[Congressional Bills 111th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3563 Introduced in House (IH)]
111th CONGRESS
1st Session
H. R. 3563
To authorize the Crow Tribe of Indians water rights settlement, and for
other purposes.
_______________________________________________________________________
IN THE HOUSE OF REPRESENTATIVES
September 15, 2009
Mr. Rehberg introduced the following bill; which was referred to the
Committee on Natural Resources
_______________________________________________________________________
A BILL
To authorize the Crow Tribe of Indians water rights 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 ``Crow Tribe Water Rights Settlement
Act of 2009''.
SEC. 2. PURPOSES.
The purposes of this Act are--
(1) to achieve a fair, equitable, and final settlement of
claims to water rights in the State of Montana for--
(A) the Crow Tribe; and
(B) the United States for the benefit of the Tribe
and allottees;
(2) to authorize, ratify, and confirm the Crow Tribe-
Montana Water Rights Compact entered into by the Tribe and the
State on June 22, 1999;
(3) to authorize and direct the Secretary of the Interior--
(A) to execute the Crow Tribe-Montana Water Rights
Compact; and
(B) to take any other action necessary to carry out
the Compact in accordance with this Act; and
(4) to authorize the appropriation of funds necessary for
the implementation of the Compact and this Act.
SEC. 3. DEFINITIONS.
In this Act:
(1) Allottee.--The term ``allottee'' means any individual
who holds a beneficial real property interest in an allotment
of Indian land that is--
(A) located within the Reservation or the ceded
strip; and
(B) held in trust by the United States.
(2) Ceded strip.--The term ``ceded strip'' means the area
identified on the map attached as appendix 5 to the Compact.
(3) CIP om&r.--The term ``CIP OM&R'' means--
(A) any recurring or ongoing activity associated
with the day-to-day operation of the Crow Irrigation
Project;
(B) any activity relating to scheduled or
unscheduled maintenance of the Crow Irrigation Project;
and
(C) any activity relating to replacement of a
feature of the Crow Irrigation Project.
(4) Compact.--The term ``Compact'' means the water rights
compact between the Tribe and the State contained in section
85-20-901 of the Montana Code Annotated (2009) (including any
exhibit or part of or amendment to the Compact).
(5) Crow irrigation project.--
(A) In general.--The term ``Crow Irrigation
Project'' means the irrigation project--
(i) authorized by section 31 of the Act of
March 3, 1891 (26 Stat. 1040);
(ii) managed by the Secretary (acting
through the Bureau of Indian Affairs); and
(iii) consisting of the project units of--
(I) Agency;
(II) Bighorn;
(III) Forty Mile;
(IV) Lodge Grass #1;
(V) Lodge Grass #2;
(VI) Pryor;
(VII) Reno;
(VIII) Soap Creek; and
(IX) Upper Little Horn.
(B) Inclusion.--The term ``Crow Irrigation
Project'' includes land held in trust by the United
States for the Tribe and the allottees in the Bozeman
Trail and Two Leggins irrigation districts.
(6) Crow settlement fund.--The term ``Crow Settlement
Fund'' means the fund established by section 11(a).
(7) Economic development.--The term ``Economic
Development'' means any activity the Tribe determines to
further the economic development of the Tribe.
(8) Enforceability date.--The term ``enforceability date''
means the date on which the Secretary publishes in the Federal
Register the statement of findings described in section 10(e).
(9) Final.--The term ``final'' with reference to approval
of the decree described in section 10(e)(1)(A) means--
(A) completion of any direct appeal to the Montana
Supreme Court of a decree by the Montana Water Court
pursuant to section 85-2-235 of the Montana Code
Annotated (2009), including the expiration of time for
filing of any such appeal; or
(B) completion of any appeal to the appropriate
United States Court of Appeals, including the
expiration of time in which a petition for certiorari
may be filed in the United States Supreme Court, denial
of such petition, or issuance of the United States
Supreme Court's mandate, whichever occurs last.
(10) Indian tribe.--The term ``Indian tribe'' has the
meaning given the term in section 4 of the Indian Self-
Determination and Education Assistance Act (25 U.S.C. 450b).
(11) Joint stipulation of settlement.--The term ``joint
stipulation of settlement'' means the joint stipulation of
settlement relating to the civil action styled Crow Tribe of
Indians v. Norton, No. 02-284 (D.D.C. 2006).
(12) MR&I system.--
(A) In general.--The term ``MR&I System'' means the
municipal, rural, and industrial water system of the
Reservation, generally described in the document
entitled ``Crow Indian Reservation Municipal, Rural and
Industrial Water System Engineering Report'' prepared
by HKM Engineering, Inc., and dated July 2008.
(B) Inclusions.--The term ``MR&I System''
includes--
(i) the raw water intake, water treatment
plant, pipelines, storage tanks, pumping
stations, pressure-reducing valves, electrical
transmission facilities, and other items
(including real property and easements
necessary to deliver potable water to the
Reservation) appurtenant to the system
described in subparagraph (A); and
(ii) in descending order of construction
priority--
(I) the Bighorn River Valley
Subsystem; and
(II) the Little Bighorn River
Valley Subsystem.
(13) MR&I system om&r.--The term ``MR&I System OM&R''
means--
(A) any recurring or ongoing activity associated
with the day-to-day operation of the MR&I System;
(B) any activity relating to scheduled or
unscheduled maintenance of the MR&I System; and
(C) any activity relating to replacement of project
features of the MR&I System.
(14) Reservation.--The term ``Reservation'' means the area
identified on the map attached as appendix 4 to the Compact.
(15) Secretary.--The term ``Secretary'' means the Secretary
of the Interior.
(16) State.--The term ``State'' means the State of Montana.
(17) Tribal compact administration.--The term ``Tribal
Compact Administration'' means any activity relating to--
(A) the development or enactment by the Tribe of
the tribal water code;
(B) establishment by the Tribe of a water resources
department; and
(C) the operation by the Tribe of that water
resources department (or a successor agency) during the
10-year period beginning on the date of establishment
of the department.
(18) Tribal water code.--The term ``tribal water code''
means a water code adopted by the Tribe in accordance with
section 7(f).
(19) Tribal water rights.--The term ``tribal water rights''
means--
(A) the water rights of the Tribe described in
article III of the Compact; and
(B) the water rights provided to the Tribe under
section 8.
(20) Tribe.--The term ``Tribe'' means the Crow Tribe of
Indians of the State of Montana on behalf of itself and its
members (but not its members in their capacities as allottees).
(21) Yellowtail dam om&r.--The term ``Yellowtail Dam OM&R''
means the charges levied by the Bureau of Reclamation for
operation, maintenance, and repair costs in association with
storage contracts for water stored in Bighorn Lake.
(22) Water development project.--The term ``Water
Development Project'' means any future potable water system
developed by the Tribe to serve the other portions of the
Reservation, or such water development projects as the Tribe
determines to be appropriate to fulfill the water needs of its
members.
SEC. 4. RATIFICATION OF COMPACT.
(a) In General.--Except as modified by this Act, and to the extent
the Compact does not conflict with this Act, the Compact is authorized,
ratified, and confirmed. To the extent amendments are executed to make
the Compact consistent with this Act, such amendments are also
authorized, ratified, and confirmed.
(b) Execution of Compact.--To the extent that the Compact does not
conflict with this Act, the Secretary is directed to and shall promptly
execute the Compact, including all exhibits to or parts of the Compact
requiring the signature of the Secretary. Nothing herein precludes the
Secretary from approving modifications to appendices or exhibits to the
Compact not inconsistent with this Act, to the extent such
modifications do not otherwise require Congressional approval pursuant
to the Trade and Intercourse Act, 25 U.S.C. 177, or pursuant to other
Federal statute.
(c) National Environmental Policy Act of 1969.--
(1) Environmental compliance.--In implementing the Compact,
the Secretary shall promptly comply with all applicable aspects
of the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq.), the Endangered Species Act of 1973 (16 U.S.C.
1531 et seq.), and all other applicable environmental Acts and
regulations.
(2) Execution of the compact.--Execution of the Compact by
the Secretary under this section shall not constitute a major
Federal action under the National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.). The Secretary is directed to
carry out all Federal compliance necessary to implement the
Compact.
SEC. 5. REHABILITATION AND IMPROVEMENT OF THE CROW IRRIGATION PROJECT.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall carry out such activities as are necessary to
rehabilitate and improve the water diversion and delivery features of
the Crow Irrigation Project, in accordance with an agreement to be
negotiated between the Secretary and the Tribe.
(b) Lead Agency.--The Bureau of Reclamation shall serve as the lead
agency with respect to any activity to rehabilitate or improve the
water diversion or delivery features of the Crow Irrigation Project.
(c) Scope.--The scope of the rehabilitation and improvement under
this section shall be as described in the document entitled
``Engineering Evaluation of Existing Conditions, Crow Agency
Rehabilitation Study'' prepared by HKM Engineering, Inc., and dated
July 2008.
(d) Costs.--Costs incurred by the Secretary in carrying out an
agreement under subsection (a) that are allocated to the users of the
tribal water rights shall be nonreimbursable.
(e) Funding.--The Secretary's obligation pursuant to this section
shall not exceed $160,653,000, except that the total amount of
$160,653,000 shall be increased or decreased, as appropriate, based on
ordinary fluctuations from May 1, 2008, in construction cost indices
applicable to the types of construction involved in the rehabilitation
and improvement.
(f) Agreement.--At the request of the Tribe, in accordance with
applicable Federal law, the Secretary shall enter into an agreement
with the Tribe to implement the provisions of this section by which the
Tribe shall plan, design, and construct any or all of the
rehabilitation and improvement required by this section.
SEC. 6. DESIGN AND CONSTRUCTION OF MR&I SYSTEM.
(a) In General.--The Secretary, acting through the Commissioner of
Reclamation, shall carry out such activities as are necessary to design
and construct the water diversion and delivery features of the MR&I
System, in accordance with an agreement to be negotiated between the
Secretary and the Tribe.
(b) Lead Agency.--The Bureau of Reclamation shall serve as the lead
agency with respect to any activity to design and construct the water
diversion and delivery features of the MR&I System.
(c) Scope.--The scope of the design and construction under this
section shall be as described in the document entitled ``Crow Indian
Reservation Municipal, Rural and Industrial Water System Engineering
Report'' prepared by HKM Engineering, Inc., and dated July 2008.
(d) Costs to Tribe.--Costs incurred by the Secretary in carrying
out an agreement under subsection (a) that are allocated to the Tribe
shall be nonreimbursable.
(e) Funding.--The Secretary's obligation pursuant to this section
shall not exceed $200,840,000, except that the total amount of
$200,840,000 shall be increased or decreased, as appropriate, based on
ordinary fluctuations from May 1, 2008, in construction cost indices
applicable to the types of construction involved in the design and
construction.
(f) Agreement.--At the request of the Tribe, in accordance with
applicable Federal law, the Secretary shall enter into an agreement
with the Tribe to implement the provisions of this section by which the
Tribe shall plan, design, and construct any or all of the design and
construction required by this section.
(g) Conveyance of Title to MR&I System Facilities.--
(1) In general.--The Secretary shall convey title to each
MR&I System facility or section of a MR&I System facility
authorized under subsection (a) (including any appropriate
interests in land) to the Tribe after completion of
construction of a MR&I System facility or a section of a MR&I
System facility that is operating and delivering water.
(2) Effect of conveyance.--The conveyance of title to each
MR&I System facility shall not affect the application of the
Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.)
relating to the use of the water associated with the MR&I
System.
(3) Liability.--
(A) In general.--Effective on the date of the
conveyance authorized by this subsection, the United
States shall not be held liable by any court for
damages of any kind arising out of any act, omission,
or occurrence relating to the land, buildings, or
facilities conveyed under this subsection, other than
damages caused by acts of negligence committed by the
United States, or by employees or agents of the United
States, prior to the date of conveyance.
(B) Tort claims.--Nothing in this section increases
the liability of the United States beyond the liability
provided in chapter 171 of title 28, United States Code
(commonly known as the ``Federal Tort Claims Act'').
(4) Notice of proposed conveyance.--Not later than 45 days
before the date of a proposed conveyance of title to any MR&I
System facility, the Secretary shall submit to the Committee on
Natural Resources of the House of Representatives and to the
Committee on Energy and Natural Resources of the Senate notice
of the conveyance of each MR&I System facility.
(5) Obligation of the federal government after
completion.--After construction of the MR&I System is completed
and the amounts required to be deposited in the MR&I System
OM&R account have been deposited under section 11 the Federal
Government shall have no obligation to pay for the operation,
maintenance, and replacement costs of the MR&I System.
SEC. 7. TRIBAL WATER RIGHTS.
(a) Intent of Congress.--It is the intent of Congress to provide to
each allottee benefits that are equivalent to or exceed the benefits
allottees currently possess, taking into consideration--
(1) the potential risks, cost, and time delay associated
with litigation that would be resolved by the Compact and this
Act;
(2) the availability of funding under this Act and from
other sources;
(3) the availability of water from the tribal water rights;
and
(4) the applicability of section 7 of the Act of February
8, 1887 (25 U.S.C. 381) and this Act to protect the interests
of allottees.
(b) Confirmation of Tribal Water Rights.--
(1) In general.--The tribal water rights are ratified,
confirmed, and declared to be valid.
(2) Use.--Use of the tribal water rights shall be subject
to the terms and conditions established by the Compact.
(c) Holding in Trust.--The tribal water rights shall be held in
trust by the United States for the use and benefit of the Tribe, and
the allottees in accordance with this section.
(d) Allottees.--As specified in and provided for in this Act:
(1) Applicability of act of february 8, 1887.--The
provisions of section 7 of the Act of February 8, 1887 (25
U.S.C. 381), relating to the use of water for irrigation
purposes shall apply to the tribal water rights.
(2) Entitlement to water.--Any entitlement to water of an
allottee under Federal law shall be satisfied from the tribal
water rights.
(3) Allocations.--Allottees shall be entitled to a just and
equitable allocation of water for irrigation purposes.
(4) Satisfaction of claims.--The water rights and other
benefits granted by this Act shall be considered full
satisfaction of any claim of an allottee waived pursuant to
section 10(a)(2).
(5) Exhaustion of remedies.--Before asserting any claim
against the United States under section 7 of the Act of
February 8, 1887 (25 U.S.C. 381), or any other applicable law,
an allottee shall exhaust remedies available under the tribal
water code or other applicable tribal law.
(6) Claims.--Following exhaustion of remedies available
under the tribal water code or other applicable tribal law, an
allottee may seek relief under section 7 of the Act of February
8, 1887 (25 U.S.C. 381), or other applicable law.
(7) Authority.--The Secretary shall have the authority to
protect allottees' rights as specified in this section.
(e) Authority of Tribe.--
(1) In general.--Except as provided in paragraph (2), the
Tribe shall have authority to allocate, distribute, and lease
the tribal water rights--
(A) in accordance with the Compact; and
(B) subject to approval of the Secretary of the
tribal water code under subsection (f)(3)(B).
(2) Leases by allottees.--Notwithstanding paragraph (1), an
allottee may lease any interest in land held by the allottee,
together with any water right determined to be appurtenant to
the interest in land.
(f) Tribal Water Code.--
(1) In general.--Notwithstanding the time period set forth
in article IV(A)(2)(b) of the Compact, not later than 3 years
after the date on which the Tribe ratifies the Compact as set
forth in section 10(e)(1)(E), the Tribe shall enact a tribal
water code, that provides for--
(A) the management, regulation and governance of
all uses of the tribal water rights in accordance with
the Compact; and
(B) establishment by the Tribe of conditions,
permit requirements, and other limitations relating to
the storage, recovery, and use of the tribal water
rights in accordance with the Compact.
(2) Inclusions.--Subject to the approval of the Secretary,
the tribal water code shall provide that--
(A) tribal allocations of water to allottees shall
be satisfied with water from the tribal water rights;
(B) charges for delivery of water for irrigation
purposes for allottees shall be assessed on a just and
equitable basis;
(C) there is a process by which an allottee may
request that the Tribe provide water for irrigation use
in accordance with this Act;
(D) there is a due process system for the
consideration and determination by the Tribe of any
request by an allottee, or any successor in interest to
an allottee, for an allocation of such water for
irrigation purposes on allotted land, including a
process for--
(i) appeal and adjudication of any denied
or disputed distribution of water; and
(ii) resolution of any contested
administrative decision; and
(E) there is a requirement that any allottee with a
claim relating to the enforcement of rights of the
allottee under the tribal water code or relating to the
amount of water allocated to land of the allottee must
first exhaust remedies available to the allottee under
tribal law and the tribal water code before initiating
an action against the United States or petitioning the
Secretary pursuant to subsection (d)(6).
(3) Action by secretary.--
(A) In general.--The Secretary shall administer the
tribal water rights until the tribal water code is
enacted in accordance with paragraph (1) and those
provisions requiring approval pursuant to paragraph
(2).
(B) Approval.--The tribal water code shall not be
valid unless--
(i) the provisions of the tribal water code
required by paragraph (2) are approved by the
Secretary; and
(ii) each amendment to the tribal water
code that affects a right of an allottee is
approved by the Secretary.
(C) Approval period.--
(i) In general.--Except as provided by
clause (ii), if the Secretary does not approve
or disapprove the tribal water code before the
date that is 180 days after the date on which
the tribal water code is submitted to the
Secretary for approval, the tribal water code
shall be considered to have been approved by
the Secretary to the extent that it is not
inconsistent with the Compact or this Act.
(ii) Mutual extension of approval period.--
The tribal water code may not be considered to
have been approved by the Secretary under
clause (i) if the Secretary and the Tribe agree
to extend the approval period.
(g) Effect.--Except as otherwise specifically provided in this
section, nothing in this Act--
(1) authorizes any action by an allottee against any
individual or entity, or against the Tribe, under Federal,
State, tribal, or local law; or
(2) alters or affects the status of any action pursuant to
section 1491(a) of title 28, United States Code.
SEC. 8. STORAGE ALLOCATION FROM BIGHORN LAKE.
(a) Storage Allocation to Tribe.--
(1) In general.--As described in and subject to article
III(A)(1)(b) of the Compact, the Secretary shall allocate to
the Tribe 300,000 acre-feet per year of water stored in Bighorn
Lake, Yellowtail Unit, Lower Bighorn Division, Pick Sloan
Missouri Basin Program, Montana, under a water right held by
the United States and managed by the Bureau of Reclamation, as
measured at the outlet works of Yellowtail Dam, including--
(A) not more than 150,000 acre-feet per year of the
allocation, which may be used in addition to the
natural flow right described in article III(A)(1)(a) of
the Compact; and
(B) 150,000 acre-feet per year of the allocation,
which may be used only as supplemental water for the
natural flow right described in article III(A)(1)(a) of
the Compact for use in times of natural flow shortage.
(2) Treatment.--
(A) In general.--The allocation under paragraph (1)
shall be considered to be part of the tribal water
rights.
(B) Priority date.--The priority date of the
allocation under paragraph (1) shall be the priority
date of the water right held by the Bureau of
Reclamation.
(C) Administration.--
(i) In general.--The Tribe shall administer
the water allocated under paragraph (1) in
accordance with the Compact.
(ii) Temporary transfer.--In accordance
with subsection (c), the Tribe may temporarily
transfer by service contract, lease, exchange,
or other agreement, not more than 50,000 acre-
feet of water allocated under paragraph (1)(A)
off the Reservation, subject to the approval of
the Secretary and the requirements of the
Compact.
(b) Allocation Agreement.--
(1) In general.--As a condition of receiving an allocation
under this section, the Tribe shall enter into an allocation
agreement with the Secretary to establish the terms and
conditions of the allocation, in accordance with the terms and
conditions of the Compact and this Act.
(2) Inclusions.--The allocation agreement under paragraph
(1) shall include, among other things, a provision that--
(A) it is without limit as to term;
(B) the Tribe, and not the United States, shall be
entitled to all consideration due to the Tribe under
any lease, contract, or agreement the Tribe may enter
into pursuant to the authority in subsection (c);
(C) the United States shall have no trust
obligation or other obligation to monitor, administer,
or account for--
(i) any funds received by the Tribe as
consideration under any lease, contract, or
agreement the Tribe may enter into pursuant to
the authority in subsection (c); or
(ii) the expenditure of such funds;
(D) if the facilities at Yellowtail Dam are
significantly reduced or are anticipated to be
significantly reduced for an extended period of time,
the Tribe shall have the same storage rights as other
storage contractors with respect to the allocation
under this section;
(E) the costs associated with the construction of
the storage facilities at Yellowtail Dam allocable to
the Tribe--
(i) shall be nonreimbursable; and
(ii) shall be excluded from any repayment
obligation of the Tribe; and
(F) no water service capital charges shall be due
or payable for any water allocated to the Tribe
pursuant to this Act and the allocation agreement,
regardless of whether that water is delivered for use
by the Tribe or is delivered under any leases,
contracts, or agreements the Tribe may enter into
pursuant to the authority in subsection (c).
(c) Temporary Transfer for Use Off Reservation.--
(1) In general.--Notwithstanding any other provision of
statutory or common law, subject to paragraph (2), on approval
of the Secretary and subject to the terms and conditions of the
Compact, the Tribe may enter into a service contract, lease,
exchange, or other agreement providing for the temporary
delivery, use, or transfer of not more than 50,000 acre-feet
per year of water allocated under subsection (a)(1)(A) for use
off the Reservation.
(2) Requirement.--An agreement under paragraph (1) shall
not permanently alienate any portion of the water allocated
under subsection (a)(1)(A).
(d) Remaining Storage.--
(1) In general.--Upon the date of enactment of this Act,
water in Bighorn Lake shall be considered to be fully allocated
and no further storage allocations shall be made by the
Secretary.
(2) Effect of subsection.--Nothing in this subsection
prevents the Secretary from renewing the storage contract with
Pennsylvania Power and Light Company consistent with the
allocation to Pennsylvania Power and Light Company in existence
on the date of enactment of this Act, or entering into future
agreements with the Northern Cheyenne or Crow Tribes
facilitating the Northern Cheyenne and Crow Tribes' use of
their allocations of water from Bighorn Lake.
SEC. 9. SATISFACTION OF CLAIMS.
(a) In General.--The benefits provided to the Tribe and the
allottees under the Compact and this Act shall satisfy all claims of
the Tribe and the allottees waived and released pursuant to section 10.
(b) Satisfaction of Claims Relating to Crow Irrigation Project.--
(1) In general.--Subject to paragraph (2), the funds
authorized to be appropriated under subsections (a) and (h) of
section 14 shall be used to satisfy any claim of the Tribe or
the allottees with respect to the appropriation of funds for
the rehabilitation, expansion, improvement, repair, operation,
or maintenance of the Crow Irrigation Project. Upon complete
appropriation of funds authorized by subsections (a) and (h) of
section 14 any claim of the Tribe or the allottees with respect
to the appropriation of funds for the rehabilitation,
expansion, improvement, repair, operation, or maintenance of
the Crow Irrigation Project shall be deemed to have been
satisfied.
(2) Effect.--Except as provided in section 5, nothing in
this Act affects any applicable law (including regulations)
under which the United States collects irrigation assessments
from--
(A) non-Indian users of the Crow Irrigation
Project; and
(B) the Tribe, tribal entities and
instrumentalities, tribal members, allottees, and
entities owned by the Tribe, tribal members, or
allottees to the extent that annual irrigation
assessments assessed on such tribal water users exceed
the amount of funds available under section 11(d)(3)(F)
for costs relating to CIP OM&R.
(c) No Recognition of Water Rights.--Notwithstanding subsection (a)
and except as provided in section 7(d), nothing in this Act recognizes
or establishes any right of a member of the Tribe or an allottee to
water within the Reservation or the ceded strip.
SEC. 10. WAIVERS AND RELEASES OF CLAIMS.
(a) In General.--
(1) Waiver and release of claims by the tribe and the
united states acting in its capacity as trustee for the
tribe.--Subject to the retention of rights set forth in
subsection (c), in return for recognition of the tribal water
rights and other benefits as set forth in the Compact and this
Act, the Tribe, on behalf of itself and its members (but not
tribal members in their capacities as allottees), and the
United States acting in its capacity as trustee for the Tribe
and its members (but not tribal members in their capacities as
allottees), are authorized and directed, to execute a waiver
and release of all claims for water rights within the State
that the Tribe, or the United States acting in its capacity as
trustee for the Tribe, asserted, or could have asserted, in any
proceeding, including but not limited to the Montana stream
adjudication, up to and including the enforceability date,
except to the extent that such rights are recognized in the
Compact as amended by this Act.
(2) Waiver and release of claims by the united states
acting in its capacity as trustee for allottees.--Subject to
the retention of rights set forth in subsection (c), in return
for recognition of the Tribe's water rights and other benefits
as set forth in the Compact and this Act, the United States
acting in its capacity as trustee for allottees is authorized
and directed to execute a waiver and release of all claims for
water rights within the Reservation and the ceded strip that
the United States acting in its capacity as trustee for the
allottees asserted, or could have asserted, in any proceeding,
including but not limited to the Montana stream adjudication,
up to and including the enforceability date, except to the
extent that such rights are recognized in the Compact or this
Act.
(3) Waiver and release of claims by the tribe against the
united states.--Subject to the retention of rights set forth in
subsection (c), the Tribe, on behalf of itself and its members,
is authorized to execute a waiver and release of--
(A) all claims against the United States, its
agencies, or employees, relating to claims for water
rights within the State that the United States acting
in its capacity as trustee for the Tribe asserted, or
could have asserted, in any proceeding, including but
not limited to the Montana stream adjudication, except
to the extent that such rights are recognized as tribal
water rights in this Act, including all claims relating
in any manner to the claims reserved against the United
States, its agencies or employees in section 4(e) of
the joint stipulation of settlement;
(B) 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 claims relating to failure to protect,
acquire, replace, or develop water, water rights or
water infrastructure) within the State that first
accrued at any time up to and including the
enforceability date, including all claims relating to
the failure to establish or provide a municipal rural
or industrial water delivery system on the Reservation
and all claims relating to the failure to provide for,
operate or maintain the Crow Irrigation Project, or any
other irrigation system or irrigation project on the
Reservation;
(C) all claims against the United States, its
agencies, or employees relating to the pending
litigation of claims relating to the Tribe's water
rights in the State;
(D) all claims against the United States, its
agencies, or employees relating to the negotiation,
execution, or the adoption of the Compact, exhibits
thereto, or this Act;
(E) subject to the retention of rights set forth in
subsection (c), all claims for monetary damages that
first accrued at any time up to and including the
enforceability date with respect to--
(i) the failure to recognize or enforce the
Tribe's claim of title to lands that are
created by the movement of the Bighorn River;
and
(ii) the failure to make productive use of
those lands created by the movement of the
Bighorn River to which the Tribe has claimed
title;
(F) all claims that first accrued at any time up to
and including the enforceability date arising from the
taking or acquisition of the Tribe's land or resources
for the construction of the Yellowtail Dam;
(G) all claims that first accrued at any time up to
and including the enforceability date relating to the
construction and operation of Yellowtail Dam and the
management of Bighorn Lake; and
(H) all claims that first accrued at any time up to
and including the enforceability date relating to the
generation of power from Yellowtail Dam or the lack
thereof.
(b) Effectiveness of Waivers and Releases.--The waivers under
subsection (a) shall take effect on the enforceability date.
(c) Reservation of Rights and Retention of Claims.--Notwithstanding
the waivers and releases authorized in this Act, the Tribe on behalf of
itself and its members and the United States acting in its capacity as
trustee for the Tribe retain--
(1) all claims for enforcement of the Compact, any final
decree, or this Act;
(2) all rights 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 but not limited to any claims the Tribe
might have under Comprehensive Environmental Response,
Compensation, and Liability Act (including but not limited to
claims for damages to natural resources), the Safe Drinking
Water Act, the Clean Water Act, and the regulations
implementing these Acts;
(4) 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);
(5) all rights, remedies, privileges, immunities, and
powers not specifically waived and released pursuant to this
Act or article VII(E) of the Compact;
(6) all claims against any person or entity other than the
United States, including claims for monetary damages, with
respect to--
(A) the Tribe's claim of title to lands that are
created by the movement of the Bighorn River; and
(B) the productive use of those lands created by
the movement of the Bighorn River to which the Tribe
has claimed title; and
(7) all claims that first accrued after the enforceability
date with respect to claims otherwise waived in accordance with
subsection (a)(3)(B), and (E) through (H), inclusive.
(d) Effect of Compact and Act.--Nothing in the Compact 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 Clean Water Act,
the Safe Drinking Water Act, the Comprehensive Environmental
Response, Compensation, and Liability Act, Resource
Conservation and Recovery Act, 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 of any other Indian tribe;
(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; and
(B) conduct judicial review of Federal agency
action.
(4) waives any claim of a member of the Tribe in an
individual capacity that does not derive from a right of the
Tribe; or
(5) revives any claims waived by the Tribe in the joint
stipulation of settlement.
(e) Enforceability Date.--
(1) In general.--The enforceability date shall be the date
on which the Secretary publishes in the Federal Register a
statement of findings that--
(A) the Montana Water Court has issued a final
judgment and decree approving the Compact, or if the
Montana Water Court is found to lack jurisdiction, the
United States District Court of jurisdiction has
approved the Compact as a consent decree and such
approval is final;
(B) $197,877,000 has been deposited in the Crow
Settlement Fund;
(C) the Secretary has fulfilled his obligations to
negotiate an agreement with the Tribe in accordance
with sections 5(a) and 6(a);
(D) the State has appropriated and paid into an
interest-bearing escrow account any payments then due
to the Tribe under the Compact;
(E) the Tribe has ratified the Compact by
submitting the Act and the Compact to a vote by the
tribal membership for approval or disapproval and the
tribal membership has voted to approve the Act and the
Compact by a majority of votes cast on the day of the
vote, as certified by the Secretary and the Tribe;
(F) the Secretary has fulfilled the requirements of
section 8(a); and
(G) the waivers and releases authorized and set
forth in subsection (a) have been executed by the Tribe
and the Secretary.
(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 to carry out this Act
are appropriated.
(2) Effect of subsection.--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.
SEC. 11. CROW SETTLEMENT FUND.
(a) Establishment.--There is established in the Treasury of the
United States the Crow Settlement Fund, consisting of such amounts as
are deposited in the fund under subsections (c) through (h) of section
14.
(b) Accounts of Crow Settlement Fund.--The Secretary shall
establish in the Crow Settlement Fund the following accounts:
(1) The Tribal Compact Administration account, consisting
of amounts authorized pursuant to section 14(c).
(2) The Economic Development account, consisting of amounts
authorized pursuant to section 14(d).
(3) The Water Development Projects account, consisting of
amounts authorized pursuant to section 14(e).
(4) The MR&I System OM&R account, consisting of amounts
authorized pursuant to section 14(f).
(5) The Yellowtail Dam OM&R account, consisting of amounts
authorized pursuant to section 14(g).
(6) The CIP OM&R account, consisting of amounts authorized
pursuant to section 14(h).
(c) Deposits to Crow Settlement Fund.--
(1) In general.--The Secretary of the Treasury shall
promptly deposit in the Crow Settlement Fund any amounts
appropriated for that purpose.
(2) Deposits to accounts.--The Secretary of the Treasury
shall deposit amounts in the accounts of the Crow Settlement
Fund established under subsection (b) in descending order of
priority, with highest priority given to the Tribal Compact
Administration account established under subsection (b)(1).
(d) Management.--
(1) In general.--The Secretary shall manage the Crow
Settlement Fund, make investments from the Crow Settlement
Fund, and make monies available from the Crow Settlement Fund
for distribution to the Tribe consistent with the American
Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001
et seq.) (referred to in this subsection as the ``Trust Fund
Reform Act'').
(2) Investment of crow settlement fund.--Upon the
enforceability date the Secretary shall invest amounts in the
Crow Settlement Fund in accordance with--
(A) the Act of April 1, 1880 (25 U.S.C. 161);
(B) the first section of the Act of June 24, 1938
(25 U.S.C. 162a);
(C) the obligations of Federal corporations and
Federal Government-sponsored entities the charter
documents of which provide that the obligations of the
entities are lawful investments for federally managed
funds, including--
(i) the obligations of the United States
Postal Service described in section 2005 of
title 39, United States Code;
(ii) bonds and other obligations of the
Tennessee Valley Authority described in section
15d of the Tennessee Valley Authority Act of
1933 (16 U.S.C. 831n-4);
(iii) mortgages, obligations, and other
securities of the Federal Home Loan Mortgage
Corporation described in section 303 of the
Federal Home Loan Mortgage Corporation Act (12
U.S.C. 1452); and
(iv) bonds, notes, and debentures of the
Commodity Credit Corporation described in
section 4 of the Act of March 8, 1938 (15
U.S.C. 713a-4); and
(D) the obligations referred to in section 201 of
the Social Security Act (42 U.S.C. 401).
(3) Distributions from crow settlement fund.--
(A) In general.--Funds from the Crow Settlement
Fund shall be used for each purpose described in
subparagraphs (B) through (G).
(B) Tribal compact administration account.--The
Tribal Compact Administration Account shall be used for
expenditures by the Tribe for Tribal Compact
Administration, in accordance with the definition of
Tribal Compact Administration under section 3.
(C) Economic development account.--The Economic
Development Account shall be used for expenditures by
the Tribe for economic development, in accordance with
the definition of Economic Development under section 3.
(D) Water development project account.--The Water
Development Project Account shall be used for
expenditures by the Tribe for 1 or more water
development projects, in accordance with the definition
of Water Development Project under section 3.
(E) Yellowtail dam om&r account.--Interest accrued
on the funds in the Yellowtail Dam OM&R Account in the
prior fiscal year shall be used for Yellowtail Dam OM&R
costs in the subsequent year. The interest shall be
used to reduce the Yellowtail Dam OM&R costs to all
tribal water users on a proportional basis for that
year.
(F) CIP om&r account.--
(i) In general.--Interest accrued on the
funds in the CIP OM&R Account in the prior
fiscal year shall be used for CIP OM&R costs in
the subsequent year.
(ii) Reduction of costs to tribal water
users.--
(I) In general.--Subject to
subclause (II), the interest described
in clause (i) shall be used to reduce
the CIP OM&R costs to all tribal water
users on a proportional basis for that
year.
(II) Limitation on use of funds.--
Interest accrued on the funds in the
CIP OM&R Account shall only be used to
pay irrigation assessments for the
Tribe, tribal entities and
instrumentalities, tribal members,
allottees, and entities owned by the
Tribe, tribal members, or allottees.
(G) MR&I system om&r account.--
(i) In general.--Interest accrued on the
funds from the MR&I System OM&R Account in the
prior fiscal year shall be used for MR&I System
OM&R costs in the subsequent year.
(ii) Reduction of costs to tribal water
users.--
(I) In general.--Subject to
subclause (II), the interest described
in clause (i) shall be used to reduce
the MR&I System OM&R costs to all
tribal water users on a proportional
basis for that year.
(II) Limitation on use of funds.--
The funds from the MR&I System OM&R
Account shall only be used to reduce
water charges for water used by the
Tribe, tribal entities and
instrumentalities, tribal members,
allottees, and entities owned by the
Tribe, tribal members, or allottees.
(4) Withdrawals by tribe.--
(A) In general.--The Tribe may withdraw any portion
of amounts in the Crow Settlement Fund on approval by
the Secretary of a tribal management plan in accordance
with the Trust Fund Reform Act.
(B) Requirements.--
(i) In general.--In addition to the
requirements under the Trust Fund Reform Act,
the tribal management plan of the Tribe under
subparagraph (A) shall require that the Tribe
spend any amounts withdrawn from the Crow
Settlement Fund in accordance with this Act.
(ii) Enforcement.--The Secretary may carry
out such judicial or administrative actions as
the Secretary determines to be necessary to
enforce a tribal management plan to ensure that
amounts withdrawn by the Tribe from the Crow
Settlement Fund under this paragraph are used
in accordance with this Act.
(C) Liability.--The Secretary and the Secretary of
the Treasury shall not be liable for the expenditure or
investment of amounts withdrawn from the Crow
Settlement Fund by the Tribe under this paragraph.
(D) Expenditure plan.--
(i) In general.--For each fiscal year, the
Tribe shall submit to the Secretary for
approval an expenditure plan for any portion of
the amounts described in subparagraph (A) that
the Tribe elects not to withdraw under this
paragraph during the fiscal year.
(ii) Inclusion.--An expenditure plan under
clause (i) shall include a description of the
manner in which, and the purposes for which,
funds of the Tribe remaining in the Crow
Settlement Fund will be used during subsequent
fiscal years.
(iii) Approval.--On receipt of an
expenditure plan under clause (i), the
Secretary shall approve the plan if the
Secretary determines that the plan is--
(I) reasonable; and
(II) consistent with this Act.
(5) Annual reports.--The Tribe shall submit to the
Secretary annual reports describing each expenditure by the
Tribe of amounts in the Crow Settlement Fund during the
preceding calendar year.
(6) Certain per capita distributions prohibited.--No amount
in the Crow Settlement Fund shall be distributed to any member
of the Tribe on a per capita basis.
(e) Availability.--
(1) In general.--Except as provided in paragraph (2), the
amounts in the Crow Settlement Fund shall be available for use
by the Secretary and withdrawal by the Tribe beginning on the
enforceability date.
(2) Exception.--The amounts made available under section
14(c) shall be available for use by the Secretary and
withdrawal by the Tribe beginning on the date on which the
Tribe ratifies the Compact as provided in section 10(e)(1)(E).
(f) State Contribution.--The State contribution shall be provided
in accordance with article VI(A) of the Compact.
SEC. 12. YELLOWTAIL DAM, MONTANA.
(a) Streamflow and Lake Level Management Plan.--
(1) Nothing in the Compact or the Streamflow and Lake Level
Management Plan referred to in article III(A)(7) of the
Compact--
(A) limits the discretion of the Secretary under
the section 4F of that plan; or
(B) requires the Secretary to give priority to any
factor described in section 4F of the plan over any
other factor described in that section.
(2) Bighorn Lake water management, including the Streamflow
and Lake Level Management Plan, is a Federal activity and
review and enforcement of any water management decisions shall
be as provided by Federal law.
(3) The Streamflow and Lake Level Management Plan referred
to in and part of the Compact shall be interpreted to clearly
reflect paragraphs (1) and (2).
(4) Notwithstanding any term (including any defined term)
or provision in the Streamflow and Lake Level Management Plan,
for purposes of this Act, the Compact, and the Streamflow and
Lake Level Management Plan, any requirement in that Plan that
the Crow Tribe dedicate a specified percentage, portion, or
number of acre feet of water per year of the tribal water
rights to instream flow means, and is limited in its meaning
and effect to, an obligation on the part of the Crow Tribe to
withhold from development or otherwise refrain from diverting
or removing from the Bighorn River the specified quantity of
water for the duration, at the locations, and under the
conditions set forth in the applicable requirement.
(b) Power Generation.--
(1) Notwithstanding any other provision of law, the Tribe
shall have the exclusive right to develop and market power
generation as a water development project on the Yellowtail
Afterbay Dam.
(2) The Bureau of Reclamation shall cooperate with the
Tribe on such project.
(3) Any hydroelectric power generated under this provision
shall be used or marketed by the Tribe.
(4) The Tribe shall retain any revenues from the sale of
hydroelectric power generated under this provision.
(5) The United States shall have no trust obligation to
monitor, administer, or account for the revenues received by
the Tribe, or the expenditure of the revenues.
(c) Consultation With Tribe.--The Bureau of Reclamation shall
consult with the Tribe on at least a quarterly basis on all issues
relating to the Bureau's management of Yellowtail Dam.
(d) Amendments to Compact and Plan.--The provisions of subsection
(a) apply to any amendment to--
(1) the Compact; or
(2) the Streamflow and Lake Level Management Plan.
SEC. 13. MISCELLANEOUS PROVISIONS.
(a) Waiver of Sovereign Immunity by the United States.--Except as
provided in subsections (a) through (c) of section 208 of the
Department of Justice Appropriation Act, 1953 (43 U.S.C. 666), nothing
in this Act waives the sovereign immunity of the United States.
(b) Other Tribes Not Adversely Affected.--Nothing in this Act
quantifies or diminishes any land or water right, or any claim or
entitlement to land or water, of an Indian tribe, band, or community
other than the Tribe.
(c) Limitation on Claims for Reimbursement.--With respect to Indian
land within the Reservation or the ceded strip--
(1) the United States shall not submit against any Indian-
owned land located within the Reservation or the ceded strip
any claim for reimbursement of the cost to the United States of
carrying out this Act and the Compact; and
(2) no assessment of any Indian-owned land located within
the Reservation or the ceded strip shall be made regarding that
cost.
(d) Limitation on Liability of United States.--
(1) In general.--The United States has no trust or other
obligation--
(A) to monitor, administer, or account for, in any
manner, any funds provided to the Tribe by any party to
the Compact other than the United States; or
(B) to review or approve any expenditure of those
funds.
(2) Indemnification.--The Tribe shall indemnify the United
States, and hold the United States harmless, with respect to
all claims (including claims for takings or breach of trust)
arising from the receipt or expenditure of amounts described in
paragraph (1)(A).
(e) Effect on Current Law.--Nothing in this section affects any
provision of law (including regulations) in effect on the day before
the date of enactment of this Act with respect to preenforcement review
of any Federal environmental enforcement action.
(f) Limitations on Effect.--
(1) In general.--Nothing in this Act, the Compact, or the
Streamflow and Lake Level Management Plan referred to in
article III(A)(7) of the Compact--
(A) limits, expands, alters, or otherwise affects--
(i) the meaning, interpretation,
implementation, application, or effect of any
article, provision, or term of the Yellowstone
River Compact;
(ii) any right, requirement, or obligation
under the Yellowstone River Compact;
(iii) any allocation (or manner of
determining any allocation) of water under the
Yellowstone River Compact; or
(iv) any present or future claim, defense,
or other position asserted in any legal,
administrative, or other proceeding arising
under or relating to the Yellowstone River
Compact (including the original proceeding
between the State of Montana and the State of
Wyoming currently pending before the United
States Supreme Court);
(B) makes an allocation or apportionment of water
between or among states;
(C) addresses or implies whether, how, or to what
extent (if any)--
(i) the tribal water rights or any portion
of the tribal water rights should be accounted
for as part of or otherwise charged against any
allocation of water made to a state under the
provisions of the Yellowstone River Compact; or
(ii) the Yellowstone River Compact includes
or does not include the tribal water rights or
the water right of any Indian tribe as part of
any allocation or other disposition of water
under that compact; or
(D) waives the sovereign immunity from suit of any
state under the Eleventh Amendment to the Constitution
of the United States, except as expressly authorized in
Article IV(F)(8) of the Compact.
(2) Effect of certain provisions in compact.--The
provisions in article III (A)(6)(a) (1) and (2), (B)(6)(a) (1)
and (2), (E)(6)(a) (1) and (2), and (F)(6)(a) (1) and (2) of
the Compact that provide protections to certain water rights
recognized under the laws of the State do not affect in any
way, either directly or indirectly, existing or future water
rights (including the exercise of any such rights) outside of
the State.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
(a) Rehabilitation and Improvement of Crow Irrigation Project.--
There is authorized to be appropriated $160,653,000, adjusted to
reflect changes since May 1, 2008, under section 5(e) for the
rehabilitation and improvement of the Crow Irrigation Project.
(b) Design and Construction of MR&I System.--There is authorized to
be appropriated $200,840,000, adjusted to reflect changes since May 1,
2008, under section 6(e) for the design and construction of the MR&I
System.
(c) Tribal Compact Administration.--There is authorized to be
appropriated $4,776,000 for Tribal Compact Administration.
(d) Economic Development Projects.--There is authorized to be
appropriated $47,762,000 for Economic Development Projects.
(e) Water Development Projects.--There is authorized to be
appropriated $44,889,000 (as adjusted to reflect changes in
construction cost indices applicable to the types of construction
involved during the period beginning on May 1, 2008, and ending on the
date of appropriation) for Water Development Projects.
(f) MR&I System OM&R.--There is authorized to be appropriated
$72,256,000 (as adjusted to reflect changes in appropriate cost indices
during the period beginning on May 1, 2008, and ending on the date of
appropriation) for MR&I OM&R.
(g) Yellowtail Dam OM&R.--There is authorized to be appropriated
$12,987,000 (as adjusted to reflect changes in appropriate cost indices
during the period beginning on May 1, 2008, and ending on the date of
appropriation) for Yellowtail Dam OM&R.
(h) CIP OM&R.--There is authorized to be appropriated $15,207,000
(as adjusted to reflect changes in appropriate cost indices during the
period beginning on May 1, 2008, and ending on the date of
appropriation) for CIP OM&R.
(i) Environmental Compliance.--There are authorized to be
appropriated such sums as are necessary to carry out all necessary
environmental compliance activities undertaken by the Secretary
associated with the Compact and this Act.
(j) Bureau of Reclamation Costs for Crow Irrigation Project.--There
are authorized to be appropriated such sums as are necessary for the
Bureau of Reclamation to carry out its role as lead agency for the
rehabilitation and improvement of the Crow Irrigation Project.
(k) Bureau of Reclamation Costs for MR&I System.--There are
authorized to be appropriated such sums as are necessary for the Bureau
of Reclamation to carry out its role as lead agency for the design and
construction of the MR&I System.
SEC. 15. REPEAL ON FAILURE TO MEET ENFORCEABILITY DATE.
If the Secretary does not publish a statement of findings under
section 10(e) by March 31, 2016, or such extended date as agreed to by
the Tribe and the Secretary after reasonable notice to the State--
(1) this Act is repealed effective January 1, 2016, and any
action taken by the Secretary and any contract or agreement
pursuant to the authority provided under any provision of this
Act shall be void;
(2) any amounts appropriated under section 14, together
with any interest on those amounts, shall immediately revert to
the general fund of the Treasury; and
(3) any amounts made available under section 14 that remain
unexpended shall immediately revert to the general fund of the
Treasury.
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