1.This Act may be cited as the
Crow Tribe Water Rights Settlement Act
of 2009
.
2.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.
3.In this Act:
(1)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)The term ceded strip means the area identified
on the map attached as appendix 5 to the Compact.
(3)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)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 (2007)
(including any exhibit or part of or amendment to the Compact).
(5)
(A)The term Crow Irrigation Projectmeans 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)Big Horn;
(III)Forty
Mile;
(IV)Lodge Grass
#1;
(V)Lodge Grass
#2;
(VI)Pryor;
(VII)Reno;
(VIII)Soap Creek;
and
(IX)Upper Little
Horn.
(B)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)The term Crow Settlement Fund means the fund
established by section 11(a).
(7)The term Economic Development means any
activity the Tribe determines to further the economic development of the
Tribe.
(8)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)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 (2007),
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)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 settlementThe 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)
(A)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)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 Big Horn River
Valley Subsystem; and
(II)the Little Big
Horn River Valley Subsystem.
(13)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)The
term Reservation means the area identified on the map attached as
appendix 4 to the Compact.
(15)The
term Secretary means the Secretary of the Interior.
(16)The
term State means the State of Montana.
(17)Tribal compact
administrationThe 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)The term tribal water code means a water code
adopted by the Tribe in accordance with section 7(f).
(19)The term tribal water rights means—
(A)the water rights
of the Tribe described in the Compact; and
(B)the water rights
provided to the Tribe under section 8.
(20)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)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 projectThe 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.
4.
(a)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)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)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 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.
5.Rehabilitation
and improvement of the crow irrigation project
(a)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)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)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 incurred by the Secretary in carrying out an
agreement under subsection (a) that are allocated to the Tribe shall be
nonreimbursable.
(e)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)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.
6.Design and
construction of mr&i system
(a)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)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)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 incurred by the Secretary in carrying out an
agreement under subsection (a) that are allocated to the Tribe shall be
nonreimbursable.
(e)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)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.
7.
(a)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)The tribal water rights are ratified, confirmed, and
declared to be valid.
(2)Use
of the tribal water rights shall be subject to the terms and conditions
established by the Compact.
(c)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)As
specified in and provided for in this Act:
(1)Applicability of
Act of February 8, 1887The 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)Any entitlement to water of an allottee under Federal law
shall be satisfied from the tribal water rights.
(3)Allottees
shall be entitled to a just and equitable allocation of water for irrigation
purposes.
(4)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)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)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)The
Secretary shall have the authority to protect allottees' rights as specified in
this section.
(e)
(1)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)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)
(1)Notwithstanding the time period set forth in article
(IV)(A)(2)(b) of the Compact, not later than 1 year after the enforceability
date, 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)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)
(A)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)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)
(i)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 periodThe 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)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.
8.Storage
allocation from bighorn lake
(a)Storage
allocation to tribe
(1)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)
(A)The allocation under paragraph (1) shall be considered to
be part of the tribal water rights.
(B)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)
(i)The Tribe shall administer the water allocated under
paragraph (1) in accordance with the Compact.
(ii)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)
(1)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)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)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)An
agreement under paragraph (1) shall not permanently alienate any portion of the
water allocated under subsection (a)(1)(A).
(d)
(1)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)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.
9.
(a)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)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)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 rightsNotwithstanding 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.
10.Waivers and
releases of claims
(a)
(1)Waiver and
release of claims by the tribe and the United States acting in its capacity as
trustee for the tribeSubject 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 of Montana 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
allotteesSubject 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 StatesSubject
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 of Montana 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, Crow Tribe of Indians v. Norton, No. 02–284
(Apr. 7, 2006);
(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 of Montana 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 of
Montana;
(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 Big Horn River; and
(ii)the failure to
make productive use of those lands created by the movement of the Big Horn
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 Big
Horn 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 releasesThe waivers under subsection (a) shall take
effect on the enforceability date.
(c)Reservation of
rights and retention of claimsNotwithstanding 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 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) arising out of activities occurring
outside the State of Montana;
(4)all rights to use
and protect water rights acquired pursuant to state law, to the extent not
inconsistent with the Compact;
(5)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;
(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);
(7)all rights,
remedies, privileges, immunities, and powers not specifically waived and
released pursuant to this Act;
(8)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 Big Horn River;
and
(B)the productive use
of those lands created by the movement of the Big Horn River to which the Tribe
has claimed title; and
(9)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 ActNothing 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, Crow Tribe of
Indians v. Norton, No. 02–284 (Apr. 7, 2006).
(e)
(1)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)$44,000,000 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
parties and the Secretary.
(f)
(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
date on which the amounts authorized to be appropriated to carry out this Act
are appropriated.
(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.
11.
(a)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 fundThe 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)The Secretary of the Treasury shall promptly deposit in
the Crow Settlement Fund any amounts appropriated for that purpose.
(2)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)
(1)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 fundUpon 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)Funds from the Crow Settlement Fund shall be used for
each purpose described in subparagraphs (B) through (G).
(B)Tribal compact
administration accountThe 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 accountThe 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 accountThe 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 AccountInterest 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)
(i)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)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 fundsThe funds from 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)
(i)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)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 fundsThe 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)
(A)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)
(i)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)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)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)
(i)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)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)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)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 prohibitedNo amount in the Crow Settlement
Fund shall be distributed to any member of the Tribe on a per capita
basis.
(e)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.
(f)The State contribution shall be provided in
accordance with article VI(A) of the Compact.
12.
(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).
(b)
(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)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.
13.
(a)Waiver of
sovereign immunity by the United StatesExcept 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 affectedNothing 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 reimbursementWith 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)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)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)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)
(1)Nothing in this Act or 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
Right or any portion of the Tribal Water Right 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 Right 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.
14.Authorization of
appropriations
(a)Rehabilitation
and improvement of crow irrigation projectThere 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 SystemThere 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
administrationThere is authorized to be appropriated $4,000,000
for Tribal Compact Administration.
(d)Economic
development projectsThere is authorized to be appropriated
$40,000,000 for Economic Development Projects.
(e)Water
development projectsThere is authorized to be appropriated
$37,594,000 (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)There is authorized to be appropriated $40,513,000 (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)There is authorized to be appropriated $30,876,000 (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)There is authorized to be appropriated $12,736,000 (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)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 projectThere 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 SystemThere 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.
(l)Interest Accrued
From Crow Settlement FundFor each fiscal year during the period
beginning on the date of enactment of this Act and ending on the enforceability
date, there is authorized to be appropriated for deposit into the Crow
Settlement Fund an amount equal to the interest that would have accrued during
the preceding fiscal year on balances held in the Crow Settlement Fund.
(m)The interest described in this section shall be
calculated using the applicable rate for interest-bearing obligations of the
United States.
15.Repeal on
failure to meet effective dateIf the Secretary does not publish a
statement of findings under section 10(e) by March 31, 2015—
(1)this Act is
repealed effective January 1, 2015, 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.
1.This Act may be cited as the
Crow Tribe Water Rights Settlement Act
of 2009
.
2.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.
3.In this Act:
(1)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)The term ceded strip means the area identified
on the map attached as appendix 5 to the Compact.
(3)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)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)
(A)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)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)The term Crow Settlement Fund means the fund
established by section 11(a).
(7)The term Economic Development means any
activity the Tribe determines to further the economic development of the
Tribe.
(8)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)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)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
settlementThe 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)
(A)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)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)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)The
term Reservation means the area identified on the map attached as
appendix 4 to the Compact.
(15)The
term Secretary means the Secretary of the Interior.
(16)The
term State means the State of Montana.
(17)Tribal compact
administrationThe 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)The term tribal water code means a water code
adopted by the Tribe in accordance with section 7(f).
(19)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)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)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
projectThe 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.
4.
(a)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)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)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 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.
5.Rehabilitation and
improvement of the crow irrigation project
(a)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)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)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
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)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)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.
6.Design and construction
of MR&I System
(a)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)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)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 incurred by the Secretary in carrying out an
agreement under subsection (a) that are allocated to the Tribe shall be
nonreimbursable.
(e)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)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)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)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)
(A)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)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
conveyanceNot 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 completionAfter 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.
7.
(a)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)The tribal water rights are ratified, confirmed, and
declared to be valid.
(2)Use
of the tribal water rights shall be subject to the terms and conditions
established by the Compact.
(c)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)As
specified in and provided for in this Act:
(1)Applicability of Act of
February 8, 1887The 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)Any entitlement to water of an allottee under Federal law
shall be satisfied from the tribal water rights.
(3)Allottees
shall be entitled to a just and equitable allocation of water for irrigation
purposes.
(4)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)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)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)The
Secretary shall have the authority to protect allottees' rights as specified in
this section.
(e)
(1)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)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)
(1)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)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)
(A)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)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)
(i)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 periodThe 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)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.
8.Storage allocation from
bighorn lake
(a)Storage allocation to
tribe
(1)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)
(A)The allocation under paragraph (1) shall be considered to
be part of the tribal water rights.
(B)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)
(i)The Tribe shall administer the water allocated under
paragraph (1) in accordance with the Compact.
(ii)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)
(1)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)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)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)An
agreement under paragraph (1) shall not permanently alienate any portion of the
water allocated under subsection (a)(1)(A).
(d)
(1)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)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.
9.
(a)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)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)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
rightsNotwithstanding 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.
10.Waivers and releases of
claims
(a)
(1)Waiver and release of
claims by the tribe and the United States acting in its capacity as trustee for
the tribeSubject 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
allotteesSubject 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 StatesSubject 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 releasesThe waivers under subsection (a) shall take
effect on the enforceability date.
(c)Reservation of rights
and retention of claimsNotwithstanding 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
ActNothing 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)
(1)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)
(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
date on which the amounts authorized to be appropriated to carry out this Act
are appropriated.
(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.
11.
(a)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 fundThe 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)The Secretary of the Treasury shall promptly deposit in
the Crow Settlement Fund any amounts appropriated for that purpose.
(2)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)
(1)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 fundUpon 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)Funds from the Crow Settlement Fund shall be used for
each purpose described in subparagraphs (B) through (G).
(B)Tribal compact
administration accountThe 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
accountThe 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 accountThe 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
AccountInterest 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)
(i)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)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
fundsInterest 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)
(i)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)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
fundsThe 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)
(A)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)
(i)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)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)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)
(i)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)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)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)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 prohibitedNo amount in the Crow Settlement Fund
shall be distributed to any member of the Tribe on a per capita basis.
(e)
(1)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)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)The State contribution shall be provided in
accordance with article VI(A) of the Compact.
12.
(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)
(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)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 PlanThe provisions of subsection (a) apply to any amendment
to—
(1)the Compact; or
(2)the Streamflow and Lake
Level Management Plan.
13.
(a)Waiver of sovereign
immunity by the United StatesExcept 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 affectedNothing 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 reimbursementWith 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)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)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)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)
(1)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 CompactThe 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.
14.Authorization of
appropriations
(a)Rehabilitation and
improvement of crow irrigation projectThere 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 SystemThere 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
administrationThere is authorized to be appropriated $4,776,000
for Tribal Compact Administration.
(d)Economic development
projectsThere is authorized to be appropriated $47,762,000 for
Economic Development Projects.
(e)Water development
projectsThere 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)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)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)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)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 projectThere 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 SystemThere 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.
15.Repeal on failure to
meet enforceability dateIf
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.
January 21, 2010
Reported with an amendment