1.Short title; table of
contents
(a)This Act may be cited
as the Taos Pueblo Indian Water Rights
Settlement Act
.
(b)The table of contents of this Act is as follows:
Sec. 1. Short title; table of contents.
Sec. 2. Purpose.
Sec. 3. Definitions.
Sec. 4. Pueblo rights.
Sec. 5. Pueblo water infrastructure and watershed
enhancement.
Sec. 6. Taos Pueblo Water Development Fund.
Sec. 7. Marketing.
Sec. 8. Mutual-Benefit Projects.
Sec. 9. San Juan-Chama Project contracts.
Sec. 10. Authorizations, ratifications, confirmations, and
conditions precedent.
Sec. 11. Waivers and releases.
Sec. 12. Interpretation and enforcement.
Sec. 13. Disclaimer.
2.The purposes of this Act are—
(1)to approve,
ratify, and confirm the Taos Pueblo Indian Water Rights Settlement
Agreement;
(2)to authorize and
direct the Secretary to execute the Settlement Agreement and to perform all
obligations of the Secretary under the Settlement Agreement and this Act;
and
(3)to authorize all
actions and appropriations necessary for the United States to meet its
obligations under the Settlement Agreement and this Act.
3.In this Act:
(1)Eligible
non-pueblo entitiesThe term Eligible Non-Pueblo
Entities means the Town of Taos, El Prado Water and Sanitation District
(EPWSD
), and the New Mexico Department of Finance and
Administration Local Government Division on behalf of the Acequia Madre del Rio
Lucero y del Arroyo Seco, the Acequia Madre del Prado, the Acequia del Monte,
the Acequia Madre del Rio Chiquito, the Upper Ranchitos Mutual Domestic Water
Consumers Association, the Upper Arroyo Hondo Mutual Domestic Water Consumers
Association, and the Llano Quemado Mutual Domestic Water Consumers
Association.
(2)The term Enforcement Date means the date upon
which the Secretary publishes the notice required by section 10(f)(1).
(3)The term Mutual-Benefit Projects means the
projects described and identified in articles 6 and 10.1 of the Settlement
Agreement.
(4)The term Partial Final Decree means the
Decree entered in New Mexico v. Abeyta and New Mexico v. Arellano, Civil Nos.
7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.) (consolidated), for the
resolution of the Pueblo’s water right claims and which is substantially in the
form agreed to by the Parties and attached to the Settlement Agreement as
Attachment 5.
(5)The
term Parties means the Parties to the Settlement Agreement, as
identified in article 1 of the Settlement Agreement.
(6)The
term Pueblo means the Taos Pueblo, a sovereign Indian tribe duly
recognized by the United States of America.
(7)The term Pueblo
lands means those lands located within the Taos Valley to which the
Pueblo, or the United States in its capacity as trustee for the Pueblo, holds
title subject to Federal law limitations on alienation. Such lands include
Tracts A, B, and C, the Pueblo’s land grant, the Blue Lake Wilderness Area, and
the Tenorio and Karavas Tracts and are generally depicted in Attachment 2 to
the Settlement Agreement.
(8)The term San Juan-Chama Project means the
Project authorized by section 8 of the Act of June 13, 1962 (76 Stat. 96 and
97), and the Act of April 11, 1956 (70 Stat. 105).
(9)The
term Secretary means the Secretary of the Interior.
(10)The term Settlement Agreement means the
contract dated March 31, 2006, between and among—
(A)the United States,
acting solely in its capacity as trustee for Taos Pueblo;
(B)the Taos Pueblo,
on its own behalf;
(C)the State of New
Mexico;
(D)the Taos Valley
Acequia Association and its 55 member ditches (TVAA
);
(E)the Town of
Taos;
(F)EPWSD; and
(G)the 12 Taos area
Mutual Domestic Water Consumers Associations (MDWCAs
), as
amended to conform with this Act.
(11)The term State Engineer means the New
Mexico State Engineer.
(12)The term Taos Valley means the geographic
area depicted in Attachment 4 of the Settlement Agreement.
4.
(a)Those rights to which the Pueblo is entitled under the
Partial Final Decree shall be held in trust by the United States on behalf of
the Pueblo and shall not be subject to forfeiture, abandonment, or permanent
alienation.
(b)Subsequent Act
of congressThe Pueblo shall not be denied all or any part of its
rights held in trust absent its consent unless such rights are explicitly
abrogated by an Act of Congress hereafter enacted.
5.Pueblo water
infrastructure and watershed enhancement
(a)The Secretary, acting through the Commissioner of
Reclamation, shall provide grants and technical assistance to the Pueblo on a
nonreimbursable basis to—
(1)plan, permit,
design, engineer, construct, reconstruct, replace, or rehabilitate water
production, treatment, and delivery infrastructure;
(2)restore, preserve,
and protect the environment associated with the Buffalo Pasture area;
and
(3)protect and
enhance watershed conditions.
(b)Upon the Enforcement Date, all amounts appropriated
pursuant to section 10(c)(1) or made available from other authorized sources,
shall be available in grants to the Pueblo after the requirements of subsection
(c) have been met.
(c)The Secretary shall provide financial
assistance pursuant to subsection (a) upon the Pueblo’s submittal of a plan
that identifies the projects to be implemented consistent with the purposes of
this section and describes how such projects are consistent with the Settlement
Agreement.
(d)Notwithstanding subsection (b), $10,000,000 of the monies
authorized to be appropriated pursuant to section 10(c)(1)—
(1)shall be made
available in grants to the Pueblo by the Secretary upon appropriation or
availability of the funds from other authorized sources; and
(2)shall be
distributed by the Secretary to the Pueblo on receipt by the Secretary from the
Pueblo of a written notice, a Tribal Council resolution that describes the
purposes under subsection (a) for which the monies will be used, and a plan
under subsection (c) for this portion of the funding.
6.Taos Pueblo Water
Development Fund
(a)There
is established in the Treasury of the United States a fund to be known as the
Taos Pueblo Water Development Fund
(hereinafter,
Fund
) to be used to pay or reimburse costs incurred by the
Pueblo for—
(1)acquiring water
rights;
(2)planning,
permitting, designing, engineering, constructing, reconstructing, replacing,
rehabilitating, operating, or repairing water production, treatment or delivery
infrastructure, on-farm improvements, or wastewater infrastructure;
(3)restoring,
preserving and protecting the Buffalo Pasture, including planning, permitting,
designing, engineering, constructing, operating, managing and replacing the
Buffalo Pasture Recharge Project;
(4)administering the
Pueblo's water rights acquisition program and water management and
administration system; and
(5)for watershed
protection and enhancement, support of agriculture, water-related Pueblo
community welfare and economic development, and costs related to the
negotiation, authorization, and implementation of the Settlement
Agreement.
(b)The Secretary shall manage the Fund, invest amounts in
the Fund, and make monies available from the Fund for distribution to the
Pueblo consistent with the American Indian Trust Fund Management Reform Act of
1994 (25 U.S.C. 4001
et seq.) (hereinafter, Trust Fund Reform Act
),
this Act, and the Settlement Agreement.
(c)Upon the Enforcement Date, the Secretary shall invest
amounts in the Fund in accordance with—
(1)the Act of April
1, 1880 (21 Stat. 70, ch. 41,
25 U.S.C.
161);
(2)the first section
of the Act of June 24, 1938 (52 Stat. 1037, ch. 648,
25 U.S.C.
162a); and
(3)the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.).
(d)Availability of
amounts from the fundUpon the Enforcement Date, all monies
deposited in the Fund pursuant to section 10(c)(2) or made available from other
authorized sources shall be available to the Pueblo for expenditure or
withdrawal after the requirements of subsection (e) have been met.
(e)Expenditures and
withdrawal
(1)
(A)The Pueblo may withdraw all or part of the Fund on
approval by the Secretary of a tribal management plan as described in the Trust
Fund Reform Act.
(B)In
addition to the requirements under the Trust Fund Reform Act, the tribal
management plan shall require that the Pueblo spend any funds in accordance
with the purposes described in subsection (a).
(2)The
Secretary may take judicial or administrative action to enforce the requirement
that monies withdrawn from the Fund are used for the purposes specified in
subsection (a).
(3)If
the Pueblo exercises the right to withdraw monies from the Fund, neither the
Secretary nor the Secretary of the Treasury shall retain any liability for the
expenditure or investment of the monies withdrawn.
(4)
(A)The Pueblo shall submit to the Secretary for approval an
expenditure plan for any portions of the funds made available under this Act
that the Pueblo does not withdraw under paragraph (1)(A).
(B)The
expenditure plan shall describe the manner in which, and the purposes for
which, amounts remaining in the Fund will be used.
(C)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.
(5)The Pueblo shall submit to the Secretary an annual report
that describes all expenditures from the Fund during the year covered by the
report.
(f)Funds available
upon appropriationNotwithstanding subsection (d), $15,000,000 of
the monies authorized to be appropriated pursuant to section 10(c)(2)—
(1)shall be available upon appropriation or
made available from other authorized sources for the Pueblo’s acquisition of
water rights pursuant to Article 5.1.1.2.3 of the Settlement Agreement, the
Buffalo Pasture Recharge Project, implementation of the Pueblo's water rights
acquisition program and water management and administration system, the design,
planning, and permitting of water or wastewater infrastructure eligible for
funding under section 5 or 6, or costs related to the negotiation,
authorization, and implementation of the Settlement Agreement; and
(2)shall be
distributed by the Secretary to the Pueblo on receipt by the Secretary from the
Pueblo of a written notice and a Tribal Council resolution that describes the
purposes under paragraph (1) for which the monies will be used.
(g)No per capita
distributionsNo part of the Fund shall be distributed on a per
capita basis to members of the Pueblo.
7.
(a)Subject to the approval of the Secretary in accordance
with subsection (e), the Pueblo may market water rights secured to it under the
Settlement Agreement and Partial Final Decree, provided that such marketing is
in accordance with this section.
(b)Pueblo contract
rights to san juan-chama project waterSubject to the approval of
the Secretary in accordance with subsection (e), the Pueblo may subcontract
water made available to the Pueblo under the contract authorized under section
9(b)(1)(A) to third parties to supply water for use within or without the Taos
Valley, provided that the delivery obligations under such subcontract are not
inconsistent with the Secretary’s existing San Juan-Chama Project obligations
and such subcontract is in accordance with this section.
(c)
(1)Diversion or use of water off Pueblo lands pursuant to
Pueblo water rights or Pueblo contract rights to San Juan-Chama Project water
shall be subject to and not inconsistent with the same requirements and
conditions of State law, any applicable Federal law, and any applicable
interstate compact as apply to the exercise of water rights or contract rights
to San Juan-Chama Project water held by non-Federal, non-Indian entities,
including all applicable State Engineer permitting and reporting
requirements.
(2)Such diversion or use off Pueblo lands under paragraph (1)
shall not impair water rights or increase surface water depletions within the
Taos Valley.
(d)
(1)The maximum term of any water use lease or subcontract,
including all renewals, shall not exceed 99 years in duration.
(2)The Pueblo shall not permanently alienate any rights it
has under the Settlement Agreement, the Partial Final Decree, and this
Act.
(e)The Secretary shall approve or disapprove any lease or
subcontract submitted by the Pueblo for approval not later than—
(1)180 days after
submission; or
(2)60 days after
compliance, if required, with section 102(2)(C) of the National Environmental
Policy Act of 1969 (42 U.S.C. 4332(2)(C)), or any other
requirement of Federal law, whichever is later, provided that no Secretarial
approval shall be required for any water use lease with a term of less than 7
years.
(f)No forfeiture or
abandonmentThe nonuse by a lessee or subcontractor of the Pueblo
of any right to which the Pueblo is entitled under the Partial Final Decree
shall in no event result in a forfeiture, abandonment, relinquishment, or other
loss of all or any part of those rights.
(g)
(1)The approval authority of the Secretary provided under
subsection (e) shall not amend, construe, supersede, or preempt any State or
Federal law, interstate compact, or international treaty that pertains to the
Colorado River, the Rio Grande, or any of their tributaries, including the
appropriation, use, development, storage, regulation, allocation, conservation,
exportation, or quantity of those waters.
(2)The provisions of section 2116 of the Revised Statutes
(25 U.S.C.
177) shall not apply to any water made available under the
Settlement Agreement.
(h)Nothing in this Act
shall be construed to establish, address, prejudice, or prevent any party from
litigating whether or to what extent any applicable State law, Federal law, or
interstate compact does or does not permit, govern, or apply to the use of the
Pueblo’s water outside of New Mexico.
8.
(a)Upon the Enforcement Date, the Secretary, acting through
the Commissioner of Reclamation, shall provide financial assistance in the form
of grants on a nonreimbursable basis to Eligible Non-Pueblo Entities to plan,
permit, design, engineer, and construct the Mutual-Benefit Projects in
accordance with the Settlement Agreement—
(1)to minimize adverse impacts on the Pueblo’s
water resources by moving future non-Indian ground water pumping away from the
Pueblo’s Buffalo Pasture; and
(2)to implement the
resolution of a dispute over the allocation of certain surface water flows
between the Pueblo and non-Indian irrigation water right owners in the
community of Arroyo Seco Arriba.
(b)
(1)The Federal share of the total cost of planning, designing,
and constructing the Mutual-Benefit Projects authorized in subsection (a) shall
be 75 percent and shall be nonreimbursable.
(2)The non-Federal share of the total cost of planning,
designing, and constructing the Mutual-Benefit Projects shall be 25 percent and
may be in the form of in-kind contributions, including the contribution of any
valuable asset or service that the Secretary determines would substantially
contribute to completing the Mutual-Benefit Projects.
9.San Juan-Chama
Project contracts
(a)Contracts issued under this section shall be in
accordance with this Act and the Settlement Agreement.
(b)Contracts for
san juan-chama project water
(1)The Secretary shall enter into 3 repayment contracts by
not later than 180 days after the date of enactment of this Act, for the
delivery of San Juan-Chama Project water in the following amounts:
(A)2,215
acre-feet/annum to the Pueblo.
(B)366
acre-feet/annum to the Town of Taos.
(C)40 acre-feet/annum
to EPWSD.
(2)Each
such contract shall provide that if the conditions precedent set forth in
section 10(f)(2) have not been fulfilled by December 31, 2016, the contract
shall expire on that date.
(3)Public Law 87–483 (76 Stat. 97) applies to the contracts
entered into under paragraph (1) and no preference shall be applied as a result
of section 4(a) with regard to the delivery or distribution of San Juan-Chama
Project water or the management or operation of the San Juan-Chama
Project.
(c)With
respect to the contract authorized and required by subsection (b)(1)(A) and
notwithstanding the provisions of
Public Law
87–483 (76 Stat. 96) or any other provision of law—
(1)the Secretary shall waive the entirety of
the Pueblo’s share of the construction costs, both principal and the interest,
for the San Juan-Chama Project and pursuant to that waiver, the Pueblo’s share
of all construction costs for the San Juan-Chama Project, inclusive of both
principal and interest shall be nonreimbursable; and
(2)the Secretary’s waiver of the Pueblo’s
share of the construction costs for the San Juan-Chama Project will not result
in an increase in the pro rata shares of other San Juan-Chama Project water
contractors, but such costs shall be absorbed by the United States Treasury or
otherwise appropriated to the Department of the Interior.
10.Authorizations,
ratifications, confirmations, and conditions precedent
(a)
(1)Except to the extent that any provision of the Settlement
Agreement conflicts with any provision of this Act, the Settlement Agreement is
authorized, ratified, and confirmed.
(2)To
the extent amendments are executed to make the Settlement Agreement consistent
with this Act, such amendments are also authorized, ratified, and
confirmed.
(b)Execution of
settlement agreementTo the extent that the Settlement Agreement
does not conflict with this Act, the Secretary shall execute the Settlement
Agreement, including all exhibits to the Settlement Agreement requiring the
signature of the Secretary and any amendments necessary to make the Settlement
Agreement consistent with this Act, after the Pueblo has executed the
Settlement Agreement and any such amendments.
(c)Authorization of
appropriations
(1)Taos pueblo
infrastructure and watershed fundThere is authorized to be
appropriated to the Secretary to provide grants pursuant to section 5,
$30,000,000, as adjusted under paragraph (4), for the period of fiscal years
2010 through 2016.
(2)Taos pueblo
water development fundThere is authorized to be appropriated to
the Taos Pueblo Water Development Fund, established at section 6(a),
$58,000,000, as adjusted under paragraph (4), for the period of fiscal years
2010 through 2016.
(3)Mutual-benefit
projects fundingThere is further authorized to be appropriated
to the Secretary to provide grants pursuant to section 8, a total of
$33,000,000, as adjusted under paragraph (4), for the period of fiscal years
2010 through 2016.
(4)Adjustments to
amounts authorizedThe amounts authorized to be appropriated
under paragraphs (1) through (3) shall be adjusted by such amounts as may be
required by reason of changes since April 1, 2007, in construction costs, as
indicated by engineering cost indices applicable to the types of construction
or rehabilitation involved.
(5)Except for the funds to be provided to the Pueblo pursuant
to section 5(d), the Secretary shall deposit the funds made available pursuant
to paragraphs (1) and (3) into a Taos Settlement Fund to be established within
the Treasury of the United States so that such funds may be made available to
the Pueblo and the Eligible Non-Pueblo Entities upon the Enforcement Date as
set forth in sections 5(b) and 8(a).
(d)Authority of the
SecretaryThe Secretary is authorized to enter into such
agreements and to take such measures as the Secretary may deem necessary or
appropriate to fulfill the intent of the Settlement Agreement and this
Act.
(e)
(1)Effect of
execution of settlement agreementThe Secretary’s execution of
the Settlement Agreement shall not constitute a major Federal action under the
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(2)Compliance with
environmental lawsIn carrying out this Act, the Secretary shall
comply with each law of the Federal Government relating to the protection of
the environment, including—
(A)the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.); and
(B)the Endangered
Species Act of 1973 (16 U.S.C. 1531 et seq.).
(f)Conditions
precedent and secretarial finding
(1)Upon the fulfillment of the conditions precedent
described in paragraph (2), the Secretary shall publish in the Federal Register
a statement of finding that the conditions have been fulfilled.
(2)The
conditions precedent referred to in paragraph (1) are the following:
(A)The President has
signed into law the Taos Pueblo Indian Water Rights Settlement Act.
(B)To the extent that
the Settlement Agreement conflicts with this Act, the Settlement Agreement has
been revised to conform with this Act.
(C)The Settlement
Agreement, so revised, including waivers and releases pursuant to section 11,
has been executed by the Parties and the Secretary prior to the Parties’ motion
for entry of the Partial Final Decree.
(D)Congress has fully
appropriated or the Secretary has provided from other authorized sources all
funds authorized by paragraphs (1) through (3) of subsection (c) so that the
entire amounts so authorized have been previously provided to the Pueblo
pursuant to sections 5 and 6, or placed in the Taos Pueblo Water Development
Fund or the Taos Settlement Fund as directed in subsection (c).
(E)The Legislature of
the State of New Mexico has fully appropriated the funds for the State
contributions as specified in the Settlement Agreement, and those funds have
been deposited in appropriate accounts.
(F)The State of New
Mexico has enacted legislation that amends NMSA 1978, section 72–6–3 to state
that a water use due under a water right secured to the Pueblo under the
Settlement Agreement or the Partial Final Decree may be leased for a term,
including all renewals, not to exceed 99 years, provided that this condition
shall not be construed to require that said amendment state that any State law
based water rights acquired by the Pueblo or by the United States on behalf of
the Pueblo may be leased for said term.
(G)A Partial Final
Decree that sets forth the water rights and contract rights to water to which
the Pueblo is entitled under the Settlement Agreement and this Act and that
substantially conforms to the Settlement Agreement and Attachment 5 thereto has
been approved by the Court and has become final and nonappealable.
(g)The Settlement Agreement shall become enforceable, and the
waivers and releases executed pursuant to section 11 and the limited waiver of
sovereign immunity set forth in section 12(a) shall become effective, as of the
date that the Secretary publishes the notice required by subsection
(f)(1).
(h)
(1)If all of the conditions precedent described in section
(f)(2) have not been fulfilled by December 31, 2016, the Settlement Agreement
shall be null and void, the waivers and releases executed pursuant to section
11 and the sovereign immunity waivers in section 12(a) shall not become
effective, and any unexpended Federal funds, together with any income earned
thereon, and title to any property acquired or constructed with expended
Federal funds, shall be returned to the Federal Government, unless otherwise
agreed to by the Parties in writing and approved by Congress.
(2)Notwithstanding
subsection (h)(1) or any other provision of law, any unexpended Federal funds,
together with any income earned thereon, made available under sections 5(d) and
6(f) and title to any property acquired or constructed with expended Federal
funds made available under sections 5(d) and 6(f) shall be retained by the
Pueblo.
(3)In the event the conditions precedent set forth in
subsection (f)(2) have not been fulfilled by December 31, 2016, the United
States shall be entitled to set off any funds expended or withdrawn from the
amount appropriated pursuant to paragraphs (1) and (2) of subsection (c) or
made available from other authorized sources, together with any interest
accrued, against any claims asserted by the Pueblo against the United States
relating to water rights in the Taos Valley.
11.
(a)Claims by the
pueblo and the United StatesIn return for recognition of the
Pueblo’s water rights and other benefits, including but not limited to the
commitments by non-Pueblo parties, as set forth in the Settlement Agreement and
this Act, the Pueblo, on behalf of itself and its members, and the United
States acting in its capacity as trustee for the Pueblo are authorized to
execute a waiver and release of claims against the parties to New Mexico v.
Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and
7939–BB (U.S. D.N.M.) (consolidated) from—
(1)all claims for
water rights in the Taos Valley that the Pueblo, or the United States acting in
its capacity as trustee for the Pueblo, asserted, or could have asserted, in
any proceeding, including but not limited to in New Mexico v. Abeyta and New
Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.)
(consolidated), up to and including the Enforcement Date, except to the extent
that such rights are recognized in the Settlement Agreement or this Act;
(2)all claims for
water rights, whether for consumptive or nonconsumptive use, in the Rio Grande
mainstream or its tributaries that the Pueblo, or the United States acting in
its capacity as trustee for the Pueblo, asserted or could assert in any water
rights adjudication proceedings except those claims based on Pueblo or United
States ownership of lands or water rights acquired after the Enforcement Date,
provided that nothing in this paragraph shall prevent the Pueblo or the United
States from fully participating in the inter se phase of any such water rights
adjudication proceedings;
(3)all claims for
damages, losses or injuries to water rights or claims of interference with,
diversion or taking of water (including but not limited to claims for injury to
lands resulting from such damages, losses, injuries, interference with,
diversion, or taking) in the Rio Grande mainstream or its tributaries or for
lands within the Taos Valley that accrued at any time up to and including the
Enforcement Date; and
(4)all claims against
the State of New Mexico, its agencies, or employees relating to the negotiation
or the adoption of the Settlement Agreement.
(b)Claims by the
pueblo against the United StatesThe Pueblo, on behalf of itself
and its members, is authorized to execute a waiver and release of—
(1)all claims against
the United States, its agencies, or employees relating to claims for water
rights in or water of the Taos Valley that the United States acting in its
capacity as trustee for the Pueblo asserted, or could have asserted, in any
proceeding, including but not limited to in New Mexico v. Abeyta and New Mexico
v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and 7939–BB (U.S. D.N.M.)
(consolidated);
(2)all claims against
the United States, its agencies, or employees relating to damages, losses, or
injuries to water, water rights, land, or natural resources due to loss of
water or water rights (including but not limited to damages, losses or injuries
to hunting, fishing, gathering, or cultural rights due to loss of water or
water rights, claims relating to interference with, diversion or taking of
water or water rights, or claims relating to failure to protect, acquire,
replace, or develop water, water rights or water infrastructure) in the Rio
Grande mainstream or its tributaries or within the Taos Valley that first
accrued at any time up to and including the Enforcement Date;
(3)all claims against
the United States, its agencies, or employees for an accounting of funds
appropriated by the Act of March 4, 1929 (45 Stat. 1562), the Act of March 4,
1931 (46 Stat. 1552), the Act of June 22, 1936 (49 Stat. 1757), the Act of
August 9, 1937 (50 Stat. 564), and the Act of May 9, 1938 (52 Stat. 291), as
authorized by the Pueblo Lands Act of June 7, 1924 (43 Stat. 636), and the
Pueblo Lands Act of May 31, 1933 (48 Stat. 108), and for breach of trust
relating to funds for water replacement appropriated by said Acts that first
accrued before the date of enactment of this Act;
(4)all claims against
the United States, its agencies, or employees relating to the pending
litigation of claims relating to the Pueblo’s water rights in New Mexico v.
Abeyta and New Mexico v. Arellano, Civil Nos. 7896–BB (U.S.6 D.N.M.) and
7939–BB (U.S. D.N.M.) (consolidated); and
(5)all claims against
the United States, its agencies, or employees relating to the negotiation,
Execution or the adoption of the Settlement Agreement, exhibits thereto, the
Final Decree, or this Act.
(c)Reservation of
rights and retention of claimsNotwithstanding the waivers and
releases authorized in this Act, the Pueblo on behalf of itself and its members
and the United States acting in its capacity as trustee for the Pueblo
retain—
(1)all claims for
enforcement of the Settlement Agreement, the Final Decree, including the
Partial Final Decree, the San Juan-Chama Project contract between the Pueblo
and the United States, or this Act;
(2)all claims against
persons other than the Parties to the Settlement Agreement for damages, losses
or injuries to water rights or claims of interference with, diversion or taking
of water rights (including but not limited to claims for injury to lands
resulting from such damages, losses, injuries, interference with, diversion, or
taking of water rights) within the Taos Valley arising out of activities
occurring outside the Taos Valley or the Taos Valley Stream System;
(3)all rights to use
and protect water rights acquired after the date of enactment of this
Act;
(4)all rights to use
and protect water rights acquired pursuant to State law, to the extent not
inconsistent with the Partial Final Decree and the Settlement Agreement
(including water rights for the land the Pueblo owns in Questa, New
Mexico);
(5)all claims
relating to activities affecting the quality of water including but not limited
to any claims the Pueblo might have under the Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including
but not limited to 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;
(6)all claims
relating to damages, losses, or injuries to land or natural resources not due
to loss of water or water rights (including but not limited to hunting,
fishing, gathering, or cultural rights); and
(7)all rights,
remedies, privileges, immunities, powers, and claims not specifically waived
and released pursuant to this Act and the Settlement Agreement.
(d)Nothing in the Settlement Agreement or this Act—
(1)affects the
ability of the United States acting in its sovereign capacity to take actions
authorized by law, including but not limited to any laws relating to health,
safety, or the environment, including but not limited to the
Federal Water Pollution Control Act
(33 U.S.C. 1251 et
seq.), the Safe Drinking Water Act (42 U.S.C. 300f et
seq.), the Comprehensive
Environmental Response, Compensation, and Liability Act of 1980
(42 U.S.C. 9601 et
seq.), the Solid Waste Disposal
Act (42
U.S.C. 6901 et seq.), and the regulations implementing such
Acts;
(2)affects the
ability of the United States to take actions acting in its capacity as trustee
for any other Indian tribe or allottee;
(3)confers
jurisdiction on any State court to—
(A)interpret Federal
law regarding 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 Federal agency action; or
(4)waives any claim
of a member of the Pueblo in an individual capacity that does not derive from a
right of the Pueblo.
(e)
(1)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
earlier of—
(A)December 31, 2016;
or
(B)the Enforcement
Date.
(2)Nothing in this subsection 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)Nothing
in this subsection precludes the tolling of any period of limitations or any
time-based equitable defense under any other applicable law.
12.Interpretation
and enforcement
(a)Limited waiver
of sovereign immunityUpon and after the Enforcement Date, if any
Party to the Settlement Agreement brings an action in any court of competent
jurisdiction over the subject matter relating only and directly to the
interpretation or enforcement of the Settlement Agreement or this Act, and
names the United States or the Pueblo as a party, then the United States, the
Pueblo, or both may be added as a party to any such action, and any claim by
the United States or the Pueblo to sovereign immunity from the action is
waived, but only for the limited and sole purpose of such interpretation or
enforcement, and no waiver of sovereign immunity is made for any action against
the United States or the Pueblo that seeks money damages.
(b)Subject matter
jurisdiction not affectedNothing in this Act shall be deemed as
conferring, restricting, enlarging, or determining the subject matter
jurisdiction of any court, including the jurisdiction of the court that enters
the Partial Final Decree adjudicating the Pueblo’s water rights.
(c)Regulatory
authority not affectedNothing in this Act shall be deemed to
determine or limit any authority of the State or the Pueblo to regulate or
administer waters or water rights now or in the future.
13.Nothing in the Settlement Agreement or this
Act shall be construed in any way to quantify or otherwise adversely affect the
land and water rights, claims, or entitlements to water of any other Indian
tribe.
Passed the House of
Representatives January 21, 2010.
Lorraine C. Miller,
Clerk.
February 1, 2010
Read twice and placed on the calendar