[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]
H.R. 3658, A BILL TO PROVIDE FOR THE SETTLEMENT OF THE WATER RIGHTS
CLAIMS OF THE CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S RESERVATION, AND
FOR OTHER PURPOSES
=======================================================================
HEARING
before the
SUBCOMMITTEE ON WATER AND POWER
of the
COMMITTEE ON RESOURCES
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 23, 1998, WASHINGTON, DC
__________
Serial No. 105-112
__________
Printed for the use of the Committee on Resources
Available via the World Wide Web: http://www.access.gpo.gov/congress/house
or
Committee address: http://www.house.gov/resources
U.S. GOVERNMENT PRINTING OFFICE
51-141 CC WASHINGTON : 1998
------------------------------------------------------------------------------
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON RESOURCES
DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana GEORGE MILLER, California
JAMES V. HANSEN, Utah EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California ENI F.H. FALEOMAVAEGA, American
WAYNE T. GILCHREST, Maryland Samoa
KEN CALVERT, California NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California CARLOS A. ROMERO-BARCELO, Puerto
WALTER B. JONES, Jr., North Rico
Carolina MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG, Arizona SAM FARR, California
JOHN E. ENSIGN, Nevada PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon ADAM SMITH, Washington
CHRIS CANNON, Utah WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania DONNA CHRISTIAN-GREEN, Virgin
RICK HILL, Montana Islands
BOB SCHAFFER, Colorado RON KIND, Wisconsin
JIM GIBBONS, Nevada LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho
Lloyd A. Jones, Chief of Staff
Elizabeth Megginson, Chief Counsel
Christine Kennedy, Chief Clerk/Administrator
John Lawrence, Democratic Staff Director
------
Subcommittee on Water and Power Resources
JOHN T. DOOLITTLE, California, Chairman
KEN CALVERT, California PETER A. DeFAZIO, Oregon
RICHARD W. POMBO, California GEORGE MILLER, California
HELEN CHENOWETH, Idaho OWEN B. PICKETT, Virginia
LINDA SMITH, Washington CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California SAM FARR, California
WILLIAM M. (MAC) THORNBERRY, Texas ADAM SMITH, Washington
JOHN B. SHADEGG, Arizona RON KIND, Wisconsin
JOHN E. ENSIGN, Nevada LLOYD DOGGETT, Texas
ROBERT F. SMITH, Oregon ---------- ----------
CHRIS CANNON, Utah ---------- ----------
MICHAEL D. CRAPO, Idaho
Robert Faber, Staff Director/Counsel
Joshua Johnson, Professional Staff
Steve Lanich, Minority Staff
C O N T E N T S
----------
Page
Hearing held September 23, 1998.................................. 1
Statement of Members:
Chenoweth, Hon. Helen, a Representative in Congress from the
State of Idaho, prepared statement of...................... 4
Doolittle, Hon. John T., a Representative in Congress from
the State of California.................................... 1
Prepared statement of.................................... 2
Hill, Hon. Rick, a Representative in Congress from the State
of Montana................................................. 3
Statement of Witnesses:
Cosens, Barbara, Legal Counsel, Montana Reserved Water Rights
Compact Commission......................................... 9
Prepared statement of.................................... 37
Hayes, David J., Counselor to the Secretary of the Interior,
Department of the Interior................................. 5
Prepared statement of.................................... 22
Sunchild, Bruce, Vice Chairman, Chippewa Cree Water Rights
Negotiating Team........................................... 7
Prepared statement of.................................... 23
HEARING ON H.R. 3658, A BILL TO PROVIDE FOR THE SETTLEMENT OF THE WATER
RIGHTS CLAIMS OF THE CHIPPEWA CREE TRIBE OF THE ROCKY BOY'S
RESERVATION, AND FOR OTHER PURPOSES
----------
WEDNESDAY, SEPTEMBER 23, 1998
House of Representatives,
Subcommittee on Water and Power,
Committee on Resources,
Washington, DC.
The Subcommittee met, pursuant to notice, at 2:05 p.m. in
room 1334, Longworth House Office Building, Hon. John Doolittle
(chairman of the Subcommittee) presiding.
STATEMENT OF HON. JOHN T. DOOLITTLE, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Doolittle. The Subcommittee will come to order.
We are here today to hold a hearing on H.R. 3658, a bill to
provide for the settlement of the water rights claims of the
Chippewa Cree Tribe of the Rocky Boy's Reservation, and for
other purposes.
This is the first new Indian water rights settlement bill
to come before the Congress in many years. Although there are a
number of pending and potential Indian water rights claims
throughout the country, this legislation is also the first
Indian water rights settlement proposed by the Clinton
Administration.
We need to take steps to advance the resolution of these
issues as quickly as possible. These claims have been
outstanding for decades and, frankly, the process is too
cumbersome and does not reflect the unique nature of each
situation. The opportunity must exist to meet the long sought
needs of the tribes and at the same time reduce the impacts on
existing water users. I am encouraged by the comments we have
received from the Western Governors concerning their commitment
to negotiate rather than litigate these claims.
As many of you are aware, the Senate has held an oversight
hearing and a markup this year on the Rocky Boy Reservation's
implied reserve water rights settlement. Unfortunately, many of
the underlying questions have been left unanswered on the
Senate side.
While there is no question about the need to settle Indian
water rights issues, it is imperative, in order to arrive at a
wise, fair and equitable solution, that the following issues be
fully considered: One, the statutory, regulatory and judicial
history of the implied Federal reserved water rights; two,
State jurisdiction in the appropriation and later distribution
of water; three, the appropriate funding mechanisms to resolve
these problems; and, four, the appropriate methods for
determining the liability in Indian water rights settlements.
Over the years, both Indian and non-Indian implied reserved
water rights have undergone a judicial evolution. It is clearly
time to consider those trends and look for ways to meet the
growing needs of Indian populations while preserving the
stability of current water rights holders.
Although the courts have not fully reconciled the Indian
and non-Indian reserve water rights cases, the opportunity
exists to weave the many threads of existing trends in case law
together; to consider existing demands, needs and technology;
and to develop a process that is faster and more equitable to
all the parties.
The legislation we have before us is the product of hard
work and thoughtful consideration of a complicated situation. I
believe that everyone involved has a genuine desire to address
the fundamental need the Indian tribes have for adequate water
resources.
I look forward to hearing from our witnesses today. We at
this point don't have a minority member to make the opening
statement on their side, and I guess if we do, when they come
in, I will recognize them for that purpose.
[The prepared statement of Mr. Doolittle follows:]
Statement of Hon. John T. Doolittle, a Representative in Congress from
the State of California
This is the first new Indian water rights settlement bill
to come before the Congress in many years. Although there are a
number of pending and potential Indian water rights claims
throughout the country, this legislation is also the first
Indian water rights settlement proposed by the Clinton
Administration.
We need to take steps to advance the resolution of these
issues as quickly as possible. These claims have been
outstanding for decades. The process is too cumbersome and does
not reflect the unique nature of each situation. The
opportunity must exist to meet the long sought needs of the
tribes and at the same time reduce the impacts on existing
water users. I am encouraged by the comments we have received
from the Western Governors concerning their commitment to
negotiate rather than litigate these claims.
As many of you are aware, the Senate has held an oversight
hearing, and a markup, this year, on the Rocky Boy
Reservation's Implied Reserved Water Rights Settlement.
Unfortunately many of the underlying questions have been left
unanswered on the Senate side.
While there is no question about the need to settle Indian
water right issues, it is imperative, in order to arrive at a
wise, fair, and equitable solution, that the following issues
be fully considered:
The statutory, regulatory, and judicial history of
implied Federal reserved water rights.
State jurisdiction in the appropriation and later
distribution of water.
The appropriate funding mechanisms to resolve these
problems.
The appropriate methods for determining liability in
Indian water rights settlements.
Over the years both Indian and non-Indian implied reserved Federal
water rights have undergone a judicial evolution. It is clearly time to
consider those trends and look for ways to meet the growing needs of
Indian populations while preserving the stability of current water
rights holders.
Although the courts have not fully reconciled the Indian and non-
Indian reserve water rights cases, the opportunity exists to weave the
many threads of existing trends in case law together; to consider
existing demands, needs, and technology; and to develop a process that
is faster and more equitable to all the parties.
The legislation we have before us is the product of hard work and
thoughtful consideration of a complicated situation. I believe that
everyone involved has a genuine desire to address the fundamental need
the Indian tribes have for adequate water resources.
I look forward to hearing from our witnesses today.
Mr. Doolittle. We are going--we have Mr. Hill, whose bill
this is, joining us today. I recognize you for any statements
that you would like to make.
STATEMENT OF HON. RICK HILL, A REPRESENTATIVE IN CONGRESS FROM
THE STATE OF MONTANA
Mr. Hill. I thank you, Mr. Chairman, and thank you for
holding this hearing. I want to welcome Bruce Sunchild, who is
the vice chairman of the Chippewa Cree Tribe of the Rocky Boy's
Reservation; Barbara Cosens, legal counsel from the Montana
Reserve Water Rights Compact Commission; and David Hayes,
counselor to the Secretary of the Interior.
The benefits of this legislation are that it addresses the
long-term water needs of the Rocky Boy's Reservation; without
this compact, those water needs cannot be met. The Indian
Health Service designed the current water supply system which,
Mr. Chairman, provides an average daily use of about 60 gallons
per person. The average Montana use is about 170 gallons per
person.
The reservation's population is predicted to grow at about
3 percent per year, so clearly the current system cannot meet
either the current demand or projected demand. This bill enacts
a water needs assessment study for all of north central Montana
where water, in that area of Montana, is scarce. And this is a
first step in ratifying a solution to address not only the
tribe's needs but the needs of others.
This bill will reduce the potential for future water rights
disputes by setting up a dispute resolution mechanism. This
legislation represents a successful culmination of a long-
standing negotiation between the tribe and the State, and has
the blessing of the administration.
Mr. Chairman, since 1916 when the reservation was created,
the tribe has sought to meet its water needs. The tribe's
current water needs process began in 1982, when the U.S. filed
a water claim for the tribe in the Montana water court. This
led the U.S. Government, the tribe and the State of Montana to
enter into negotiations, and these negotiations represent a
good faith effort to avoid costly legislation to provide a win-
win solution for all Montanans.
The State of Montana held a series of public meetings
regarding these negotiations beginning in 1992. And with that
in mind, over a decade of technical studies, an agreement was
reached in 1997 for the benefit of all Montanans. The Montana
State Legislature approved this compact on April 14th, 1997.
This legislation would ratify the compact, which will
achieve the following things: It will allow the tribe to
exercise its on-reservation water rights of 10,000 acre feet of
water. For this to happen, the Federal Government would
contribute $24 million for on-reservation water development
projects. It would contribute $15 million toward the planning
and the construction of a future water reservation water supply
system. And it would contribute $4 mil-
lion for the feasibility studies on enhancing the water
supplies for others in the tribe in northern central Montana.
In conclusion, Mr. Chairman, this bill represents a Montana
consensus, and I look forward to working with the chairman and
my colleagues in moving this forward. Mr. Chairman, I do have a
bill on the floor, and I am going to have to leave here
shortly. With your consent, I would like to submit questions in
writing to the panelists.
Mr. Doolittle. Of course, that will be perfectly
appropriate, and then we will ask them to respond
expeditiously.
Mr. Hill. Thank you, Mr. Chairman.
[The prepared statement of Mrs. Chenoweth follows:]
Statement of Hon. Helen Chenoweth, a Representative in Congress from
the State of Idaho
Mr. Chairman, I am pleased that we have the opportunity to
hold a hearing on H.R. 3658, the ``Chippewa Cree Tribe of the
Rocky Boy's Reservation Indian Water Right Settlement Act of
1998.'' This is a bill that could have major future
implications on water rights throughout the west.
Mr. Chairman, on the surface, H.R. 3658 simply affirms a
compact that has been made between the State of Montana and the
United States over water rights for the Chippewa Cree Tribe. I
do not oppose the right for the Montana or any other state to
make these type of agreements. However, what I am concerned
about is how this new law, which would codify an ``Indian
reserved water right,'' could impact the many numerous disputes
over water between my own State of Idaho and the United States
over this very doctrine.
Mr. Chairman, I understand that this bill tries to restrict
the precedents for future litigation this bill would establish
for Federal reserved water rights. But there is no way to
ensure that this limitation will be enforced by future courts--
and at the very least, the first-time codification of a Federal
reserved water right will lead us down a dangerous and
unintended path.
Mr. Chairman, we all are aware of a concept that has been
established through common law known as the ``Winters
doctrine,'' which had its origin in the 1908 Supreme Court case
Winters v. U.S. This case held that water which was flowing
through an Indian Reservation in Montana was impliedly reserved
by the government in the treaty establishing the reservation.
In other words, the court held that although no mention was
made in the treaty regarding the reservation of water rights,
it was assumed that such a right was meant to be implied when
the treaty was created.
Ever since this decision, the U.S. government has made
numerous attempts to broaden the ``Winters doctrine'' to
suggest that the United States has an implied reserved right to
water above the rights that belong to the state. However, the
Supreme Court has consistently ruled that the primary authority
for water rights belongs to the states. In California v. U.S.
current Chief Justice Rehnquist opined what would be the
consequences if we were to undermine this right. He said:
``To take from the legislatures of the various states and
territories, the control of (water) at the present time would
be something less than suicidal . . . If the appropriation and
use were not under the provisions of the State law, the utmost
confusion would prevail.''
The Court has held in cases such as Cappaert v. U.S. and Arizona v.
California that when the Federal Government reserves land from the
public domain, by implication it reserves water rights sufficient to
accomplish the purpose of the reservation. But the Court clarifies in
later cases such as U.S. v. New Mexico that this reserved right is
extremely limited and reaffirms that water rights should be
``established in accordance with local custom, laws, and decisions of
the courts.'' In this decision, Judge Rehnquist again emphasizes the
importance of state rights, even in the spectrum of Federal reserved
rights, when he states:
``Congress has seldom expressly reserved water for use . . .
lf water were abundant, Congress' silence would pose no
problem. In the and parts of the west, however, claims to water
for use on Federal reservations inescapably vie with other
public and private claims for the limited quanties to be found
in rivers and streams. This competition is compounded by the
sheer quantity of reserved lands in the western states, which
lands form brightly colored swaths across the United States.''
Mr. Chairman, despite these clear limitations that the Supreme
Court has established on Federal reserved rights, in the past few years
we have witnessed an attempt by the Federal Government to dramatically
widen the scope of the Federal reserved water rights doctrine. In my
own state of Idaho, along the Snake River, thousands of cases are being
adjudicated on this very issue.
Moreover, we are seeing Federal district judges ignore clear
precedent set down by both statutory and common law in favor of non-
binding Federal ``biological opinions.'' In addition, just a month ago,
a Federal District Court ruled that one-third of Lake Ceour d'Alene, in
northern Idaho, belonged under the ownership of an Indian tribe.
These type of actions may seem inconsequential now, but in the long
run will dislodge the delicate system now in place for controlling
water. This will result in a devastating impact on the livelihoods that
depend on that system of for survival. Already, it is creating a sense
of ``confusion'' and uncertainty that the Supreme Court warned about.
The ability for citizens who are attempting to make a living in our
state to adequately know how to protect their investments is in serious
jeopardy.
Mr. Chairman, to relate back to the bill we are considering today,
H.R. 3658 will codify an Indian reserved water right. Yet, the bill
does not define the exact nature of that right. In fact, the vagueness
of this ``reserved'' right leaves it wide open for future
interpretation. I hesitate to think what a ambiguous codification of
the term ``Federal reserved water right'' could mean to the many water
appropriation holders up and down the Snake River, who are at this time
having to fight to preserve their water rights against the government.
It is these type of precedents and ambiguities that threaten the future
stability of the long-established system of water rights in Idaho and
the West. We have a duty as Congress to stop this from happening.
Mr. Chairman, I cannot emphasize enough the seriousness of the
matter before us today. Before we allow this bill to move further in
the process, we need to take a very close look at vhat they ``reserved
water right'' means, and how it could impact state water rights. I hope
that we may examine and clarify this issue today before the
Subcommittee.
Mr. Doolittle. Thank you. Well, let me ask our 3 witnesses
please to rise and raise their right hands. We actually have
someone who--Ms. Knight, maybe you would like to join them just
in the event that you are going to be giving testimony.
[Witnesses sworn.]
Mr. Doolittle. Thank you. Let the record reflect each
answered in the affirmative. We are pleased to have you here on
an important subject.
Our first witness will be Mr. David J. Hayes, Counselor to
the Secretary of the Interior. And we are pleased to have you
here Mr. Hayes, and you are recognized.
STATEMENT OF DAVID J. HAYES, COUNSELOR TO THE SECRETARY OF THE
INTERIOR, DEPARTMENT OF THE INTERIOR
Mr. Hayes. Thank you, Mr. Chairman, and thank you for
calling this hearing. We very much appreciate, particularly
given the late hour of the session, the Subcommittee having
this hearing.
Mr. Chairman, I will not repeat the material in our written
statement, which I hope will be accepted for the record.
Instead, I would simply like to highlight a few points this
afternoon.
First is that this bill would approve a water rights
compact that was entered into truly under the leadership of the
tribe and the State parties. To our mind, as Federal
representatives, this represents the model of how Indian water
rights settlements should be solved, which is at the grass
roots level, with the leadership of the Montana State Reserved
Water Commission and tribal representatives, as described in
some detail in the State's testimony before the Subcommittee
today.
There was an effort to involve all water users in the
entire affected basin, to literally work ranch by ranch, water
user by water user to try to reconcile water uses and water
rights of the various parties. The result was a very creative,
thoughtful accommodation of the rights and interests of all
parties. And we as the Federal Government were happy to play
our part in helping to make that grass roots agreement become a
reality.
In terms of our role here, Mr. Chairman, really two things
are asked of us as Federal authorities. One is to validate the
State compact, the key components of the State compact, so that
they may become Federal law; and as part of that, to confirm
that any otherwise existing Federal rights and as trustee to
the tribe dealing with potentially senior water rights would be
waived.
And we think it's appropriate for the Federal Government,
in consultation with the tribe and with this entire package, to
provide those assurances. And that is why through this
settlement, the question of potentially otherwise unenforced
Federal rights for--on behalf of the tribe for water rights
will be resolved in favor of the system that the State and the
tribes have essentially worked out together.
The second thing that is asked of the Federal Government is
for help in implementing the scheme that basically the State
and the tribe came up with to help satisfy the water needs of
both the tribe and the non-Indian water rights holders in the
area. And in order to do that, two things needed to happen:
First, the on-reservation water supplies of the tribe,
which are limited, need to be enhanced so that the most can be
made of those water supplies. Once the most is made of those
water supplies through, for example, the Bonneau Reservoir,
then an accommodation can be made so that the downstream non-
Indian water rights holders and those depending on water will
be able to count on the continued flow of water for their
purposes, while the tribe at the same time can count on the
water it needs for its reservation.
And much of this bill is essentially a series of, in the
grand scheme of things, small projects that will enhance the
on-reservation capability of the tribe to utilize its water for
not only its benefit, but quite directly for the benefit of
non-Indians as well, who therefore will be able to count on
and, in fact, with the tribe being required to do, ensure that
adequate supplies will flow down downstream to non-Indian
parties.
The second thing we've been asked to do in terms of funding
is to help, long term, by examining the tribal water need for
additional drinking water supplies. It's clear that over the
long haul, with the projected increase in population by the
tribe, that they will not have adequate drinking water on the
reservation, even with the enhanced water supplies.
We as the Federal Government did not believe that we have
the wherewithal or the responsibility to fully fund any project
that might provide that enhanced water supply. But we do
believe a significant financial commitment here of $15 million
to be put in trust to satisfy the long-term drinking water
needs of the tribe is appropriate, and that has been
incorporated into this settlement, along with a planning effort
that Congressman Hill outlined in his opening statement.
So in conclusion, we enthustiastically endorse this
legislation. It exemplifies the type of grass roots resolution
of conflicting water rights that we think serves as an
excellent model of how these issues should get resolved.
Negotiation, not litigation, is the policy of this
administration, as it was for the previous administration in
resolving Indian water rights.
We also believe that the settlement satisfies the Federal
trust responsibility to the tribe. And that, of course, is a
fundamental guidance to our actions and is a reason for our
support for the legislation.
We think this is a remarkable achievement. We congratulate
the citizens and the leaders of the State of Montana, both
tribal and nontribal, in putting this deal together. And we're
happy to do what we can to make it a reality. We hope the
Committee will move on the bill.
Thank you very much, Mr. Chairman.
[The prepared statement of Mr. Hayes may be found at end of
hearing.]
Mr. Doolittle. Thank you.
Our next witness will be Mr. Bruce Sunchild, vice chairman
of the Chippewa Cree Water Rights Negotiating Team. You are
recognized.
STATEMENT OF BRUCE SUNCHILD, VICE CHAIRMAN, CHIPPEWA CREE WATER
RIGHTS NEGOTIATING TEAM
Mr. Sunchild. Thank you very much, Chairman Doolittle,
Representative Hill, honorable members of the Committee. My
name is Bruce Sunchild. I'm a member of the Business Council of
the Chippewa Cree Tribe of the Rocky Boy's Reservation. The
Business Council is the governing body of the Chippewa Cree
Tribe. I also serve as vice chairman of the Tribe's Water
Rights Negotiating Team.
I am here to testify on behalf of the tribe in support of
H,R. 3658 entitled, the Chippewa Cree Tribe of the Rocky Boy's
Reservation Indian Reserved Water Rights Settlement Act of
1998. I am accompanied today by the tribe's water resources
staff, Paul Russette, also Yvonne Knight, the tribe's attorney.
I appreciate the opportunity to testify before you today. I
submit for the record the tribe's detailed written testimony.
I would like to begin by expressing the tribe's great
appreciation to Representative Hill and to his staff for their
help and support of moving this bill forward. I would also like
to thank Representative Doolittle and his staff of the Energy
and Power Subcommittee, for assisting the tribe in obtaining a
hearing on H.R. 3658.
The tribe and the state of Montana and the United States
are in full agreement that the settlement embodied in H.R. 3658
is beneficial to all parties. The settlement consists of the
compact entered into between the tribe and the State of Montana
on April 14th, 1997, and the bill before you today.
The bill ratifies the compact and provides funding to
enable the tribe to fulfill its obligations under the compact,
to compensate the tribe for its release of breach of trust
claims against the U.S. Government, and to enable the United
States to carry out its trust obligation by assisting the tribe
in obtaining the water necessary to make Rocky Boy's
Reservation a permanent self-sustaining homeland.
The settlement benefits the tribe in a number of different
ways. First, it ratifies the compact and quantifies the tribe's
on-reservation water rights at 10,000 acre feet per year. The
remainder of the annual water supply on the reservation will be
used to mitigate impacts on downstream non-Indian users. The
settlement provides $3 million to enable the tribe to carry out
administrative duties under the compact.
Second, the settlement provides a future source of drinking
water for the tribe by setting aside 10,000 acre feet of water
in Lake Elwell behind Tiber Dam. The Rocky Boy's Reservation is
located in a water-short area, and existing on-reservation
water supplies are insufficient to meet the tribe's current and
future drinking water needs. The settlement provides $1 million
to study alternative means to transport the Lake Elwell water
to the reservation, and $15 million is authorized as seed money
to be applied toward the design and construction of the
selected importation system.
Third, the settlement provides $25 million to improve on-
reservation water supply facilities. These facilities will
enable the tribe to enhance the availability of water supplies
on the reservation, to improve tribal agricultural products, to
ensure the existing dams are made safe, and to meet the tribe's
obligation under the compact to mitigate impacts on downstream
water users.
Fourth, the settlement provides the tribe with an economic
development fund of $3 million to assist us in furthering our
economic development plans on the reservation.
The settlement also benefits the tribe's non-Indian
neighbors in Montana. First, it quantifies the tribe's water
rights and brings certainty to the rights of tribe's non-Indian
neighbors. It thus eliminates the need for lengthy, expensive
and divisive litigation.
Second, the compact establishes guidelines for day-to-day
administration for the water rights projected under the
compact, both tribal and non-Indian, and establishes a local
system for resolving disputes that may arise between tribal
water users and nontribal water users.
Third, H.R. 3658 will benefit the entire north central
Montana region by authorizing a $5 million feasibility study to
examine ways to supplement the Milk River Basin water supply.
This study will also undoubtedly further the United States'
effort to settle the water rights of the two other tribes in
Milk River Basin, Blackfeet and Fort Belknap.
The tribe strongly urges Congress to enact H.R. 3658 into
law during this session. First, two of the dams on the
reservation which will be repaired in and enlarged with funds
from this settlement are classified by BIA as unsafe dams.
However, these funds cannot be expended by the tribe until a
final decree approving settlement is approved by the State
water court. A final decree cannot be entered until the compact
is ratified by Congress through H.R. 3658. And even then, State
court procedure could take as long as 2 years. The longer we
must wait for funds to repair the unsafe dams, the greater the
risk that a tragedy will occur.
Second, there is no opposition to H.R. 3658. It is fully
supported by the administration, as well as the tribe and the
State, the first Indian water rights settlement to have this
distinction.
In conclusion, I thank you for the opportunity to testify
on behalf of the tribe in wholehearted support of H.R. 3658,
the Chippewa Cree Tribe of the Rocky Boy's Reservation Indian
Reserved Water Rights Settlement Act of 1998, and we will be
happy to answer any questions this Committee may have.
Thank you very much.
[The prepared statement of Mr. Sunchild may be found at end
of hearing.]
Mr. Doolittle. Thank you, sir.
Our final witness is Ms. Barbara Cosens, legal counsel,
Montana Reserved Water Rights Compact Commission. Ms. Cosens,
you are recognized.
STATEMENT OF BARBARA COSENS, LEGAL COUNSEL, MONTANA RESERVED
WATER RIGHTS COMPACT COMMISSION
Ms. Cosens. Thank you, Mr. Chairman. Chairman Doolittle and
Congressman Hill, my name is Barbara Cosens. I'm legal counsel
for the Montana Reservation Water Rights Compact Commission.
I'm here to testify on behalf of the State of Montana and
Governor Marc Racicot in support of H.R. 3658 and to urge your
approval of the Act. My written testimony has been submitted
for the record.
Congressman, it would be impossible for me to overstate the
importance of this bill for the State of Montana. The
unquantified nature of reserved water rights casts a cloud over
certainty regarding investment in private water development
throughout the West.
In 1979, the Montana legislature created the Montana
Reserved Water Rights Compact Commission in order to settle
these issues. And in doing so, our legislature articulated a
policy in favor of negotiated settlements. In 1983, in a suit
before the U.S. Supreme Court in which Montana was a
participant, the Supreme Court held that State courts do have
jurisdiction to join the United States in a general stream
adjudication for settlement of these issues.
That case strengthened our ability to bring tribes in the
United States to the table to settle these issues, and since
1983, we in Montana have been very successful in doing this. We
have settled with three Indian reservations and with nine other
Federal reservations, in every case we've been successful in
protecting existing water users and in protecting the State's
interests in maintaining control over its water.
Similar to Montana, most Western States favor a policy of
negotiated settlements, and they've supported their neighbors
in seeking their own unique solutions. In June of this year,
the Western Governors Association passed a resolution in favor
of negotiated settlements, urging the Federal Government to
participate in these efforts and help us move forward to
finalize these issues. That resolution has been submitted as an
attachment to my written testimony.
It's not hard to understand this preference for negotiated
settlements, which allows us to tailor unique solutions to meet
the needs of the specific locale that we're dealing with. If
you think about the diversity of the Western landscape, our
climate varies drastically. We have wide differences in water
supply, in precipitation, in growing season, in access to
markets, and in the economic value of water, which varies
widely from Southwestern urban areas to agricultural areas like
Montana.
In the area of this particular reservation, most of the
precipitation comes as snow pack in the Bearpaw Mountains. It
runs off in early spring. Springs run dry in late summer. The
only way to provide a firm yield of water supply is through
storage.
This Act, by authorizing enlargement of existing dams on
the reservation, chooses a relatively low cost to do that, and
in doing so, has minimal impact on the environment. Also, by
storing early spring runoff, it minimizes the impact on
downstream water users.
We took further measures in the settlement to protect
downstream water users from any harm, and we did this with the
process of working with water users literally on a ranch-by-
ranch basis. Years of experience has taught us that no amount
of expert study can replace the knowledge that ranchers have
gained through generations of living and making--working on
these streams. We made staff engineers and contract engineers
available to them to design improvements and conveyance in
diversion structures, to allow them to take water at the lower
flows while the tribe is storing water.
In Beaver Creek we purchased water from an off-reservation
reservoir for release to make up for water stored on the
reservation. All of these measures were funded by State grants.
In addition to these local protections, the compact protects
the State's interests in maintaining control over its waters by
assuring that any off-reservation use of the tribal water
rights subjects it to full compliance with State law.
On behalf of Montana, I would urge you not only to pass
this bill, but to do so this session. The Montana legislature
has prioritized the Milk River Basin in which the Rocky Boy's
Reservation is located for adjudication by our water court, and
the reason for doing this is because this is an area with high
potential for conflict over water use. Our water court is
prepared to begin working on a decree next year if Congress
passes this Act.
Of even greater urgency is the need to repair the unsafe
dams on the reservation. On Friday I spoke with Hill County
Commissioner Kathy Bassett and we talked about a rainstorm that
occurred this June in the Bearpaw Mountains. It dropped 9
inches of rain in the 24-hour period, and Kathy said that it
appeared for a while that the East Fork Reservoir, which is an
unsafe Federal dam on the reservation, would not hold. A county
park downstream from the reservation was evacuated.
Downstream from that, there is a larger reservoir. Had East
Fork gone out and taken the lower reservoir with it, the 10,000
residents of the community of Havre would have been directly in
the path of the flood. Repair of these dams is needed before
this situation occurs again.
Congressman, we know of no opposition to this settlement.
Passage of the Act would send a signal to Western States that
the United States is once again prepared to help us move
forward toward finality on these issues.
I appreciate the opportunity to testify on behalf of the
state of Montana in support of H.R. 3658. I urge your timely
approval of this bill, and I would be happy to answer any
questions by the Subcommittee.
[The prepared statement of Ms. Cosens may be found at end
of hearing.]
Mr. Doolittle. Thank you very much.
Mr. Hayes, is it my understanding that the administration
then supports H.R. 3658?
Mr. Hayes. That's correct, Mr. Chairman.
Mr. Doolittle. What does the language in Article VII,
section A(4) of this bill mean? Is that in the compact? That's
in the compact. And, Mr. Hayes, it's not in the bill. But let
me ask you about the compact. I don't have the full text of
that in front of me, but there's language in there that I
understand Article VII, section A(4), that says notwithstanding
any other provision in this compact, the Department of the
Interior reserves the right to refuse support for Federal
legislation ratifying this compact.
Mr. Hayes. Mr. Chairman, let me explain. The compact was
passed and signed into State law at a time when there was not
agreement by the Federal Government on some of the basic terms
of the compact, including an open-ended request or requirement,
really, for Federal funding of as yet unidentified potential
projects.
Essentially, what we did, in close cooperation with the
State and with the tribe, is, following the enactment into
State law, the compact looked at the Federal piece, we agreed
consensually on the Federal role. And the way the statute
before you is drafted, is that the compact applies except to
the extent that there's anything in this Federal law that is
inconsistent with it. And that provision, in particular, is
essentially moot by the--I think, by the fact that this Federal
law would be enacted.
Mr. Doolittle. OK. So you've subsequently determined that
it merits your support?
Mr. Hayes. That's correct.
Mr. Doolittle. The legislation, I guess, reflects your
desires as to what should happen?
Mr. Hayes. That's absolutely correct, Mr. Chairman. Just to
explain a bit more, at the time the State passed the compact,
there was not any precise understanding of what the Federal
role, funding-wise, responsibility-wise, might be. There were
certainly some indications of what the State was looking for,
but we needed to work those out, and we subsequently did, and
this legislation embodies the results of that shared view.
Mr. Doolittle. Does the administration have any reservation
about the legislation?
Mr. Hayes. We do not.
Mr. Doolittle. What happens to the settlement if the
Federal Government fails to construct the works authorized in
the settlement?
Mr. Hayes. Mr. Chairman, I'm not certain, to be honest,
what would happen. I mean, I think we have a very clear and
explicit responsibility under this law to construct those
works. I would imagine that if we failed in that
responsibility, we would be subject to some legal challenges at
the least.
Mr. Doolittle. I guess there's language in here in the bill
on page 21, (c)(1), it says, ``Upon passage of this act, the
tribe shall execute a waiver and release of the following
claims against the United States, the validity of which are not
recognized by the United States, provided that the waiver and
release of claims shall not be effective until completion of
the appropriation of the funds set forth in Section 11 of this
act and completion of the requirements of Section 5(b) this
act.''
So it appears to read that unless everything is done, then
this waiver will not be complete. Is that your understanding?
Mr. Hayes. That's correct. My counsel is telling me that's
correct.
Mr. Doolittle. So if you did nine-tenths, just for the sake
of argument, of the funding of the projects and didn't do the
remaining one-tenth, then there would be no waiver in effect?
Mr. Hayes. I suppose there's that theoretical possibility,
Mr. Chairman. These are quite well-defined projects, though,
and very doable. I don't think any of the parties are concerned
about that issue.
Ms. Cosens. Mr. Chairman, may I supplement the answer?
Mr. Doolittle. Yes, Ms. Cosens.
Ms. Cosens. I think if I could refer you to the same
section that you're looking at, number (c)(4) in the tribal
release of claims, one of the concerns that came up when we
were finally negotiating these with the Federal Government,
since appropriations would occur over a period of time, is what
happens if some of the appropriations occurs, some of the dams
are repaired, and then the will to provide further funding is
not there. Does the tribe still retain its entire claim against
the United States? And this provision provides that there would
be offset for funds that have already been spent.
Mr. Doolittle. OK. Thank you for pointing that out.
Suppose the government took 20 years to do this. Is there
any maintenance of effort, or is this anything in here
governing how long this might take?
Ms. Cosens. Mr. Chairman, the one provision of the compact
that does have a deadline in it is entry of the decree in water
court. The funding does not have a deadline on it for entry of
the decree. The parties were concerned with finalizing these
claims as quickly as possible, and we provided a 3-year
deadline. If that deadline is not met, the United States'
approval is withdrawn from the compact and then the tribe may
withdraw. A 3-year deadline with our water court we feel is
quite reasonable to meet.
We had similar provisions in the Northern Cheyenne
Settlement Act that was passed by Congress and we did meet
those deadlines.
Mr. Doolittle. But it's--knowing just how the Federal
Government works from time to time, at least the congressional
part of it, if that decree actually won't be allowed, even if
it's sought in court, under this (c)(1), I don't think it takes
effect until all of those things have been done, does it?
Ms. Cosens. Actually, Mr. Chairman, the appropriations are
contingent on entry of the decree. The Department of Justice
communicated to us that they were very concerned that there be
a final decree before the Federal obligations to provide
funding kicked in. So we need to get the decree entered before
the funding can actually be used by the tribe.
Mr. Doolittle. But the decree isn't effective until the
appropriations are completed, is it?
Ms. Cosens. Mr. Chairman, the waiver by the tribe is not
effective until the appropriations are completed.
Mr. Doolittle. The waiver is not effective until the
appropriations are completed. I suppose the way as a practical
matter it would work, they would fund the appropriations,
hopefully complete them.
But, I mean, suppose they run into budget problems or
something? For whatever reason, it's never completed. Is this--
what happens then? Are you just in limbo? I mean, they've never
declared they're not going to complete them, they just haven't
appropriated all the money they're supposed to appropriate.
What would happen to that in that circumstance?
Mr. Hayes. I think, Mr. Chairman, what would happen is that
the tribe would potentially have at least part of its claim
still against the United States but there would be an offset.
To the extent that funds have been provided for the projects
and there are benefits flowing to the tribe, they would be an
offset against a breach of trust claim.
Mr. Doolittle. So you think they would have to file an
action for breach of trust, then?
Mr. Hayes. Yes, yes.
Mr. Doolittle. I mean, but that's--how do we know when the
trust has been breached?
Mr. Hayes. Well, that would be in litigation. That would be
a subject for a Federal Government action. So in our sense, we
think that's fair, Mr. Chairman. We do not--we would not expect
the tribe to waive completely its potential rights against the
United States unless and until, rather, any--precisely because
of the potential that this would not be fully implemented.
Let me say, though, that we have worked closely with OMB in
connection for the funding for this matter. And as you can see,
the funding is a multiyear funding scenario, which has been
worked into the potential budgets in outyears for both the BIA
and Bureau of Reclamation budgets which would be sharing
responsibilities for this funding. And, in fact, our track
record in terms of implementing Indian water rights settlements
has been quite good in terms of Congress and the administration
working together to come up with the funding to actually
implement enacted settlements.
Mr. Doolittle. What are you estimating is the total amount
of time to complete the appropriations?
Mr. Hayes. I think it's over a 3-year period.
Mr. Doolittle. OK. Well, is the Secretary's signature of
this settlement a final commitment, then, to carry out the
terms of this agreement?
Mr. Hayes. Yes, Mr. Chairman.
Mr. Doolittle. Is it the administration's position that
executing paperwork that makes no change in the physical world
does not constitute a major Federal action under the National
Environmental Policy Act?
Mr. Hayes. Well, let me explain that if I can. I think
you're referring, Mr. Chairman, to Section 11, or rather 13, 13
(f), of the bill.
Mr. Doolittle. Right.
Mr. Hayes. That needs to be read in connection with 13 (e).
The administration's position is that environmental compliance
for all physical elements of the project needs to be completed.
And, in fact, in connection with our policy of trying to
identify if there are any environmental issues as soon as
possible, much of the NEPA analysis on the major on-reservation
activity, the enlargement of the Bonneau Reservoir, has already
been completed.
So we are comfortable with the substantive application of
NEPA for all physical activities. What section 13 (f) does is
simply say that the signing of the compact itself in the
context in which we are, with the NEPA applying to the physical
activities, does not itself trigger an additional obligation.
Mr. Doolittle. Well, then, I think your answer--which was
fully explained, I appreciate that--but it would be ``yes,''
then. It does not constitute a Federal--a major Federal action
in your view, the mere execution of it?
Mr. Hayes. In this context, we're comfortable with that.
Mr. Doolittle. And so I think you've explained this, but
apparently then--well, I will just ask the question: Does the
administration believe that it is more appropriate for NEPA,
ESA and other environmental compliance processes to be carried
out at the implementation stage, when actions are not merely
contemplated in theory but actually proposed?
Mr. Hayes. I'm not sure I understand the question, Mr.
Chairman.
Mr. Doolittle. Well, I was just looking--I think that
particular sentence came out of the letter that you sent, and I
was just--I have a special interest in this. Let's see. This is
a letter to--I guess responding to questions posed by Senator
Campbell's committee. There's a date stamped on it, August
31st. And in there--let's see, you're responding to questions,
and you state in that letter, ``Moreover, we believe that it is
more appropriate for full NEPA, Endangered Species Act and
other environmental compliance processes to be carried out at
the implementation stage, when actions are not merely
contemplated in theory but actually proposed.'' I assume you
still believe that.
Mr. Hayes. Certainly. In this context, but I hope this
won't be taken out of context, this is--the context here is in
a situation where the possibilities for enhancing the water
supplies have been well studied for years on the reservation,
where NEPA in fact had already been well underway for the major
aspect of the water enhancement program on the reservation. I
guess I would caution use of that sentence outside the context
of this matter.
Mr. Doolittle. I just--I'm glad you've got it in there,
because I felt it's been appropriate on a number of occasions
for many of the reasons that you've mentioned. I don't think
this is a unique circumstance. But, you know, we constantly get
the administration objecting and calling that type of language
``veto bait'' and implying that it's--or not implying, I mean
it's basically stating that it's unreasonable, and I don't
believe it is a major Federal action.
And I guess you don't either, or else if it were, you would
have to be doing all of these studies before the Secretary were
able to execute the contract.
Mr. Hayes. Well, in fact, we have done most of the studies
already.
Mr. Doolittle. But you haven't done them all, and to all
the specificity required, have you?
Mr. Hayes. No, that certainly is the case. That's certainly
the case.
Mr. Doolittle. And as you pointed out, or as it says in the
law itself, of course, before any of these projects is actually
carried out, all the necessary environmental work will have to
be completed?
Mr. Hayes. That's correct.
Mr. Doolittle. That I think is a reasonable policy, and I'm
glad the Clinton Administration agrees.
This matter of the reservoir, Elwell, Lake Elwell off the
reservation, let me ask, Mr. Sunchild, do you envision
receiving a distribution system from Lake Elwell to the
reservation?
Mr. Sunchild. Yes, we do.
Mr. Doolittle. And who are you anticipating will be
providing that?
Mr. Sunchild. At this point right now there's a feasibility
study that will happen with this money that's--if it's
allocated.
Mr. Doolittle. What is the approximate cost that you're
hearing for--I realize it's being studied, so you only will
perhaps have a ballpark figure. But what's a ballpark figure
for building the distribution system from that reservoir to
your reservation?
Mr. Sunchild. Mr. Chairman, at this point I can't answer
that without the feasibility.
Mr. Doolittle. Can anyone give us a ballpark figure,
stipulating that it's subject to completion of the study?
Mr. Hayes, do you have any idea about that?
Mr. Hayes. Well, we really can't, Mr. Chairman, because the
method of potential delivery is a key question. There has been
discussion in the past of a potential pipeline from Tiber
Reservoir to the reservation, but that is extraordinarily
expensive.
And the feasibility study is going to look at other
potential options, including the release of the water at the
reservoir and the potential pickup of the water downstream out
of the Missouri right up to the reservation, which will be a
much shorter distance and potentially tremendously cheaper in
terms of costs.
Mr. Doolittle. The distance from the reservoir of that
pipeline you're talking about to the reservation is about 50
miles?
Mr. Hayes. That's correct.
Mr. Doolittle. And if you did, it would be releasing the
water and then picking up it in Missouri river. What distance
would that be from there to the reservation?
Mr. Sunchild. Mr. Chairman, I would estimate about 30
miles.
Mr. Doolittle. That would be 30 miles. We're still talking
about a major, even at 30 miles, a major conveyance system?
Mr. Hayes. Yes.
Mr. Sunchild. Yes.
Mr. Doolittle. And I guess, what is the intention then with
releasing the acre feet? Is that then--the intention is to
release it to pick up at the other end?
Mr. Hayes. That's potentially one scenario that will be
evaluated, Mr. Chairman.
Mr. Doolittle. Is there any intention to satisfy existing
water needs to downstream water users?
Mr. Hayes. I think, Mr. Chairman, the downstream water
users' needs will be satisfied with the on-reservation
enhancements, and what we're talking about here is a longer
term imported water supply that would be needed at some point
in the future for anticipated on-reservation growth.
Ms. Cosens. Mr. Chairman, if I could also answer that
question.
Mr. Doolittle. Yes. Yes, please jump in there, Ms. Cosens.
Ms. Cosens. As Mr. Hayes says, the compact fully protects
downstream water users for any impact by the tribal water
right. In this part of Montana, the groundwater resources are
very saline for the most part, and in some areas where there is
good water, it's a very low yield. And many of the communities
in the surrounding areas already have put in rural water
systems for treatment and transport of surface water, so
there's an existing infrastructure already in place.
Part of the feasibility study will look at whether it will
sort of bring in an economy of scale and reduce costs if more
of those rural water systems that are already in place actually
attach to a system that would go to the tribe, and that's one
thing that may lower costs in this area. But certainly at this
point the development and treatment of surface water for
drinking for the tribe lags way behind the surrounding
communities.
Mr. Doolittle. The tribe in its testimony has indicated
they're going to come back to Congress to provide for the money
for this, I guess, for their part of the system, and it
wouldn't be paid for by other water users as was described.
Is that your understanding, Mr. Hayes?
Mr. Hayes. We don't know what the tribe's ultimate
intentions are or what--how this would play out in the future.
If I can make a couple of comments, as the administration, we
were uncomfortable with making an open-ended financial
commitment to the tribe in connection with a potential future
water delivery system whose outline and potential costs and
timing and everything else is unknown.
We recognize, obviously, a trust responsibility. And we
evaluated that and concluded that setting aside a $15 million
trust fund, which could earn interest over time, would satisfy
the Federal trust responsibility in this regard and would be
the basis for waiving claims, both ways, in terms of Federal
reserve water rights.
If at some point in the future the tribe wants to approach
the administration, the then administration or the Congress,
and ask for programmatic funds to supplement this fund, I
suppose they're free to do so. And that will be for a future
Congress and a future administration to evaluate. But that
would not be in the context of a resolution of an Indian water
rights settlement, that would be in the context of a request
for programmatic funds.
Mr. Doolittle. Ms. Cosens, could the proposed MNI water
system from the Tiber be tapped by nontribal members for tribal
profit?
Ms. Cosens. Mr. Chairman, I believe that is one of the
options that the tribe has looked at, is ownership of the
system. I think the tribe could better answer on their
discussions with surrounding communities on that. Certainly,
one aspect, as I mentioned earlier, that would be looked at is
I think there are eight rural water systems between Tiber and
the reservation whose lines are very close to or actually cross
the path that a pipeline would have to take.
And contribution by those systems to building the pipeline
so that they can tie into it would certainly reduce the overall
per capita costs of a system. I know that's being looked at
seriously. And I would defer to the tribe whether there have
been discussions of marketing.
Mr. Doolittle. Do you want to comment on that, Mr.
Sunchild?
Mr. Sunchild. Yes, Mr. Chairman, as far as marketing, I
think there was some thought that some individual communities
would go to the BOR for some sort of allocation for their water
needs.
Mr. Doolittle. OK.
Mr. Sunchild. We never intended to sell to non-Indian
communities.
Mr. Doolittle. It was your intent to keep it for the tribe,
then?
Mr. Sunchild. Yes, sir.
Mr. Doolittle. OK. Back to Ms. Cosens. What impact do you
think this settlement will have on other implied reserve
Federal water rights that are being expanded, such as those for
Forest Service, national parks, wilderness areas, watershed
protection, cattle grazing, big game and waterfowl refuges,
recreation, planned occupancy for the military and other
governmental personnel, tree nurseries and seed beds, fire
fighting? I mean, what impact do you think that might have on
some of those other things?
Ms. Cosens. Mr. Chairman, the short answer to your question
would be no impact whatsoever.
Maybe I could supplement that by explaining one of the
reasons why Montana has chosen this process of negotiated
solution is, it does allow them to tailor solutions to the
specific circumstances of a particular reservation, come up
with site-specific solutions, and avoid wading into any of the
questions that might raise a precedent in other areas.
In addition, it has allowed the State of Montana to provide
some certainty in these areas by quantifying the reserve water
rights that are unquantified at this point and place some
uncertainty on it. I think that the State of Montana has been
very successful in this process, and the values of negotiations
for the people of Montana have been substantial.
Mr. Doolittle. Is it fair to say your main interest in this
is certainty?
Ms. Cosens. Mr. Chairman, I think that we have several
interests in this process. Certainly, certainty is probably the
primary thing that caused the legislature to create the Reserve
Water Rights Compact Commission, starting the general stream
adjudication in order to quantify these rights. But over the
years I think we have found that the benefits are far greater
than that.
If I could just go through maybe three of the main benefits
that we've seen from these negotiations, certainty is
definitely one quantification. But quantification can be
achieved through litigation as well, and you can get certainty
that way.
Litigation is a highly costly alternative, and what
litigation can't accomplish is protection from junior water
users. In Montana most of the basins that have Indian
reservations in them are highly appropriated, and in most cases
the Indian reservations was created prior to most of the
development of water. And the only avenue we have for
protecting those junior uses is through settlement, and again,
we've been very successful in doing that.
Secondly, through these compacts, we've been able to
resolve many more issues then simply the quantification of
water. The beauty of settlement is that you can wrap a number
of issues into a single package.
And the main one that I'm thinking of is the dispute
resolution once the compact is implemented. If a reserve water
right is litigated, you get a quantification, but the question
remains open as to what form people have to resolve disputes
after that quantification occurs. And I can tell you in our
negotiations, working with the ranchers around Rocky Boy's,
that they were probably as concerned or more concerned with
what remedy they would have if the obligations that were put
forth in the compact were not lived up to or water wasn't being
used in that way than they were with the actual quantification.
It's a small comfort to a water user that has their head
gate opening on to a dry stream that they have the right to
spend the entire irrigation season arguing over what court they
should be resolving their disputes in. And this compact and the
other ones that we have settled set up a dispute resolution
mechanism by creating a tribal-State compact board that would
resolve those disputes.
And I think the third benefit that we've seen is that it
creates negotiation rather than litigation, creates improved
relationships, both between tribes and their neighbors and
between tribes and States. We can all go home tomorrow, but the
tribe and the ranchers out around the Rocky Boy's Reservation
will live with whatever we end up with for generations to come.
I think in the Western Governors Association letter that I
attached to my testimony, there was also a concern expressed
with this. The letter talks about the hiatus in Federal
approval of these settlements and the concerns of what that
break down might be. And if I can quote from that, they stated
that the prospects for returning to an era of adversarial
relations between tribes and their local neighbors and the
neglect of addressing tribal rights appeared imminent because
of that breakdown. I think that many of the Western States are
concerned with going back to a system in which the only avenue
we have is litigation.
Mr. Doolittle. Mr. Hayes, we've read and heard that several
of the dams in the reservation are at risk. I just wondered if
you could tell me why the department has allowed them to
deteriorate to such an extent?
Mr. Hayes. Well, the funding for the safety of dams program
in the BIA has been significantly curtailed in recent years.
And the----
Mr. Doolittle. Can I just jump in and ask, why have you
pursued such a policy of allowing that to be curtailed?
Mr. Hayes. We have sought appropriations from Congress for
the BIA budget for this purpose and have not gotten the
appropriations we've requested, Mr. Chairman. It's quite--it's
as simple as that. What we've had to do is prioritize the dams
that are in the worst shape so that the limited funds available
can be put to those BIA facilities.
In the case of the Bonneau Reservoir, at one point the
Bonneau Reservoir I think was in the top five or so as one of
the most unsafe dams. The Bureau took funds to stabilize the
facility and take it out of the red zone, if you will. However,
it was--it's not efficient to do a permanent fix at the same
time that there's a contemplation of an enlargement of the
facility. So the permanent fix will be done in connection, in
fact, with the enhancement of the reservoir capacity. And that
is an important purpose here. But we're hopeful that the
temporary fix will provide adequate safety.
Mr. Doolittle. Has Congress actually specifically turned
down the requests for the safety of dams program?
Mr. Hayes. Mr. Chairman, I don't know the answer to that,
in terms of whether it's been targeted at this program or not.
I suspect not. I suspect it's part of the programmatic cuts for
the BIA, which has forced the BIA to try to put its scarce
dollars to any number of often life-threatening situations, be
it safety of dams or people-oriented projects. I'm happy to
look into that and get you some more information, if you would
like, Mr. Chairman.
Mr. Doolittle. I would appreciate that, because my hunch is
if you made a specific request for that, it would be fully
funded. I just wonder how many other dams are in the yellow
zone or the red zone.
Mr. Hayes. It's a serious issue, and we would be happy to
get some more information to you, Mr. Chairman.
Mr. Doolittle. I think that would be good.
Ms. Cosens, you state that the Western Governors continue
to support negotiating rather than litigated settlement of
Indian water rights disputes, and that's certainly the
direction I would want to encourage.
Do the Western Governors generally support extending
implied reserve water rights to include the quantification of
additional uses, such as fish and wildlife enhancements?
Ms. Cosens. Mr. Chairman, what the Western Governors
Association supports is the ability of States to choose their
own paths in this. Certainly there is no specific endorsement
of specific types of reserved water rights. As I stated
earlier, one of the things that we're able to avoid when we
negotiate is setting precedent. We can tailor a solution to the
specific needs of the reservation.
In the case of Rocky Boy's with the fish and wildlife
enhancement, it was a need that the tribe brought to the table
that we were able to agree to without affecting any other water
users and with the support of the other water users. I think
that there has been a long history of Federal deference to
State water law, probably because we each have our own unique
solutions that we can put forward in these cases. Certainly the
Western Governors Asso-
ciation supports their neighboring States' efforts to choose
their own solutions in those cases.
Mr. Doolittle. How many people do you have in Montana?
Ms. Cosens. Less than a million, Mr. Chairman.
Mr. Doolittle. You're in the fortunate circumstance of, I
believe, of having sufficient water for your needs. Is that not
the case?
Ms. Cosens. Mr. Chairman, that's not, certainly when you
compare our State to other States. Because of our low
population, that's probably true, but because of our high
reliance on agriculture, there are basins that are water short
and because particularly east of the Continental Divide it is a
very arid region. The Milk River Basin, in which this
reservation is located, has many periods of short water supply.
And part of that is brought on by the fact that our climate
is highly variable. We can have years where we have more water
than we could ever need, and then we have expanses of years
where we have extreme drought, so it is variable. We're not
without our shortages, but certainly I think we are at an
advantage in having a low population.
Mr. Doolittle. And you do have the--you're able to--in my
State, where we're water short on the average now and are going
to be more water short when some of those other basin States
claim everything they're entitled to, we--it's not just
theoretical. We're at the point where somebody is making a
claim, somebody else is going to give up the water they have,
whereas you are apparently able to parcel this out and make
everybody happy and that's good. I wish it were that way for
everyone.
But there is some concern about approving this kind of a
settlement that may be setting some real precedent. I know it
says it's not intended to set a precedent. But it will set a
precedent, and most of our Western States are water short.
And so there is no reluctance on the part of the Committee
to acknowledge the hard work that has gone into this
legislation and the compact. And certainly we understand your
desire, for the reasons you mentioned, certainty and a more
desirable dispute resolution process, and just the comity and
general good feelings amongst the different interests within
your State. Those are all positive goals.
But this whole implied water right reservation system has
some substantial ambiguous areas in it. And when it comes to
dealing with the non-Indian claims or the downstream, the
junior rights holders, there's lots of issues that come into
play, as you know, but you've been able to work them all out in
your case.
The Subcommittee is grappling with what do we do in some of
these other areas where we're not going to be able to work them
out as nicely as you have and, where you're going to have to
deal with taking--you know, not having a larger pie, so to
speak, but reallocating the pieces thereof, and that's a much
more difficult question.
And I think this hearing has afforded us the opportunity to
at least begin to explore some of these issues. And I'm sure we
will have--if Mr. Hill were here, I know he would have a number
of questions that he would want to ask you, and frankly a
number of other members who are just probably in the air now as
we speak. So there will be lots of other questions we will
probably tender in writing, and I ask you to respond as
expeditiously as you can.
Ms. Cosens. Mr. Chairman, could I respond to the last
comment?
Mr. Doolittle. Yes, certainly.
Ms. Cosens. I apologize if I misled you into thinking that
the Milk River Basin has abundant water to allocate. That's not
why we were able to settle in this area. We have 6 years of
intensive work with water users in the area resting on this
settlement and waiting for it to move forward. This is by no
means a region with abundant water. We get 12 inches of
precipitation a year on the average in the part of the
reservation that has agriculture, and ranching and farmland
around it is fully developed.
Milk River notoriously has shortages in waters. The Milk
River has one of the earliest Bureau of Reclamation projects
authorized by Congress. And I'm sure you know enough about
reclamation projects, having a number of them in your State,
that those projects historically were built in areas where
there was not sufficient water to support the agriculture in
the area.
So as early as the early 1900's when that project was
authorized, there were water shortages in this part of Montana.
It's not because of the population, it's because of the
agriculture, which uses substantially more water than in
municipalities. We don't have the concern that other States do
with municipal water supply, and one of the results of that is
that the water isn't worth a lot in Montana, like it is in the
Southwest.
But in terms of shortages for allocations, we have very
difficult issues that we need to deal with. This compact
allocates 20,000 acre feet to the Rocky Boy's Reservation. I
think if you compare that with other agreements, both in the
Southwest and in Montana, that's a very small amount of water,
and it reflects the fact that the water supply on the
reservation is extremely limited.
Mr. Doolittle. Well, I didn't mean to imply that it was an
easy thing for you to do. But we're losing, even in wet years,
60 percent of water deliveries say to our farmers in the San
Joaquin Valley, which is probably the most productive area in
the world for agriculture, and we're losing it due to fish and
wildlife requirements.
You're not experiencing that kind of thing to that degree
in Montana, are you?
Ms. Cosens. In certain areas, Mr. Chairman, in certain
areas of Montana, we are. The whole western part of the State
is part of the Columbia River System.
Mr. Doolittle. You do have a taste of it, don't you?
Ms. Cosens. We do.
Mr. Doolittle. Well, I appreciate all of you coming up here
to offer your testimony. We are very interested in this
subject. We want to achieve a good result for you and for
others in the future, so we will be looking carefully at the
facts and the information you provide us. And we'll hold the
record open for the responses that you provide to our
questions.
And with that, why, this hearing is adjourned.
[Whereupon, at 3:16 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows.]
Statement of David J. Hayes, Counselor to the Secretary of the
Interior, Department of the Interior
Good Afternoon. I am David J. Hayes, Counselor to Secretary
of the Interior Bruce Babbitt. It is my pleasure to be here
this afternoon to testify on behalf of the Administration in
support of H.R. 3658. This bill represents the successful
culmination of approximately eight years of negotiation among
the United States, the State of Montana and the Chippewa Cree
Tribe of the Rocky Boy's Reservation over water rights disputes
being litigated in the case entitled, In the Matter of the
Adjudication of All Rights to the Use of Water. Both Surface
and Underground, within the State of Montana. It represents a
true partnership among Federal, State and Tribal interests. By
working hard, together, the parties have forged a water rights
settlement that satisfies Tribal rights and needs, while also
taking into account the rights and needs of non-Indian
neighbors, and enabling all affected Montanans to plan for the
future with confidence and certainty.
The Rocky Boy's Reservation, located in North Central
Montana, consists of approximately 110,000 acres and includes
several tributaries of the Milk River. The average annual water
supply on the Reservation is limited by hydrological delivery
constraints and inadequate storage infrastructure. The Tribe
has over 3,500 enrolled members and a population growth rate
well above the typical rate for tribes of 3 percent. Tribal
unemployment averages around 60-70 percent in an economy based
primarily on agriculture, including raising livestock. Existing
Reservation water use includes irrigation, livestock
consumption, wildlife and recreational use, and municipal and
industrial uses. The Tribe's municipal water is derived from 12
community wells and approximately 240 individual wells. A
majority of the domestic wells suffer from low production due
to aquifer overdraft or improper siting. In addition,
groundwater contamination from hydrogen sulfide, iron and
manganese contributes to well casing corrosion and makes the
water very unpleasant to drink or use for other domestic needs.
Since the Tribal economy is heavily based on livestock and
hay is the principal crop grown using irrigation, the Tribe's
goal is to maintain, or perhaps slightly increase, the current
level of irrigated agriculture on the Reservation in order to
avoid having to purchase supplemental livestock forage on a
regular basis. Without enhanced on-Reservation storage and
other infrastructure improvements, experts calculate that,
within 20 to 40 years, the Tribe will be unable both to
maintain its modest agricultural base and meet the domestic
water needs of its rapidly growing population.
The United States, the State and the Tribe struggled for
many years to find an immediate solution to the problem of an
inadequate Reservation water supply. For a time, the Tribe
viewed the only solution to be the importation of water from
the Tiber Reservoir, a Bureau of Reclamation facility some 50
miles from the Reservation. In this context, the water would
have been delivered to the Tribe as part of a combined Indian/
Non-Indian system. This system would have been very expensive
and would have required an extensive Federal subsidy. Moreover,
this system would have cost the Federal Government far more
than it could reasonably be expected to pay to settle the
Tribe's water rights. Rather than pursue this expensive
regional water system, the parties decided to focus on
developing existing Reservation water supplies and setting
aside funds that will be available for use in a future plan to
supplement on-Reservation water supplies. This is the approach
that has been adopted in H.R. 3658.
Under the terms of H.R. 3658, Congress would approve, and
authorize participation in, a Water Rights Compact entered into
by the Tribe and the State. The Compact was enacted into
Montana law on April 14, 1997, and recognizes the Tribe's right
to approximately 10,000 acre feet of water on the Reservation.
In order to enable the Tribe to exercise its on-Reservation
water right, the United States would contribute $24 million for
four specific on-Reservation water development projects and
additional funds of no more than $1 million to cover Bureau of
Reclamation (BOR) administrative costs associated with these
construction activities. First and foremost among the projects
is the repair and enlargement of Bonneau Reservoir, a facility
that has ranked in the top ten of the Department's ranking list
of most dangerous dams. Other projects include repair and
enlargement of several smaller on-Reservation irrigation and
recreational dams, including East Fork, Brown's and Towe's Pond
dams.
H.R. 3658 also addresses the Tribe's future water needs by
providing the Tribe with the right to an additional 10,000 AF
of water stored in Tiber Reservoir. This allocation is only a
small percentage of the 967,319 acre feet of water stored in
Tiber Reservoir and will not impact on any other use of the
Reservoir. The Department has carefully considered the impact
of the allocation on the reserved water rights of other Indian
tribes and has concluded that such rights will not be
negatively affected.
It is important to note that by making the Tiber Reservoir
allocation, the United States is not undertaking any obligation
to deliver water to the Reservation. Section 8(d) of the bill
expressly provides that the United States shall have no
responsibility or obligation to deliver the Tiber allocation or
any other supplemental water to the Reservation.
Nonetheless, in order to assist the Tribe when the time
comes that it needs additional on-Reservation water supplies,
H.R. 3658 provides that the United States will set aside $15
million in trust toward the planning, design, construction,
operation, maintenance and rehabilitation of a future
Reservation water supply system. In addition, the bill
authorizes BOR feasibility studies totaling $4 million to
explore alternative methods of augmenting the Rocky Boy's
Reservation water supply, as well as analyzing region-wide Milk
River water availability and enhancement opportunities. One
particular alternative that will be studied will be the
feasibility of releasing the Tribe's proposed Tiber Reservoir
allocation into the Missouri River for later diversion into a
treatment and delivery system for the Reservation. We are
hopeful that this alternative or others identified by the BOR
studies will prove to be more realistic and reasonable
solutions than an expensive rural water supply system centered
upon a pipeline from Tiber Reservoir. The BOR studies should
provide an in-depth understanding of the Milk River Basin water
supply, its potential and limitations, that will be of valuable
assistance to the United States, the State of Montana and
Montana Indian tribes in our efforts to address Indian water
rights disputes. The studies will address, as well, some of the
water supply problems facing many small North Central Montana
communities.
Other components of the Chippewa Cree settlement are a $3
million Tribal Compact Administration fund to help defray the
Tribe's Compact participation costs and a modest $3 million
Tribal Economic Development fund to assist the Tribe in putting
its water to use.
The total Federal contribution to the settlement is $50
million. We believe that this expenditure is justified. The
Tribe has presented the United States with a legal analysis
setting forth a substantial damages claim against the United
States. The Department of Justice and the Department of the
Interior have analyzed the claim and concluded that settlement
is appropriate. In addition to releasing the United States from
damage claims, the settlement also will relieve the United
States of the obligation to litigate, at significant cost and
over many years, the Tribe's water rights. The certainty
secured by the settlement is, in fact, its central feature. By
resolving the Tribe's water rights, all of the citizens of this
area of the State of Montana will be able to plan and make
investments for the future with the assurance that they have
secure and stable water rights.
Like other Indian water rights settlements, the benefits to
accrue to the Tribe and other settlement parties will be
available only after a final water rights decree is issued by
the appropriate court. We expect that the process of entering
and gaining final approval of the decree will take
approximately eighteen months to two years. As motivation to
keep the court approval process moving, the settlement parties
have set a three year deadline for finalization of the decree.
The Department of the Interior is committed to advancing the
court process and other settlement implementation tasks as
expeditiously as possible in order to avoid having to seek
Congressional relief from the settlement deadline. The Tribe
has waited many years to see its water rights become a reality
and we do not want to see that wait prolonged any more than
absolutely necessary.
In summary, the Administration strongly supports H.R. 3658.
To strengthen the probability of securing appropriations for
this settlement, we support swift passage of H.R. 3658. We
congratulate the Chippewa Cree Tribe for this historic
achievement and we extend our thanks to the State of Montana,
and, in particular, the States Reserved Water Rights
Commission, for the indispensable role it played in bringing
this settlement to fruition.
I will be happy to answer any questions you may have.
------
Statement of Bruce Sunchild, Member of the Business Committee of the
Chippewa Cree Tribe of the Rocky Mountain Boy's Reservation, and Vice-
Chairman of the Chippewa Cree Water Rights Negotiating Team
Chairman Doolittle, and Representative Hill, Honorable
Members of the Committee:
My name is Bruce Sunchild. I am a member of the Business
Council of the Chippewa Cree Tribe of the Rocky Boy's
Reservation. The Business Council is the gov-
erning body of the Chippewa Cree Tribe. I also serve as the
Vice-Chairman of the Tribe's Water Rights Negotiating Team. I
am here to testify on behalf of the Tribe in support of House
bill 3658 entitled ``The Chippewa Cree Tribe of the Rocky Boy's
Reservation Indian Reserved Water Rights Settlement Act of
1998.'' I am accompanied today by Paul Russette, the Tribe's
Water Resources staff, and the Tribe's attorney. I appreciate
the opportunity to testify before you today, and I subunit for
the record, the Tribe's detailed written testimony.
I would like to begin by expressing the Tribe's great
appreciation to Representative Hill, and to his staff for their
help and support in moving this bill forward. I would also like
to thank Representative Doolittle, and the staff of the Energy
and Power Subcommittee for assisting the Tribe in obtaining a
hearing on H.R. 3658.
The Tribe, the State of Montana, and the United States, are
in full agreement that the settlement embodied in H.R. 3658 is
beneficial for all parties. The settlement consists of the
Compact entered into between the Tribe and the State of Montana
on April 14, 1997, and the bill before you today. The bill
ratifies the Compact and provides funding to enable the Tribe
to fulfill its obligations under the Compact, to compensate the
Tribe for its release of breach of trust claims against the
United States, and to enable the United States to carry out its
trust obligations by assisting the Tribe in obtaining the water
necessary to make the Rocky Boy's Reservation a permanent self-
sustaining tribal homeland.
The settlement benefits the Tribe in a number of important
ways.
First, it ratifies the Compact and quantifies the Tribe's
on-reservation water rights at 10,000 acre feet per year. The
remainder of the annual water supply on the Reservation will be
used to mitigate impacts on downstream non-Indian users. The
settlement provides $3 million to enable the Tribe's to carry
out its administrative duties under the Compact.
Second, the settlement provides a future source of drinking
water for the Tribe by setting aside 10,000 acre feet of water
in Lake Elwell behind Tiber Dam. The Rocky Boy's Reservation is
located in a water-short area, and existing on-Reservation
water supplies are insufficient to meet the Tribe's current and
future drinking water needs. The settlement provides $1 million
to study alternative means to transport the Lake Elwell water
to the Reservation. and $15 million is authorized as seed money
to be applied toward the design and construction of the
selected water importation system.
Third, the settlement provides $25 million to improve on-
Reservation water supply facilities. These facilities will
enable the Tribe to enhance the availability of water supplies
on the Reservation to improve Tribal agricultural projects, to
ensure that existing dams are made safe, and to meet the
Tribe's obligations under the Compact to mitigate impacts on
downstream water-users.
Fourth, the settlement provides the Tribe with an economic
development fund of $3 million to assist us in furthering our
economic development plans on the Reservation.
The settlement also benefits the Tribe's non-Indian
neighbors in Montana.
First, it quantifies the Tribe's water rights and brings
certainty to the rights of the Tribe's non-Indian neighbors. It
thus eliminates the need for lengthy, expensive, and divisive
litigation.
Second, the Compact establishes guidelines for the day-to-
day administration of the water rights protected under the
Compact, both Tribal and non-Indian, and establishes a local
system for resolving disputes that may arise between Tribal
water users and non-tribal water users.
Third, H.R. 3658 will benefit the entire North Central
Montana region by authorizing a $5 million feasibility study to
examine ways to supplement the Milk River basin water supply.
This study will also undoubtedly further the United States'
efforts to settle the water rights of the other two tribes in
the Milk River basin-Blackfeet and Ft. Belknap.
The Tribe strongly urges Congress to enact H.R 3658 into
law during this session.
First, two of the dams on our Reservation which will be
repaired and enlarged with funds from this settlement are
classified by BIA as unsafe dams. However, those funds cannot
be expended by the Tribe until a final decree approving
settlement is entered by state water court. A final decree
cannot be entered until the Compact is ratified by Congress
through the enactment of H.R. 3658. And even then state court
procedure could take as long as two years. The longer we must
wait for funds to repair the unsafe dams, the greater the risk
that a tragedy will occur.
Second, there is no opposition to H.R. 3658. It is fully
supported by the Administration, as well as the Tribe and the
State-the first Indian water rights settlement to have this
distinction.
In conclusion, I thank you again for the opportunity to
testify on behalf of the Tribe in wholehearted support of H.R.
3658--``The Chippewa Cree Tribe of the Rocky Boy's Reservation
Indian Reserved Water Rights Settlement Act of 1998.'' I will
be happy to answer any questions from these Committees.
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