in addition to the acre-feet referred to in subparagraph (A)) in accordance with the Agreement, including the acquisition by Fish Springs of the rights and approval to pump that groundwater in accordance with Federal and State law. (C)

Exclusions

The term Project does not include— (i)the project proposed by Intermountain Water Supply, Ltd., and described in the environmental impact statement; or (ii)any other project or activity not otherwise specified in this Act. (6)

Record of decision

The term record of decision means the public record of the decision of the District Manager of the Bureau of Land Management for the State of Nevada issued on May 31, 2006, regarding the environmental impact statement and the Project. (7)

Secretary

The term Secretary means the Secretary of the Interior. (8)

Tribe

The term Tribe means the Pyramid Lake Paiute Tribe of Indians organized under section 16 of the Act of June 18, 1934 (commonly known as the Indian Reorganization Act) (25 U.S.C. 476).

3.

Ratification of Agreement

(a)

In general

Except as provided in subsection (c), and except to the extent that a provision of the Agreement conflicts with this Act, notwithstanding any other provision of Federal or tribal law, the Agreement is ratified. (b)

Execution of Agreement

The Secretary shall execute the obligations of the Secretary under the Agreement (including any exhibit to the Agreement requiring the signature of the Secretary) in accordance with this Act. (c)

Exceptions

(1)

Choice of law

Notwithstanding any provision of the Agreement, the Agreement and this Act shall be governed by applicable Federal law and Nevada State law. (2)

Waiver and retention of claims

Notwithstanding any provision of the Agreement, any waiver or retention of a claim by the Tribe or the United States on behalf of the Tribe relating to the Agreement shall be carried out in accordance with section 4. (d)

Environmental compliance

(1)

No major Federal action

The execution of the Agreement by the Secretary pursuant to this Act shall not be considered to be a major Federal action under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.). (2)

Compliance activities

The Secretary shall carry out all required Federal environmental compliance activities in executing the Agreement. (e)

Compliance with applicable law

This section and the Agreement shall be considered to be in accordance with all applicable requirements of section 2116 of the Revised Statutes (25 U.S.C. 177).

4.

Waiver and releases of claims

(a)

Release of claims against Fish Springs

In executing the Agreement pursuant to this Act, the Tribe and the Secretary, acting on behalf of the Tribe, shall waive and release all claims against Fish Springs— (1)for damage, loss, or injury to water rights or claims of interference with or diversion or taking of water rights (including claims for injury to land resulting from such a damage, loss, injury, interference, diversion, or taking under the Agreement) relating to the use of water by Fish Springs under the Agreement for the Project; or (2)relating in any manner to the negotiation or adoption of the Agreement. (b)

Release of claims against United States

In carrying out the Agreement, the Tribe shall waive and release any claim of the Tribe against the United States (including all employees and agents of the United States) relating in any manner to— (1)damage, loss, or injury to water, water rights, land, or any other resource due to loss of water or water rights (including damage, loss, or injury to hunting, fishing, gathering, or cultural rights due to loss of water or water rights, claims relating to interference with or diversion or taking of water or water rights, and claims relating to a failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) due to use of water by Fish Springs under the Agreement for the Project; (2)the record of decision, the environmental impact statement, or the Agreement; or (3)the negotiation, execution, or adoption of the Agreement or this Act, including— (A)the use by the Tribe of funds paid to the Tribe under the Agreement; and (B)the acquisition and use by the Tribe of land under the Agreement. (c)

Effectiveness of waivers and releases

(1)

Claims against Fish Springs

The waivers and releases under subsection (a) shall take effect on the final payment date. (2)

Claims against United States

A waiver or release under subsection (b) shall take effect on the date on which the Tribe executes the waiver or release. (d)

Retention of claims by United States and Tribe

The Tribe and the Secretary, acting on behalf of the Tribe, shall retain— (1)all claims for enforcement of the Agreement or this Act through such legal and equitable remedies as are available in the appropriate United States court; (2)subject to the right of Fish Springs to carry out the Project, the right to assert and protect any right of the Tribe to surface or groundwater or any other trust resource; (3)all rights to claim or acquire a water right in accordance with applicable law, and to use and protect any water right acquired after the date of enactment of this Act, that is not in conflict with the Agreement and this Act; (4)all claims relating to activities affecting the quality of water, including any claim of the Tribes under— (A)the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including claims for damages to natural resources); (B)the Safe Drinking Water Act (42 U.S.C. 300f et seq.); (C)the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.); or (D)a regulation implementing an Act referred to in subparagraphs (A) through (C); and (5)all rights, remedies, privileges, immunities, and authorities not specifically waived and released pursuant to this Act.

5.

Satisfaction of claims

The benefits provided to the Tribe under the Agreement and this Act shall be considered to be full satisfaction of all claims of the Tribe and the United States waived and released pursuant to section 4.

6.

Beneficiaries to Agreement

(a)

Requirement

The parties to the Agreement shall be the only beneficiaries of the Agreement. (b)

Prohibition

Nothing in the Agreement or this Act provides to any individual or entity third-party beneficiary status relating to the Agreement.

7.

Jurisdiction

A civil action relating to the enforcement of the Agreement shall be filed in the United States District Court for the District of Nevada.

8.

Miscellaneous provisions

(a)

Truckee-Carson-Pyramid Lake Water Rights Settlement Act

Nothing in this Act affects any right or interest recognized or established in the Truckee-Carson-Pyramid Lake Water Rights Settlement Act (Public Law 101–618; 104 Stat. 3294). (b)

No establishment of standard

Nothing in this Act establishes a standard for the quantification of a Federal reserved water right or any other claim of an Indian tribe other than the Tribe in any other judicial or administrative proceeding. (c)

Other claims

Nothing in the Agreement or this Act quantifies or otherwise adversely affects any water right, claim or entitlement to water, or any other right of any Indian tribe, band, or community other than the Tribe.

9.

Nullification date

If the Tribe fails to execute any waiver or release described in section 4(b) by the date that is 90 days after the date of enactment of this Act, the Agreement shall be null and void.