[Senate Hearing 110-105]
[From the U.S. Government Publishing Office]
S. Hrg. 110-105
S. 462, SHOSHONE-PAIUTE TRIBES OF DUCK VALLEY WATER RIGHTS SETTLEMENT
ACT
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HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
FIRST SESSION
__________
APRIL 26, 2007
__________
Printed for the use of the Committee on Indian Affairs
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COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
CRAIG THOMAS, Wyoming, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota LISA MURKOWSKI, Alaska
DANIEL K. AKAKA, Hawaii TOM COBURN, M.D., Oklahoma
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Sara G. Garland, Majority Staff Director
David A. Mullon Jr. Minority Staff Director
C O N T E N T S
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Page
Hearing held on April 26, 2007................................... 1
Statement of Senator Dorgan...................................... 1
Statement of Senator Thomas...................................... 22
Witnesses
Biaggi, Allen, Director, Department of Conservation and Natural
Resources, State of Nevada..................................... 17
Prepared statement with attachment........................... 18
Prior, Kyle, Chairman, Shoshone-Paiute Tribes, Duck Valley
Reservation.................................................... 9
Prepared statement........................................... 11
Ragsdale, W. Patrick, Director, Bureau of Indian Affairs,
Department of the Interior..................................... 6
Prepared statement........................................... 6
Reid, Hon. Harry, U.S. Senator from Nevada....................... 2
Prepared statement........................................... 4
Appendix
Ensign, Hon. John, U.S. Senator from Nevada, prepared statement.. 25
Heller, Hon. Dean, U.S. Representative from Nevada, prepared
statement...................................................... 25
SHOSHONE-PAIUTE TRIBES OF DUCK VALLEY WATER RIGHTS SETTLEMENT ACT
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THURSDAY, APRIL 26, 2007
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10 a.m. in room
485, Senate Russell Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. I will call the Committee to order. This is a
hearing of the Committee on Indian Affairs on S. 462, the
Shoshone-Paiute Tribes of the Duck Valley Reservation Water
Rights Settlement Act of 2007.
The purpose of today's hearing on the Duck Valley Water
Rights Settlement Act is to receive testimony that will guide
this Committee in reviewing legislation to ratify an Indian
water settlement and resolve tribal monetary claims against the
United States.
This particular settlement involves the tribes of the Duck
Valley Reservation, individual water rights holders, and the
State of Nevada. S. 462 will ratify an agreement that
quantifies the water rights of parties to the Nevada
adjudication of the East Fork of the Owyhee River. The bill
will legislatively settle the Duck Valley Tribes' claims
against the United States for compromising tribal water rights
and failing to maintain Federal irrigation projects serving the
reservation.
Today, we will hear from Senator Harry Reid, the bill's
sponsor. I believe this is the first time that the Majority
Leader of either caucus has testified before this Committee. I
know Senator Reid has long been a Member of this Committee, and
we welcome him.
I want to thank the Senator for his past service on this
Committee, and I am pleased that he continues to advocate
strongly on behalf of American Indians and Indian country on
important matters like health care, housing, law enforcement,
and more.
I look forward to hearing his testimony on this legislation
and learning how it will affect Nevadans. I understand Senator
Reid has an obligation on the Senate Floor which will require
him to leave before the hearing concludes, but we appreciate
him being here.
We will also receive testimony from Senator John Ensign,
the bill's co-sponsor. Although Senator Ensign cannot be here
this morning, his written testimony will be included in full in
the hearing record. The record of this hearing will remain open
for 2 weeks following today's hearing so that additional
testimony may be submitted as well.
The Committee will also hear directly from parties to the
negotiated water rights agreement and settlement discussions
involving the East Fork of the Owyhee River. I congratulate all
of the parties on reaching an agreement after decades of
litigation, administrative adjudications, and negotiations in
both Nevada and in Idaho. I understand that the Department of
the Interior has some concerns with the Nevada agreement and
bill, and we will look forward to receiving their testimony as
well.
Senator Reid, thank you for journeying over to the
Committee this morning. We look forward to hearing your
testimony.
STATEMENT OF HON. HARRY REID,
U.S. SENATOR FROM NEVADA
Senator Reid. Mr. Chairman, thank you very much. I do have
many fond memories of this Committee, the service especially
rendered by Senator Inouye for his many years of service and
being an exemplary Chairman, and you and I, of course, and our
years together in Congress. You have been the leader in talking
about Indian health and the problems of Indians in general. So
the Committee is well served by having you as Chair.
This bill, the Shoshone-Paiute Tribes of Duck Valley Water
Rights Settlement Act, is important because we know it will
benefit the tribes of Duck Valley, the ranchers, upstream water
users, and residents of the Northern Nevada and Southern Idaho
region. This bill will ratify the agreement reached by the
parties to Nevada's East Fork of the Owyhee River adjudication,
which is supported by the tribes, the State of Nevada and all
the affected individual water users.
Mr. Chairman, this tribe really deserves this. It is a
wonderful, beautiful scenic area. Of course, when the
reservation was placed, they [the Federal Government] picked a
place where the growing season is very short. It is on a very
small river. In Nevada, we don't have big rivers except the
Colorado. Most rivers are very, very tiny and they are few in
number.
This bill is supported not only by those that I have
mentioned, but the Elko County Board of Commissioners, where
the reservation is located in Elko County, NV. They support the
bill. The Nevada State legislators who represent this area
support the bill, Assemblyman Carpenter and Senator Rhoads.
Our bill only addresses the Owyhee River litigation. Both
my colleagues from the State of Idaho, Senator Craig and Crapo,
support the agreement to be ratified by this bill and support
the tribe in resolving its claims against the United States. In
a spirit of cooperation and consensus building, Senator Ensign
and I are working with our colleagues from Idaho on an
amendment that would limit tribal water marketing. We are going
to introduce that at the markup of this bill.
This legislation reflects many hard years of work, as you
mentioned in your opening statement, Mr. Chairman. All parties
have worked closely to create a bill that resolves one of the
last tribal water rights disputes in Nevada.
I strongly support this bill because it brings certainty to
water rights held by the tribes, family farmers and ranchers,
and the State of Nevada. It resolves tribal claims against the
United States for its failure to protect the tribes' water
rights and natural resources. And it ends decades of litigation
and negotiations.
How will these goals be accomplished? First, the bill would
approve ratifying and confirming the negotiated agreement. It
is important to resolve the water rights dispute because it
will allow farmers and ranchers to determine how much surface
water they can use for crops and grazing. It gives them
certainty, which they don't have now. The gauges, dams, and
irrigation canals will be rehabilitated or replaced to improve
irrigation and increase irrigable acreage in one of Nevada's
important agricultural areas.
Second, the bill will settle the tribes' longstanding
claims against the United States. As a result of the Bureau of
Reclamation's Owyhee Irrigation Project in the 1930s and the
Bureau of Indian Affairs' Duck Valley Irrigation Project during
the same time, the tribes' salmon and steelhead trout runs and
fish stock were destroyed. The tribe relied on these runs for
food, their local economy, and for cultural uses, and they did
this for many, many decades.
Further, because the United States failed to defend the
tribes' water rights when some of Nevada's early settlers
arrived along the Owyhee River, the tribe lost water rights to
support their fishing economy, their ranches, and their farms.
All of the tribes' claims against the United States in the
Owyhee River litigation will be settled by this litigation.
While the United States can never fully compensate the tribes
for their loss with money, I appreciate the tribes' willingness
to accept the proposed settlement figure.
Just as the tribes have compromised, I hope the Department
of the Interior and this Administration will work with Senator
Ensign and with me to address their concerns with the bill and
gain their support. I smiled, Mr. Chairman, when you said the
BIA did not support this legislation, that the Department of
the Interior did not support it. I have never known them to
support any of them. We always have to come and work and cajole
with the department. They have been difficult to work with at
times.
So I hope it is time to end this painful part of our
sovereign-to-sovereign relationship. I really appreciate the
Committee's time and consideration of this bill. Without
congressional action, the tribes, the State and affected
individuals will have to resume costly litigation. The tribes,
farmers and ranchers would not be able to manage their
businesses efficiently without knowing their surface and
storage water rights.
The Wild Horse Reservoir, frequented by outdoor enthusiasts
and fishermen would not be guaranteed sufficient water for
their use and enjoyment. And the tribe would not be able to
address their housing and economic development needs without a
settlement that provides funds for water and irrigation
infrastructure development.
This bill brings certainty to these individuals and
communities with water rights and finality to the parties of a
decades-old adjudication. I am proud to support the efforts of
our constituents in concluding the Owyhee River adjudication.
Thank you very much, Mr. Chairman.
[The prepared statement of Senator Reid follows:]
Prepared Statement of Hon. Harry Reid, U.S. Senator from Nevada
Mr. Chairman, Vice Chairman, and Members of the Committee. Good
morning.
It is a pleasure to be here, in this hearing room. As a former
member of this distinguished Committee, I've spent many hours here
working on difficult problems. Serving on this Committee with my good
friend and the former Committee Chairman, Senator Inouye, was a special
honor. And it allowed me to serve some of Nevada's most deserving and
vulnerable residents, which is something I am pleased and proud to
continue to do.
Thank you for inviting me to testify on this bill.
Senator John Ensign and I sponsored the Shoshone-Paiute Tribes of
Duck Valley Water Settlement Act because we know it will benefit the
Tribes of Duck Valley. the ranchers and upstream water users, and the
residents of the northern Nevada and southern Idaho region.
Indeed our bill to ratify the agreement reached by parties to
Nevada's East Fork of the Owyhee River adjudication is supported by the
Tribe, the State of Nevada and all of the affected individual water
users.
The Elko County Board of Commissioners--where the Reservation is
located--supports the bill. And the Nevada State legislators who
represent this area in Elko County--Assemblyman John Carpenter and
Senator Dean Rhoads--support the bill.
While our bill only addresses the Owyhee River litigation, both of
my colleagues from the State of Idaho, Senators Craig and Crapo,
support the agreement to be ratified by this bill and support the Tribe
in resolving its claims against the United States. In a spirit of
collaboration, Senator Ensign and I are working with our colleagues
from Idaho on an amendment that would limit tribal water marketing. We
expect to introduce the amendment during the Committee's mark-up of S.
462. The Nevada and Idaho delegations will continue to work closely to
pass this legislation that helps our constituents.
Mr. Chairman, this legislation reflects years of hard work and
compromise by Nevadans on matters that affect their livelihoods and
cultures. They have worked closely with us to create a bill that
resolves one of the last tribal water rights disputes in Nevada.
I strongly support this bill because:
It brings certainty to water rights held by the Tribes, the
family farmers and ranchers, and the State;
It resolves the tribal claims against the United States for
its failure to fully protect the Tribe's water rights and
natural resources;
And it ends nearly 2 decades of litigation and negotiations.
First, the bill would approve, ratify, and confirm the negotiated
agreement that quantifies the various types of water rights held by the
Tribe and the upstream water users. The State of Nevada and the Tribe
will administer and enforce these rights.
It is important to resolve the water rights dispute because it will
allow farmers and ranchers to determine how much surface water they can
use for crops and grazing. They will know how much stored water they
have and can use for irrigation and domestic use under drought
conditions. The gauges, dam and irrigation canals will be rehabilitated
or replaced to improve irrigation and increase irrigable acreage in one
of Nevada's important agricultural areas.
Second, the bill will settle the Tribes' long-standing claims
against the United States. As a result of the Bureau of Reclamation's
Owyhee Irrigation Project in the 1930s and the Bureau of Indian
Affairs' Duck Valley Irrigation Project during the same time, the
Tribe's salmon and steelhead trout runs and fish stock were destroyed.
The Tribe relied on these runs for food, their local economy, and
cultural uses.
Further, because the United States failed to defend the Tribe's
water rights when some of Nevada's early settlers arrived along the
Owyhee River, the Tribe lost water rights to support their fishing
economy, ranches, and farms.
All of the Tribe's claims against the United States in the Owyhee
River litigation will be settled by this legislation. The bill would
authorize a $60 million settlement so the Tribe could develop their
water rights.
The Tribe calculates the harm caused by the Federal Government at a
much higher level than the bill's $60 million figure that Senator
Ensign and I propose. The Department of Interior however, recently re-
evaluated the Federal liability for these tribal claims. While the
Department proposed a $40 million figure during negotiations, the
Department most recently and without explanation, valued the claims at
less than $10 million. Both proposals are significantly less than the
Senate-proposed $60 million figure. Senator Ensign and I disagree with
the Department's most recent assessment and stand by our original
proposal of $60 million.
While the United States can never fully compensate the Tribes for
their loss I appreciate the Tribes' willingness to accept the proposed
settlement figure. Just as the Tribes have compromised, I hope that the
Department of Interior and this Administration will work with Senator
Ensign and I to address their concerns with the bill and gain their
support. It is time to end to this painful part of our sovereign-to-
sovereign relationship.
Mr. Chairman, I appreciate this Committee's timely consideration of
this bill.
Without Congressional action, the Tribe, the State and the affected
individuals would have to resume costly litigation. The Tribe, farmers
and ranchers would not be able to manage their businesses efficiently
without knowing their surface and storage water rights. The Wild Horse
Reservoir, frequented by outdoor enthusiasts and fishermen, would not
be guaranteed sufficient water for their use and enjoyment. And the
Tribe would not be able to address their housing and economic
development needs without a settlement that provides funds for water
and irrigation infrastructure development.
This bill brings certainty to those individuals and communities
with water rights and finality to the parties of a nearly 20-year
adjudication. Senator Ensign and I are proud to support the efforts of
our constituents in concluding the Owyhee River adjudication.
Thank you for the opportunity to join you again today. I look
forward to working with the Members of this Committee to facilitate the
bill's approval and passage in the U.S. Senate.
The Chairman. Senator Reid, thank you very much.
I had mentioned that the Department of the Interior has
some concerns. As you mentioned, that is not particularly
unusual. The Department of the Interior seems to always have
some concerns. But let me just say to you and to those who have
been involved in negotiating a settlement here, I think it is
encouraging that the parties can get together and try to find
common ground, which has been the case. I commend you and
Senator Ensign for bringing this legislation to the Senate.
So let me thank you for your testimony today, and we will
allow you to get back to your busy schedule. Senator Reid,
thank you for being here.
Next, we will hear from Patrick Ragsdale, Director of the
BIA at the Department of the Interior. Mr. Ragsdale, thank you
for being here.
Kyle Prior, Chairman of the Shoshone-Paiute Tribes, Duck
Valley Reservation in Nevada; and Allen Biaggi, Director of the
Department of Conservation and Natural Resources in the State
of Nevada, Carson City, NV.
We thank all three of you for joining us today to provide
testimony to this Committee. Mr. Ragsdale, you heard my comment
to Senator Reid. We invite the Department of the Interior here
because you and the BIA obviously have interests in all of
these issues. It is the case that the Department of the
Interior seems to have a lot of concerns, but this Committee is
always anxious to hear them, and we appreciate your being here.
Why don't you proceed?
The entire statement that is offered by all three of you
will be made a part of the permanent record. Let me also say
that the Ranking Member, Senator Thomas, is not able to be with
us this morning, at least in the early part of this hearing. He
has another hearing, but he joins me in welcoming all three of
you.
Mr. Ragsdale, you may proceed.
STATEMENT OF W. PATRICK RAGSDALE, DIRECTOR, BUREAU OF INDIAN
AFFAIRS, DEPARTMENT OF THE INTERIOR
Mr. Ragsdale. Thank you, Mr. Chairman. It is good to be
here again, and thank you for including my full statement in
the record. I will summarize my statement and try to be brief
for the Committee's benefit.
The Department of the Interior supports negotiated
settlements of water rights between and among Indian tribes,
States, and local parties, which include the Federal Government
in its role as trustee. We have preferred the process of
negotiation and settlement over the process of protracted and
costly litigation for more than two decades.
We believe that the benefits are obvious when local
stakeholders can work out collaborative solutions that provide
mutual benefits that quantify water rights which will enhance
economic development and ensure environmental quality.
In 1990, the Department of the Interior published guidance
in the form of criteria and procedures in the Federal Register
to establish the basis for negotiating settlements and foster a
process for framework for negotiation.
That being said, the Administration opposes this particular
bill, S. 462, because the bill is inconsistent with the overall
guidance published in the Federal Register. This bill would
authorize a Federal payment of $60 million without any Federal
cost share. We note the bill language in paragraph seven of
section II states that all the parties have entered into a
settlement agreement, including the United States. This is not
accurate because it has not been executed for the reasons
contained in my full statement.
There are other concerns about the provisions in the
proposed water settlement agreement that the bill embraces that
need a review to ensure finality to the settlement. These
concerns are both monetary and non-monetary.
In conclusion, we are committed to supporting the
settlement process. More importantly, we are prepared to re-
engage in the process of negotiation to work out the
provisions, including appropriate cost sharing, which may be
monetary and non-monetary in nature, that benefit the Shoshone-
Paiute Tribes, the State of Nevada, and local entities.
Finally, I want to stress that we wish to work with the
parties and this Committee, as well as the Nevada delegation,
to advance this settlement.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Ragsdale follows:]
Prepared Statement of W. Patrick Ragsdale, Director, Bureau of Indian
Affairs, Department of the Interior
Good morning Mr. Chairman and Members of the Committee. I
appreciate the opportunity to appear before this Committee today to
discuss S. 462, a bill titled the ``Shoshone-Paiute Tribes of Duck
Valley Water Rights Settlement Act.'' I want to emphasize at the outset
of this statement that the Department of the Interior's support for
negotiated settlements as an approach to resolving Indian water rights
remains strong. For over 20 years, Indian Tribes, States, local
parties, and the Federal Government have recognized that, when
possible, negotiated Indian water rights settlements are preferable to
protracted litigation over Indian water rights claims.
In addition to defining the extent of tribal water rights,
negotiations allow settlement parties to develop creative solutions to
water use problems. Rather than pitting neighbor against neighbor in a
zero-sum legal battle, Indian water rights settlement negotiations
engage local stakeholders in forward-looking discussions to seek
solutions that will stimulate economic development, enhance
environmental quality, and provide a platform for improved
relationships between Tribes and other local entities. The
Administration's commitment to cooperative conservation embraces the
belief that those who live and work on the land offer the best
perspective on issues involving the resources that they depend on for
their economic survival. This perspective informs our commitment to
resolve some of the most difficult issues surrounding water and future
economic development for tribal governments as well as those who depend
on resource-based economies.
The United States supports the settlement process, and we are
committed to attaining a final settlement of the water rights of the
Shoshone-Paiute Tribes of the Duck Valley Reservation. We oppose S. 462
as written because the settlement it proposes is inconsistent with our
policy that settlement costs reflect the value of the claims being
resolved and should also be proportionate to benefits received. This
bill as currently written would authorize a Federal payment of $60
million without any non-Federal cost share.
I would like to make an initial point about the current status of
these negotiations and the Agreement between the parties to this
proposed settlement. S. 462 states in paragraph 7 of section 2 that the
United States, the Tribes, the State of Nevada, and the upstream water
users have entered into a settlement agreement to resolve the water
rights of the Tribes. This is not accurate. Although the Administration
supports most of the water allocations set forth in the Agreement
underpinning this legislation, the United States opposes some of the
provisions contained in the Agreement and has not executed it. The
Agreement contains numerous terms that contradict policies regarding
water rights settlements that are designed to ensure finality and
protect the interests of the Tribes and all American taxpayers.
The balance of my statement today will begin with some background
on the history of the Duck Valley Reservation and the negotiations
leading up to this proposed settlement. I will then discuss some
specific concerns that the Administration has regarding S. 462.
History of Settlement Negotiations
The Duck Valley Reservation, home to the Shoshone-Paiute Tribes,
straddles the Idaho-Nevada border along the Owyhee River, a tributary
to the Snake River. The Reservation was established by Executive Order
on April 16, 1877, and expanded by Executive Orders on May 4, 1886 and
July 1, 1910. The downstream Owyhee Project, a Bureau of Reclamation
Project that irrigates more than 100,000 acres of land in eastern
Oregon and western Idaho, has blocked anadromous fish passage and ended
what was once a valuable on-reservation fishery. The Tribes' primary
source of income now is the irrigated agriculture made possible by the
Duck Valley Irrigation Project, which is owned by BIA and operated by
the Tribes under a Self-Governance compact.
The State of Idaho initiated the Snake River Basin Adjudication
(SRBA) in 1987. Soon thereafter, the State of Nevada reopened its
adjudication of the Owyhee River, a tributary to the Snake River, an
adjudication originally initiated in 1924. Both of these adjudications
involve the water rights of the Shoshone-Paiute Tribes. The United
States filed claims in Idaho's SRBA and Nevada's Owyhee River
adjudication on behalf of the Shoshone-Paiute Tribes.
At the request of the Parties, a Federal Negotiation Team was
formed in 1990. After over a decade of negotiations, and with the
participation of the Federal Team, in 2005 the Shoshone-Paiute Tribes
came to agreement with the States of Idaho and Nevada and affected
water users on the water allocation aspects of settlement agreements in
both States. The overarching settlement issue, however, remained the
appropriate Federal and State financial contributions to the proposed
settlement. The Tribes and States were disappointed with the
Administration's position that the Federal contribution to the
settlement should be $9.3 million, with a non-Federal contribution of
$5.4 million, to settle the Tribes' claims in both Idaho and Nevada.
Discussions with the State of Idaho foundered and the proposal for
Idaho or its water users to make any financial contribution was
rejected. Instead, because of looming litigation deadlines, Idaho
decided to make an offer of judgment based on the filings made by the
United States on behalf of the Tribes. Evaluating the State's offer of
judgment and determining that it provided an outcome to the litigation
that was as good as, or better than, what could reasonably be expected
if the litigation proceeded through trial, the United States accepted
the offer, which effectively concluded the Idaho portion of this
settlement by confirming certain water rights in the Tribes.
The Nevada portion remains unresolved. Although talks have taken
place between the Tribes and the Nevada State Attorney General's Office
over the contents of a proposed Agreement, the Administration has not
been included in those discussions in recent years. Numerous changes
would be required before we could recommend that the Federal Government
enter into this Agreement.
The Role of the Criteria and Procedures
When negotiating and evaluating Indian water rights settlements,
the Administration follows longstanding policy guidance on Indian water
settlements found at 55 Fed. Reg. 9223 (1990), Criteria and Procedures
for the Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims (``Criteria''). Among other
considerations for Federal participation in the negotiation of Indian
water rights settlements, the Criteria provide guidance on the
appropriate level of Federal contribution to settlements, incorporating
consideration of calculable legal exposure plus costs related to
Federal trust or programmatic responsibilities.
The Criteria call for Indian water rights settlements to contain
non-Federal cost-sharing proportionate to the benefits received by the
non-Federal parties, and specify that the total cost of a settlement to
all parties should not exceed the value of the existing claims as
calculated by the Federal Government. These principles are set out in
the Criteria so that all non-Federal parties have a basic framework for
understanding the Executive Branch's position.
Equally important, the Criteria address a number of other issues,
such as the need to structure settlements to promote economic
efficiency on reservations and tribal self-sufficiency, and the goal of
seeking long-term harmony and cooperation among all interested parties.
The Criteria also set forth consultation procedures within the
Executive Branch to ensure that all interested Federal agencies have an
opportunity to collaborate throughout the settlement process.
Monetary Concerns Regarding S. 462
With this backdrop, we now turn to the fiscal elements of the bill
before this Committee. The total cost of $60 million significantly
exceeds the Administration's position on an appropriate Federal
contribution, and the bill does not specify any non-Federal cost-share.
As we have said many times before this Committee, the Administration's
position as set forth in the Criteria is that the fiscal burden
associated with an Indian water rights settlement should not be borne
solely by the United States. Other parties receiving benefits under a
settlement should also contribute based on the value of the benefits
received. While the Administration has not had the opportunity to
thoroughly revisit the appropriate monetary contributions to a Duck
Valley settlement since the Idaho water rights were finally resolved in
late 2006, we stand ready to work with the Tribes, the Nevada
delegation, and this Committee to structure appropriate cost-sharing
provisions consistent with the Criteria.
Unfortunately, the non-Federal parties to the proposed Duck Valley
settlement have a very different assessment from the Administration of
both the benefits from settlement to the non-Federal parties and the
litigation risk from claims that the Tribes might assert against the
Federal Government. Based on the Federal assessment of the relative
benefits and liabilities, non-Federal parties should be contributing
substantially to the cost of the settlement. This view is based on
significant litigation cost savings by the State of Nevada as well as
the benefit to non-Indian water users, who stand to secure water rights
through settlement that would be subject to limitation were the Tribal
claims to be litigated. The States and non-Indians water users would
also benefit from the certainty that comes with settlement of
outstanding water rights claims. The State cost share would not
necessarily be entirely in the form of cash; one option that could be
explored would be non-monetary contributions such as in-kind services
provided by the State natural resource agencies to support the Tribes'
water or other resource development. As the Agreement currently stands,
however, the level of cost share by the non-Federal parties is
significantly lower than the Administration can support.
Moreover, S. 462 would require the Federal Government to contribute
a total of $60 million into two different trust funds for the benefit
ofthe Tribes. One of the funds, with a proposed Federal contribution of
$45 million, would be established to enable the Tribes to cover the
costs of water resource planning and development. The other fund, with
a proposed Federal contribution of $15 million, would be established to
cover operation and maintenance costs for the Duck Valley Irrigation
Project and other water-related projects funded under this Act. The
Criteria do not generally allow Federal funding of operation and
maintenance costs. And, as I have discussed above, the total cost of
the settlement as proposed in this bill is higher than the
Administration's assessment of an appropriate Federal contribution.
Non-Monetary Concerns Regarding S. 462
In addition to opposing the proposed Federal funding level, the
Administration has identified a number of legal and technical flaws in
both S. 462 as introduced and the underlying Agreement. Without
attempting to give a line-by-line analysis in this context, I note that
the Department of Justice does not believe that the bill's waiver
provisions are correctly drafted. Additionally, the bill presents
conflicting requirements regarding the release of Federal funds that
could prevent appropriated funds from ever being released to the Tribes
if the bill is passed as introduced. We would like to work with the
Committee and the Nevada delegation to revise the bill to address these
and other issues that could prevent the bill from achieving its
intended purpose of achieving a final settlement of the water rights
claims of the Shoshone-Paiute Tribes of the Duck Valley Reservation.
Conclusion
The Administration remains committed to supporting the settlement
process and ensuring that such settlements fulfill the Government's
responsibilities to Indian Tribes while also protecting the interests
of the taxpaying public. The Administration hopes that the parties can
come to an Agreement including an appropriate cost share, so that
together we can achieve a settlement that will allow the Shoshone-
Paiute Tribes to put their water to use in an economically beneficial
manner. Water resource development would further the U.S. goal of
Tribal self-sufficiency and sovereignty.
Mr. Chairman, this completes my statement. I am happy to answer any
questions the Committee may have.
The Chairman. Mr. Ragsdale, thank you very much.
Next, we will hear from Mr. Prior. Mr. Prior, as I
indicated, your statement will be made a part of the record as
well. You are here as Chairman of the Shoshone-Paiute Tribes,
Duck Valley Reservation. Mr. Prior, why don't you proceed?
STATEMENT OF KYLE PRIOR, CHAIRMAN, SHOSHONE-PAIUTE TRIBES, DUCK
VALLEY RESERVATION
Mr. Prior. Good morning, Mr. Chairman. I am honored to be
here to express the support of the Shoshone-Paiute people for
the water settlement contained in S. 462, a measure that will
bring us closer to the creation of a sustainable homeland for
our people.
In short, this bill has critical importance to the future
of the Shoshone-Paiute Tribes. First, the bill will approve our
water rights settlement in Nevada. It has been 130 years since
our reservation was first established, and the settlement will
finally establish the Federal reserve water rights of the
tribes.
Because of our economy, our very livelihood depends on
agriculture and stock raising. This water rights settlement
literally represents the key to our future as a tribe.
Second, the bill resolves our longstanding water-related
claims against the Federal Government. These claims involve the
fundamental failure of the United States to protect our water
rights and our water and fishery resources. Our settlement
agreement with Nevada and private water users provides us with
over 100,000 acre feet of surface water from the Owyhee River,
storage water from the Wild Horse Reservoir, all water from
springs and creeks on the reservation, and all present uses of
groundwater plus perennial yield of the aquifer.
At the same time, the agreement protects the use of water
by ranchers south of the reservation. It allows them to
continue the use of water without interruption in a manner in
which they have historically irrigated. The only restriction is
the number of acres that can be irrigated. The parties
negotiated this acreage number after considerable technical
work and the field work. Therefore, the Nevada settlement
provides the water needed by the tribes, and also provides the
water needed by our neighbors.
When our reservation was established by Executive Order in
1877, we already had a tradition of agriculture. We have a long
history and culture of dependence on salmon fishing. Our Duck
Valley Reservation represented the best of all worlds:
Sufficient land for a strong agricultural base; a vital
fishery; and abundant wildlife and water flows.
It has been noted that our reservation began as a virtual
paradise, but because of the detrimental actions and inactions
of the Federal Government to fully protect our water rights, we
have been unable to realize its promises for our people. We
have detailed our claims against the Federal Government in our
written testimony.
No. 1, is the failure of the Federal Government to
establish and protect our water rights in the face of rapidly
increasing non-Indian settlement in the area surrounding the
reservation, including extensive non-Indian water development
that directly affected the availability of water for the
tribes. On at least two occasions in the 1930s, requests were
made to the Department of Justice to take steps to protect the
tribes' water rights, and a detailed complaint was actually
prepared by the Justice Department in at least one instance,
but the case was never filed.
No. 2, is the failure of the Federal Government to provide
the necessary storage and infrastructure for irrigated
agriculture. The need for storage was identified as early as
the 1890s, but it took over 40 years before Wild Horse
Reservoir was constructed in 1931. Over the years, the basic
infrastructure for the irrigation project has fallen into
disrepair and the project is seriously dilapidated due to
inadequate funding and neglect. In addition, only a portion of
the anticipated acres have been actually put into production.
No. 3, is the destruction of our salmon fishery by the
United States when it constructed the Bureau of Reclamation
Owyhee Project. The Owyhee Dam served as an insurmountable
barrier to salmon to reach our reservation, which was once an
abundant resource for subsistence and commerce, and it was lost
forever.
No. 4, is that within the Department of the Interior, the
interests of the Bureau of Reclamation Owyhee Project were
consistently favored over the interests of the tribes.
Development on the reservation was not only significantly
delayed as a result, but the amount of water made available to
the tribes was impacted. For example, Wild Horse Reservoir was
constructed 15 miles south of the reservation, rather than on
the reservation. Only 40 percent of available water could be
captured and made available to the tribe as a result. This was
done so that more water could flow down to non-Indian
irrigators.
In a nutshell, at every turn, our water rights have been
continually sacrificed for the benefit of non-Indian water
users.
In 1989, the State of Nevada formally began a water rights
adjudication in the Owyhee River Basin. Our water rights were
also at issue as part of the Snake River Basin adjudication in
Idaho. Since that time, we have spent well over 1 decade
negotiating a settlement. The negotiations were conducted under
the department of the Interior's policy and guidelines for
Indian water settlements, and a Federal negotiating team was an
active party.
Throughout the process, the tribes and all of the parties,
including the United States, anticipated a significant Federal
contribution by the Federal Government. At the end of our
negotiations, the Federal negotiating team recommended to the
Secretary a contribution of $44.9 million. However, at the
eleventh hour, the Federal Government abandoned this
recommendation and its own policy that it had utilized for at
least two decades, and unilaterally reduced its contribution to
a mere fraction of the Federal team's recommendation.
Further, the Federal Government is now taking the position
that there must be a substantial State contribution to
settlement. This makes little sense because our issue is almost
entirely Federal. The tribes' water rights in Idaho have since
been resolved through a consent decree that was entered in
December 2006. This consent decree quantifies the tribes' water
rights in Idaho, but does not resolve any of the tribes'
damages claims against the Federal Government, nor does the
consent decree provide any means for the tribe to put that
water to use.
We now look to Congress to ensure that the tribes can
benefit from the Nevada agreement and our decree rights in
Idaho. Passage of this bill will bring closure to a sad chapter
in our history, and will begin to allow our people and the
future generations of the tribes to have a viable homeland.
Thank you, Mr. Chairman.
[The prepared statement of Mr. Prior follows:]
Prepared Statement of Kyle Prior, Chairman, Shoshone-Paiute Tribes,
Duck Valley Reservation
Mr. Chairman and Members of the Committee on Indian Affairs, thank
you for inviting me to present testimony on this very important issue,
the settlement of our water rights claims.
I am honored to be here to represent the Shoshone-Paiute people and
to witness the culmination of many decades of hard work and persistence
by the tribal leaders who came before me to fulfill the vision of our
forefathers: the creation of a sustainable homeland for our people.
Duck Valley: A Sustainable Homeland
The Duck Valley Reservation is the homeland of the Shoshone-Paiute
Tribes. It was established for the Tribes' use and benefit by Executive
Order in 1877 pursuant to the 1863 Treaty of Ruby Valley. Lands were
added by Executive Orders in 1886 and 1910, so that today, the
Reservation encompasses 290,000 acres located within the States of
Nevada and Idaho. The Duck Valley Reservation is unallotted and the
entire Reservation is held in trust for the Tribes.
In 1877, when our forefathers first agreed to be settled on the
Duck Valley Reservation (the ``Reservation''), they saw a homeland that
had plentiful wildlife and game, productive agricultural and range
lands, and an excellent fishery abundant with salmon and steelhead.
Located in Northeast Nevada and Southwest Idaho, our reservation has
three primary water sources: (i) the East Fork of the Owyhee River,
which flows south to north through the Reservation, (ii) Blue Creek,
which is a tributary to the Owyhee River in the Idaho portion of the
Reservation, and (iii) Mary's Creek, which is part of the Bruneau River
Basin in Idaho. These water sources were intended to supply water for
tribal uses, including irrigated agriculture, stock raising, fisheries,
wildlife and domestic use. Those intentions have never been fully
realized.
Our people have a long history of being agriculturists. Even before
the Duck Valley Reservation was established, many of our people
successfully engaged in agriculture beginning in 1875 at Carlin Farms,
a nearby area reserved by Executive Order for this purpose. Despite
their farming success, our people were forced to abandon their
improvements when the Executive Order reserving Carlin Farms was
withdrawn due to pressure from white settlers in the area. \1\
---------------------------------------------------------------------------
\1\ JRP Historical Consulting, Duck Valley Indian Reservation:
Creation, Purposes and Water Development (hereafter JRP Report) July 1,
2005, at 11-17-18.
---------------------------------------------------------------------------
When the present Duck Valley Reservation was established in 1877
and settled by our People, agriculture remained a focus. However, by
1890, it became apparent to the Tribes and the Federal Government that
flows from the Owyhee River, Blue Creek and Mary's Creek were seasonal,
and facilities to store water would be necessary to realize the full
potential for irrigated agriculture on our lands. For the next 40
years, our tribal leaders and officials from the BIA tried
unsuccessfully to obtain a water storage facility to support irrigation
on our reservation.
Our struggles during this time were complicated by several factors
including rapidly increasing non-Indian settlement in the areas
surrounding our reservation; over-appropriation of Blue Creek upstream
of the Reservation in Idaho; ever increasing use of water by non-
Indians south of the Reservation in Nevada; and Bureau of Reclamation
(BOR) opposition to the construction of a water storage facility on the
Reservation. This BOR opposition was based on the concern that
construction of the Wild Horse Dam and Reservoir would compromise the
future of the Owyhee Project, which served downstream non-Indian water
users in Oregon and Idaho.
Throughout the struggle to obtain sufficient storage water to
support agriculture on the Reservation, the need to take steps to
establish and protect the Tribes' water rights was identified over and
over. Yet, no steps were taken by the Federal Government to protect
this vital resource. Even though specific requests were made to the
Justice Department on at least two occasions, and even though a
detailed complaint was prepared by the Justice Department in connection
with the Tribes' rights in the Owyhee River, the Federal Government
never followed through to establish and protect the Tribes' water
rights. In the meantime, ever increasing use of water both to the north
and to the south of the Reservation continued.
Duck Valley Irrigation Project/Wild Horse Reservoir
Ultimately, our leaders were successful in establishing a formal
Indian irrigation project in 1938, including critical storage for the
project. Funding was first authorized by Congress for Wild Horse Dam
and Reservoir in 1931, and construction was completed by 1938 to
finally provide stored water to serve our reservation. Even with the
construction of the Wild Horse Dam, however, the water resources of our
Tribes were sacrificed for the benefit of non-Indian water users. The
Wild Horse Dam and Reservoir were located nearly 15 miles south of the
Reservation in a location that permitted 60 percent of the drainage
flows from the Owyhee River to bypass the Wild Horse Dam and flow
downstream to serve the Owyhee Project and meet off-reservation needs.
The resulting loss of water has limited the number of acres of
agriculture the Tribes can cultivate to 12,800 acres rather than up to
24,000-30,000 acres if the Wild Horse Dam was properly placed. \2\
---------------------------------------------------------------------------
\2\ The Bureau of Reclamation actively opposed the authorization
and construction of the Duck Valley Reservoir because of concerns it
would interfere with its own BOR Owyhee Project water supply, causing
significant delays in construction of storage for the Duck Valley
Project. JRP Report at VII-29-41. The BOR also actively opposed an
adjudication of Duck Valley water rights that was proposed in the
1930s.
---------------------------------------------------------------------------
The Bureau of Reclamation's Owyhee Project downstream in Oregon and
Idaho, was planned, authorized and constructed during the same time
period, and BOR treated the Tribes' Project as competition for Owyhee
water. Rather than protecting the prior and paramount rights of the
Tribes, however, the Federal Government acted to protect flows from the
Owyhee River for the benefit of non-Indian water users. Just as
devastating to our people was the destruction of Tribal fisheries
caused by the Owyhee Project. The Project Dam was constructed without
fish ladders or other devices to protect anadromous fish runs of salmon
and steelhead to the Reservation. What was once an abundant resource to
our people for subsistence and commerce was completely destroyed and
forever lost as a result of the construction of the BOR Owyhee Project
Dam. \3\
---------------------------------------------------------------------------
\3\ It has been estimated that the average annual consumption of
salmon and steelhead for each tribal member was 143 pounds. This amount
does not take into consideration the Tribes' use of salmon and
steelhead for trade and commerce.
---------------------------------------------------------------------------
Federal Enforcement Efforts Abandoned
In an effort to firm up a water supply for the Reservation, the
Justice Department prepared a detailed case in the 1930s to adjudicate
the Tribes' water rights in the Owyhee River based on the Winters
Doctrine. The filing of such an adjudication was recommended in a
number of comprehensive irrigation reports prepared for the BIA,
including a report completed by Charles Engle, an irrigation expert
appointed by the Secretary of the Interior, who advised that the
Tribes' water rights needed immediate protection. \4\ Although a
comprehensive bill of complaint was developed by the Justice
Department, the case was never filed and was actively opposed by BOR.
\5\ Ultimately, it took the recommendations of a special attorney
appointed by the Secretary, Louis Crampton, who undertook yet another
exhaustive report on irrigation at Duck Valley, to bring about the
construction of Wild Horse Dam in the face of BOR opposition. Yet the
additional step of establishing and protecting the Tribes' water rights
was never taken. JRP Report at VII-41-58.
---------------------------------------------------------------------------
\4\ JRP Report at VII-23-27.
\5\ JRP Report at VII-27-40, 59.
---------------------------------------------------------------------------
The Tribes' water rights in Blue Creek and Mary's Creek have
suffered a similar fate. Beginning at the turn of the century, non-
Indian water users had constructed extensive diversion facilities on
Blue Creek preventing flows from reaching the Reservation and causing
several successful tribal farms to go out of business. \6\ Once again
adjudication was recommended to no avail, even though it was recognized
at the time that: ``The longer this matter is deferred, the more
numerous and difficult will be the questions relative to water supply,
as water is being continually appropriated on all of these streams,
both above and below the Reservation.'' \7\
---------------------------------------------------------------------------
\6\ JRP Report at VI-1-14.
\7\ JRP Report at VI-13.
---------------------------------------------------------------------------
The Federal officials responsible for protecting the Tribes' water
rights continually deferred taking action to establish Duck Valley
water rights in favor of development by non-Indians above and below the
Reservation, and in favor of the BOR Owyhee Project. At every turn, the
Tribes' water rights were continually sacrificed for the benefit of
non-Indian water users.
Duck Valley Indian Irrigation Project, A Failed Promise
The Duck Valley Indian Irrigation Project (DVIIP), which was
finally constructed in 1938 along with the Wild Horse Dam as its
storage facility to deliver water to irrigate agricultural lands on the
Reservation, was never completed, and its promise has remained
unfulfilled. As constructed, the DVIIP would only deliver water to
12,800 acres of reservation lands, not the full 24,000 acres of
irrigable reservation lands that had been identified by a number of
studies conducted by the government. Thus, the Tribes' goal of
maximizing the amount of irrigated agricultural lands has never been
fully realized.
Over the years, the Federal Government has not provided sufficient
funds to adequately maintain the DVIIP, and the fees generated by the
DVIIP are insufficient to even nominally maintain the DVIIP. Since the
1960s, the DVIIP has been required to operate on an annual budget of
$60,000, the amount of the operation and maintenance fees charged to
water users. As a result, the DVIIP has fallen into a substantial state
of disrepair. Of the 12,800 acres of DVIIP lands, 7,000 acres are in
sub-optimal production and the remaining 5,800 acres are currently
fallow because of the deteriorating facilities and poor engineering. In
addition to the reduced number of acres in production, those DVIIP
lands that remain under active irrigation suffer from lower yields and
less income than similarly situated off-reservation farms due to less
than optimal cropping patterns. \8\
---------------------------------------------------------------------------
\8\ See the attached graph depicting the comparative cropping
patterns in Idaho, Nevada, and the Shoshone-Paiute. It should be noted
that alfalfa is a higher income producing crop than hay.
---------------------------------------------------------------------------
The subsidies that were promised to the Project have never
materialized, and the level of disrepair has steadily increased. Some
of the problems plaguing the DVIIP include overgrown and silted
irrigation ditches, non-functioning gates and turnouts, and poorly
engineered and unlined irrigation ditches, resulting in a highly
inefficient delivery system and steadily declining agricultural
production. Based on our current estimates, it will cost over $10.7
million to fully rehabilitate the DVIIP to bring all 12,800 acres of
agricultural lands into production.
For the last 5 years, the Tribes have operated and maintained the
Project under a Memorandum of Agreement and now as part of our Self-
Governance Compact. Some improvement has occurred, but without
significant funds to rehabilitate and better the Project, and to cover
operation costs, progress is minimal.
Settlement Negotiations
Mr. Chairman, we have been engaged in negotiations with private
water users, the State of Idaho, the State of Nevada, and the Federal
Government to settle our water rights claims for over 15 years. It
should be noted that the parties conducted these negotiations
consistent with the Department of the Interior's policy for the
settlement of claims concerning Indian water resources. Throughout this
process, the Shoshone-Paiute Tribes and all of the other parties have
anticipated a significant Federal contribution to our settlement. In
fact, the Federal negotiating team reported to the Tribes that it would
recommend a Federal contribution of $44.9 million to settle the Tribes
water rights claims. At the point where we had reached agreements with
all parties to settle our claims, we learned that the Federal
Government, at the direction of OMB, had abandoned their prior offer
and reduced the Federal contribution to $6 million. Further, the
Federal Government is now taking the position that there must be a
substantial state contribution to settlement, even though, at Duck
Valley, the issues and responsibilities are almost entirely Federal.
This abrupt shift in position has caused all of the parties in our
settlement to re-examine their respective positions and consider their
litigation alternatives.
In fact, because of the delay in reaching agreement on a Federal
contribution, the State of Idaho abandoned the Idaho portion of the
settlement and made an offer of judgment to resolve the Tribes' water
rights claims through a consent decree. The consent decree was entered
by the Idaho court on December 12, 2006, and decreed the Tribes' water
rights in Idaho. Under the decree the Tribes' have approximately 19,516
acre-feet in the Owyhee River and its tributaries, including Blue
Creek, based on the water necessary for domestic/commercial/municipal/
commercial purposes, irrigation, reservoir storage, stock water and
instream flow for stock and wildlife. The Tribes' claims for lake level
maintenance, wildlife habitat and instream flows for fisheries were
disallowed. The consent decree in Idaho did not resolve any of our
water related claims against the Federal Government, however; nor did
it provide the means to put any of the Tribes' water to use. Thus the
need for the present Federal settlement remains undiminished.
Mr. Chairman it is particularly disheartening to our people that
after 15 long years of negotiations with representatives of the Federal
Government, including the Bureau of Reclamation, the Bureau of Indian
Affairs and the Department of Justice, the results of those lengthy and
difficult negotiations, including the original recommendation of a
Federal contribution of $44.9 million, can be delayed and even wiped
out by certain Federal officials at the 11th hour of the process. These
Federal officials have never engaged in or participated in negotiations
with our Tribe and have never set foot on our Reservation to see the
challenges we must contend with each day.
Indeed, as a result of the intransigence of the Federal Government
in moving forward with a comprehensive settlement in a timely fashion,
the Tribes had little choice but to accept the offer of judgment made
by the State of Idaho involving the Tribes' water rights in Idaho. Time
literally ran out in the face of the litigation schedule set by the
Idaho courts, and in the face of the unwillingness of the Federal
Government to reconsider its proposed Federal contribution of $6
million.
On a more positive note, our settlement agreement with the State of
Nevada and private water users in Nevada provides the Tribes with
111,476 acre-feet of surface water from the Owyhee River, storage water
in the Wild Horse Reservoir, all water flows originating from springs
and creeks on the Reservation, and 2,606 acre-feet of ground water,
plus perennial yield. At the same time, the agreement protects the use
of water by irrigators upstream (south) of the Reservation. The
agreement is premised on allowing the upstream irrigators to continue
their flood irrigation in the same manner they historically have
irrigated, without interference, provided that the overall acreage
agreed upon by the parties is not exceeded. The agreement also provides
a small amount of storage to the upstream water users.
The Nevada agreement, together with the Tribes' decreed rights in
Idaho, fulfills a critical aspect of our overall goal of creating a
fully sustainable homeland for our people. Yet, there is one major
element that remains unresolved. We will not be able to realize a fully
sustainable homeland for our people without a significant Federal
contribution to our settlement. A significant Federal contribution is
essential to enable the Tribes to fully utilize their water through the
rehabilitation and construction of water delivery structures necessary
to transport water from the Wild Horse Dam and Reservoir and from Blue
Creek, to restore and protect Reservation fisheries and critical
wildlife habitat throughout the Reservation, and for the construction
of other essential water related projects.
Conclusion
The Tribes cannot help but view the government's recent change in
position as eerily similar to its past failures to secure water
necessary to make our reservation a permanent homeland. It bears
repeating that the United States is directly responsible for failing to
protect the Tribes' water rights in the face of non-Indian development,
failing to properly operate and maintain the Duck Valley Indian
Irrigation Project, failing to properly site reservoirs and storage
facilities in order to avoid waste of water resources, and failing to
protect the Tribes' salmon fishery.
Mr. Chairman, rather than continue to focus on the past, the Tribes
are committed to securing a stable and productive future for our
people. In this regard, we believe that a Federal contribution of
$60,000,000 would reasonably support the return of a viable Reservation
for our people. This amount is significantly less than the $135,090,000
that is supported by our damages claims against the Federal Government,
which satisfies a key component of the Department of the Interior's
water rights settlement policy. Nevertheless, this amount would enable
the Shoshone-Paiute Tribes to:
Rehabilitate the Duck Valley Indian Irrigation Project
Develop a portion of Owyhee PIA lands
Provide a delivery system from Blue Creek
Develop a Stream Bank Maintenance Program
Make Reservoir Repairs
Develop a Wildlife Habitat Project
Provide for a Municipal Water System
Capitalize a DVIIP Operation, Maintenance and Repair Trust
Fund
Provide an economic development fund
Provide for Land Acquisition
Develop a Water Management Plan and Code
Unfortunately, as we sit here today, the offer on the table from
our Federal trustee is not the original recommendation of $44.9 million
but less than 15 percent of that amount. We have participated in the
Federal Government's negotiation process. We have followed the Federal
Water Settlement Guidelines and we now have a Nevada settlement
agreement on the table for approval.
It is respectfully submitted that it is time for the United States
of America to fulfill the promises of a generation past by providing a
Federal contribution of $60,000,000 to settle the water rights claims
of the Shoshone-Paiute people and to fulfill the vision of our
forefathers: the creation of a sustainable homeland for the Shoshone-
Paiute people. S. 462 is a just and fair bill that would help us to
realize our vision upon passage.
Thank you.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
The Chairman. Chairman Prior, thank you very much. You are
Chairman of the Shoshone-Paiute Tribes. Is that correct?
Mr. Prior. That is correct.
The Chairman. And how long have you been Chairman?
Mr. Prior. Since October, sir.
The Chairman. All right.
Our final witness is Allen Biaggi. Allen Biaggi is here
today representing the State of Nevada. Mr. Biaggi is Director
of the Department of Conservation and Natural Resources in the
State of Nevada.
Mr. Biaggi, were you and the State involved in these
negotiations?
Mr. Biaggi. Yes, sir; we were.
The Chairman. Why don't you proceed? Your entire statement
will be made part of the permanent record. You may summarize.
STATEMENT OF ALLEN BIAGGI, DIRECTOR, DEPARTMENT OF CONSERVATION
AND NATURAL RESOURCES, STATE OF
NEVADA
Mr. Biaggi. Good morning, Mr. Chairman. Thank you for
allowing me to be here today in strong support of S. 462, on
behalf of the State of Nevada.
For background, the Owyhee River system is located in
extreme Northeastern Nevada on the Idaho border. The system is
unique to the State in that it is only one of a handful of
rivers and streams that do not have their terminus in the Great
Basin.
Our major river systems, such as the Carson, Truckee,
Walker, and Humboldt all drain internally in the State into
internal lakes and playas. These waters never reach the ocean.
The Owyhee, on the other hand, is a tributary to the Snake
River and to the Columbia system with its terminus in the
Pacific Ocean. The Owyhee is also unique in that it is the only
major waterway shared by Nevada and Idaho and, of course, the
Shoshone-Paiute Tribes of the Duck Valley Indian Reservation.
As you all know, Nevada is the most arid State in the
Union. As such, water is a precious and highly valued
commodity. The United States, on behalf of the tribes, has
filed various claims for reserved water rights. Water users on
the East Fork of the Owyhee River have also filed claims for
vested rights or have obtained permits for water rights under
Nevada law. Many of these claims are competing, resulting in
disputes and the potential for protracted litigation.
About 1 decade ago, negotiations began between the
Shoshone-Paiute Tribes, the United States, the State of Nevada,
and the upstream water users, with the goal of resolving the
water rights claims in an amicable manner in the absence of an
administrative or court process. Discussions became more
focused and results-oriented about 5 years ago and the Owyhee
River Agreement is the product of those negotiations. It should
be noted that in the grand scheme of water rights negotiations,
the resolution of a system as complex as the Owyhee, with its
varied interests and multiple parties, in only a decade is
almost unprecedented.
In speaking for the State of Nevada, we are proud to be a
part of this agreement and we applaud all the parties for their
hard work and diligence. We also have agreed to certain
financial and operational commitments which underscores our
support of the settlement. Specifically, the State of Nevada
will provide the services of a Water Commissioner to oversee
and enforce the agreement and we will fund and maintain two
critically important stream flow gauges on the East Fork of the
Owyhee River.
With regard to the upstream water users, that is those
farmers and ranchers who have long had a presence on the East
Fork of the Owyhee, I would never be so presumptuous as to
speak for them. I know a representative for them could not be
here today. I do know, however, that their position on the
agreement can be summarized by noting that during the
negotiation process there was a considerable amount of give and
take on both sides, and that neither side is entirely
satisfied.
The upstream water users believe the agreement is the best
possible under the conditions and the circumstances. The
upstream water users and the members of the tribes have always
been able to resolve water matters in a manner which considers
both parties, and this agreement further demonstrates that
spirit.
In closing, I would like to thank Senator Reid for
introducing S. 462 to ratify this agreement, and to his very
capable and competent staff. S. 462 is in the best interest of
the tribes, the upstream water users, and most importantly, the
precious water resources of the West.
I would be pleased to answer any questions you may have.
[The prepared statement of Mr. Biaggi follows:]
Prepared Statement of Allen Biaggi, Director, Department of
Conservation and Natural Resources, State of Nevada
Good morning Chairman Dorgan, and Indian Affairs Committee members,
my name is Allen Biaggi and I am the Director of the Nevada Department
of Conservation and Natural Resources. This morning I am speaking in
support of S. 462 on behalf ofthe State of Nevada.
For background, the Owyhee River system is located in extreme
northeastern Nevada on the Idaho border. The system is unique to the
state in that it is one of only a handful of rivers and streams that do
not have their terminus in the Great Basin. Our major river systems
such as the Carson, Truckee, Walker and Humboldt all drain internally
in the State into terminal lakes or playas. These waters never reach
the ocean. The Owyhee, on the other hand, is tributary to the Snake
River and the Columbia system with its terminus in the Pacific Ocean.
The Owyhee is also unique in that it is the only major waterway shared
by Nevada and Idaho and of course the Shoshone-Paiute tribes of the
Duck Valley Indian Reservation.
Nevada is the most arid state in the union. As such water is a
precious and highly valued commodity. The United States, on behalf of
the Tribe, has filed various claims for reserved water rights. Water
users on the East Fork of the Owyhee River have also filed claims for
vested rights or have obtained permits for water rights under Nevada
law. Many of these claims are competing, resulting in disputes and the
potential for protracted litigation.
About a decade ago, negotiations began between the Shoshone-Paiute
Tribes, the United States, the State of Nevada and the upstream water
users with the goal of resolving the water rights claims in an amicable
manner in the absence of an administrative or court process. The
discussion became more focused and results oriented about 5 years ago
and the Owyhee River Agreement is the product of those negotiations. It
should be noted that in the grand scheme of water rights negotiations,
a resolution in a system as complex as the Owyhee with its varied
interests of multiple parties in only a decade is almost unprecedented.
In speaking for the State of Nevada, we are proud to be part of
this agreement and we applaud all of the parties for their hard work
and diligence. We also have agreed to certain financial and operational
commitments which underscore our support of the settlement.
Specifically, the State of Nevada will provide the services of a Water
Commissioner to oversee and enforce the agreement and we will fund and
maintain two critically important stream flow gages on the East Fork of
the Owyhee River.
With regard to the upstream water users, those farmers and ranchers
who have long had a presence on the East Fork of the Owyhee, I would
never be so presumptuous as to speak for them. I know a representative
for them could not be here today. I believe however that their position
on the agreement can be summarized by noting that during the
negotiation process there was a considerable amount of ``give and
take'' on both sides and that neither side is entirely satisfied. The
upstream water users believe the agreement is the best possible under
the conditions and circumstances. The upstream water users and the
members of the Tribes have always been able to resolve water matters in
a manner which considers the needs of both parties and this agreement
is a further demonstration of that spirit.
In closing, I would like to thank Senator Reid for introducing S.
462 to ratify this agreement and to his very capable and competent
staff. S. 462 is in the best interest of the Tribes, the upstream water
users and, most importantly, the precious water resources of the west.
I would be pleased to answer any questions you may have.
______
Owyhee River Water Agreement Overview
The Duck Valley Indian Reservation was established by Congress in
1877 and further defined by Executive Orders in 1886 and 1910. On
behalf of the Duck Valley Tribe, the United States has filed various
claims for reserved water rights. Water users on the Owyhee River have
also filed claims for vested rights or have obtained permits for water
rights under Nevada law. Many of these claims are competing, resulting
in disputes and litigation.
It is the desire of all of the parties to settle the water rights
claims in an amicable manner in the absence of an administrative or
court process. The Owyhee Agreement serves to settle these disputed
claims and fairly allocate the surface and ground water resources
within the basin.
Parties to the agreement:
Duck Valley Indian Reservation
Individual water users on the East Fork Owyhee River
The United States on behalf of the Tribe
The State of Nevada
Details of the Agreement
Negotiation of the agreement has been underway for about 4 years.
The State of Nevada, through contract services, had Pete Morros, former
State Engineer and DCNR Director head the effort. Other individuals
participating in the process were Jeannie Whiteing, Esq. of Whiteing
and Smith, Boulder Colorado representing the United States and Joe Ely,
representing the Tribe. David Stanton, Esq. of Elko represented the
upstream water users.
Under the agreement, the tribe shall have right to 111,476 acre
feet of surface water annually with a priority date of April 16, 1877.
The Tribe shall also have rights to springs and creeks located on
tribal lands. The Tribe may use this water for any purpose that may be
authorized by its governing body including use of that water off the
reservation with the provision that such use be compliant with Tribal
and State law.
Additionally, the Tribe may pump up to 2,606 acre-feet of ground
water based on water currently or historically used on the Reservation.
Ground water must be appropriated in accordance with Tribal Water Law
(which must be substantially similar to Nevada Water Law) but the
amount cannot exceed the perennial yield within the reservation
boundaries.
Water amounts for use by the upstream water users is defined in the
agreement by maps of currently irrigated areas and specific duties for
various uses and crops. The agreement specifies a process for
determining water availability in a given hydrologic year, storage in
Wildhorse Reservoir and a process of allocation in times of shortage.
The agreement has provisions for dispute resolution and defines the
State Court as the court of competent jurisdiction.
Reserve rights for tribes is a major issue in the West. It is
clearly stated that the agreement is not precedent setting for these
rights or for future agreements in Nevada.
Through the agreement the State shall provide the services of a
water commissioner to oversee and enforce this agreement. The State
also agrees to fund and maintain two stream flow gages on the Owyhee
River.
The Chairman. Mr. Biaggi, thank you very much.
Mr. Ragsdale, let me start with you first. The BIA in the
Department of the Interior were originally a part of
negotiations, I believe, for 15 years to try to resolve this
dispute. Let me ask historically, do you believe that the
Federal Government mishandled, aggrieved, and injured the
Shoshone-Paiute Tribes with respect to the way it handled water
rights early on?
That tribe, as I understand it from Mr. Prior's testimony,
was placed on the Duck Valley Reservation in the late 1800s,
1877. At that point, the chairman of the tribe, Mr. Prior, has
described the circumstances under which the tribe was
shortchanged. They perhaps would feel cheated because water
rights they expected to have were not available to be used.
So the question is: Does the Federal Government have some
responsibility and liability to this tribe in the way that it
mishandled water rights, in your judgment?
Mr. Ragsdale. Well, I would agree with much of what the
Chairman has testified to here today. I would agree that the
Federal Government has a responsibility, in its role as
trustee, to help develop water rights and protect Indian water
rights. The Chairman's story about his tribe is not unlike a
lot of Indian tribes that are negotiating their water rights,
or that have negotiated their water rights. So I would not
disagree.
The Chairman. So then did the Government adequately protect
the water rights of this Indian tribe, in your judgment?
Mr. Ragsdale. The situation is what it is.
The Chairman. I understand that.
Mr. Ragsdale. The irrigation project was never fully
completed.
The Chairman. I understand that. My question was not that.
My question was, did the Federal Government meet its
responsibility to adequately protect the water rights of this
Indian tribe?
Mr. Ragsdale. With due respect, Mr. Chairman, I don't think
that I should be answering that question. I am not a lawyer and
I am not representing the Department of the Interior as its
lawyer.
The Chairman. But the Department was involved for 15 years
in a settlement. The reason I am asking that question is
because there is something curious going on here. The
Department of the Interior on behalf of the Federal Government
was involved for 15 years in negotiations with the tribe, with
the other non-Indian users, with the State. And originally, I
believe, and you might correct me if I am wrong, talked about a
potential settlement of $44 million, and then reduced that to
$10 million.
The implication of that, of course, is first, that the
Federal Government, at least during the negotiations, felt
there was some kind of a liability, perhaps because they
mishandled the water rights; and second, something happened in
the negotiations that persuaded the Federal Government to
decide they won't settle for $44 million, but they will try to
reduce that to $10 million.
Can you give me some background on why that occurred?
Mr. Ragsdale. I will try to, Mr. Chairman.
It is my understanding that the water rights team at the
time that the $45 million number was mentioned were authorized
to present that number at the table, but the final number had
not been approved through all the channels of the Federal
Government, that is, through the Department of Justice and the
Office of Management and Budget.
Now, the Department of the Interior has been engaged with
the tribe and the State, it is my understanding, until the last
year, but the departmental water team has not been engaged in
finalizing the proposed agreement. My understanding is that the
team could be engaged in negotiations very quickly to go over
some of the technical concerns that are embodied in the
proposed water agreement that the bill embraces, and also to
talk about the monetary share and allocation and try to work
through that.
The Chairman. Mr. Ragsdale, it appears to me that the
negotiation is complete, although you have some concerns about
it. The reason I am asking you these questions, I think there
is something curious here about your saying that the team from
the Department of the Interior Department of the Federal
Government at one point proffered $40 plus million as a
settlement offer, but you said that was withdrawn because even
though they were at the table negotiating and offered that,
somehow OMB had not approved it, or Justice had not approved
it? That is a curious way to engage in negotiations, offer
something that has not been approved?
Mr. Ragsdale. Perhaps that is so. I wasn't around so that I
can tell you exactly what happened, but it is my discussion,
and it is common in negotiations; 10 or 20 years ago, I served
on some water teams and tried to solve some Indian water rights
issues. Often in terms of the negotiation, you will have
numbers that are proffered and discussed between the teams, and
then the teams have to get back to the ultimate decider and
decide what can be agreed to. That is where we are now.
The Chairman. It is curious to me. Normally in
negotiations, those that offer something have the authority to
offer it. You are suggesting that we have people who come to a
table offering something they don't have authority to offer.
I am a little disappointed that after 15 years, a
negotiation occurs which appears to mean every side has given
something. The non-Indian users, the Indian tribe, everybody
has given a little something, having been participants in the
negotiations for a long while. The sole exception here is the
Department of the Interior, the Federal Government, which I
think caused the problem, pulls out of the negotiations and
says, not us, not now.
I think that is a curious way to deal with this issue,
given the history. But you have a right to do so, certainly,
and we asked you to come to this hearing because we want your
opinion. But I must tell you, I am very disappointed because it
seems to me that the Federal Government has mismanaged the
water rights of this tribe, and I believe that is the case over
a long period of time. This is not unique. It has happened in a
lot of parts of this Country, as you just said.
I think one of the first obligations of the Federal
Government is to aggressively participate in negotiations to
reach an agreement, a fair settlement for the tribe.
Mr. Ragsdale. Mr. Chairman, if I could just say?
The Chairman. Yes?
Mr. Ragsdale. Again, we hope to be able to do that. I think
that there are some technical issues that the experts in the
department have talked to me about, that they think they can
work with the tribes and the State to come to resolution with.
And then the main issue is going to be the monetary
contribution and the share. I would hope that we would get to
closure on that quickly.
The Chairman. Mr. Ragsdale, I think the train has left the
station. You might have a ticket, but the train is gone. So we
will see.
Chairman Prior, I asked the question you referred to it in
your testimony. You feel as a result of this agreement that you
have given some. I understand. Are you completely happy with
the negotiated settlement that you come here supporting on
behalf of your tribe?
Mr. Prior. Mr. Chairman, historically it has been
documented that this tribe's claims against the Federal
Government could be around $138 million. Through negotiations
with the Federal team, and that give and take that you just
spoke of, this tribe has given up quite a bit to come to this
point, where we feel we could resolve our claims against the
U.S. Government in the area of water once and for all.
The amount $44.9 million in good faith was reported to the
tribes. My leadership truly believe that they were the ones to
make that offer and to have the offer stick. To walk away from
a negotiation and not have it go anyway was totally
disheartening, but we are very hard-working people. My people
are ranchers and agriculturalists at heart, and they have been
since they were removed from their homelands to live here. We
have made do with what we have so far. If it has been
cultivating 12,000 acres, so be it. We have done the best we
could. But this would definitely make the reservation a
thriving agricultural economy once again.
The Chairman. How many enrolled members do you have in the
tribe, Chairman Prior?
Mr. Prior. We have nearly 2,000 enrolled members, sir.
The Chairman. Is this still principally an agricultural
tribe?
Mr. Prior. It is. Agriculture is still the heart of our
tribe's economy. We have ranchers who produce alfalfa and hay
for their livestock. Of course, water is part of the fisheries
issue as well.
The Chairman. Mr. Biaggi, with respect to the State of
Nevada and its position in this negotiation, I assume you were
representing the State's interest, but also trying to bridge
the interests of the non-Indians who moved in to fill the void
of water rights the Indians thought that they possessed. Do you
think this is a fair settlement? Do you think the legislation
offered by Senators Reid and Ensign represent an appropriate
way to resolve this dispute?
Mr. Biaggi. Mr. Chairman, I do. The State of Nevada is rife
with conflicting water issues, not only on the Owyhee, but
every major river system. We are very pleased and honored to be
a part of the discussions and the negotiations, and to be a
part of this agreement. The State of Nevada has stepped up with
its commitments to assist the tribe and the water users in a
fair allocation of the water. We look forward to this moving
forward, and we again thank Senator Reid and believe this is
good legislation.
The Chairman. We have been joined by the Vice Chairman of
the Committee, Senator Craig Thomas from Wyoming. Senator
Thomas, welcome.
STATEMENT OF HON. CRAIG THOMAS,
U.S. SENATOR FROM WYOMING
Senator Thomas. Thank you. I am sorry. I had a conflicting
meeting, so I won't take more time, since I didn't hear the
testimony, but I am glad you had the hearing. Certainly, I hope
we can help come to some agreement to get this thing completed.
The Chairman. Senator Thomas, thank you. It is clear to us,
as I think all of the witnesses have stated, water rights
represent a controversial set of issues, not just in Indian
country, but in many other venues around the Country. But it is
the case, I think, that water rights on behalf of tribal water
rights have been mishandled terribly in many cases by the
Federal Government.
That is why, Mr. Ragsdale, I want you to succeed. I want
the BIA to do well. I want you to make good policy. But I have
to tell you, I am disappointed that every party to these
negotiations, that have gone on for a long, long time, every
party, the Tribes, the non-Indian water users, and the State of
Nevada, has now agreed to a negotiated settlement except the
Department of the Interior. I find that disappointing because,
as I indicated, the history here shows the Department of the
Interior was involved.
I am not just talking about this Administration. I am
talking about going back 15 years. The Department of the
Interior was involved in negotiations and actually proffered a
settlement of $44 million at one point, and then withdrew it. I
am wondering, and I hope this is not the case, if there are
some in the Office of Management and Budget that think it is
cheaper to go to court than it is to settle. I would hope that
is not the case, because the Federal Government has
responsibility for mishandling water rights on behalf of
tribes. We have a trust responsibility, and we need to be
aggressively searching for a fair settlement. That ought to be
our responsibility.
This piece of legislation is bipartisan introduced by both
of the Senators in the State of Nevada. Senator Thomas and I
will take it under advisement with our other Committee members
and hope to move ahead. My sense is that this negotiation,
hard-fought over a long period of time, will be the kind of
thing that will settle a longstanding water dispute. I am
inclined to hope that this Committee will be able to take
effective action to move this to the Floor of the Senate.
Do any of the witnesses have any other comments? If not,
thank you.
This hearing is adjourned.
[Whereupon, at 10:35 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. John Ensign, U.S. Senator from Nevada
Mr. Chairman, Senator Thomas, and Distinguished Members of the
Committee:
Thank you for holding this important hearing on S. 462, The
Shoshone-Paiute Tribes of Duck Valley Water Rights Settlement Act. It
is my pleasure to provide written testimony in support of this measure.
I also wish to thank Senator Harry Reid for his leadership on this bill
and for the work of Tracy Hartzler-Toon, a staff member for this
Committee
The Duck Valley Indian Reservation is the homeland of the Shoshone-
Paiute Tribes. The reservation, established by Executive Order in 1877,
encompasses approximately 290,000 acres across Nevada and Idaho,
including the Owyhee River and two blue line streams. In the 1930s, the
Shoshone-Paiute Tribes' fishing industry was damaged, as the area
salmon runs were ruined with the construction of the Bureau of
Reclamation's Owyhee Irrigation Project Dam. Salmon fishing was an
integral part of the Tribes' economic and cultural livelihood.
The Bureau of Indian Affairs oversaw the Duck Valley Indian
Irrigation Project. The project encompassed 12,000 acres of land that
became the Wild Horse Reservoir, the primary water storage facility
located fifteen miles south of the Reservation. The project provided
very little, if any, economic benefit for the Tribes. Finally, after
years of negotiations, all parties involved have reached an agreement.
S. 462 achieves two things. First, it ratifies the Owyhee River
Settlement in Nevada that was reached in 2006. Additionally, the
Shoshone-Paiute Tribes would receive $60 million. This money would be
allocated for the acquisition of land and water rights, and create and
maintain water-related projects. These projects will assist the Tribes
economic development by producing a functional irrigation system;
promoting wildlife habitat restoration; and development of fish
hatcheries. This legislation provides the Shoshone-Paiute people with
long-term economic security, more opportunities for prosperity, and a
foundation to become more economically self-sufficient.
I applaud all the groups for coming together to reach an
understanding on these difficult water rights issues. The Elko County
Commission, the State of Nevada and Governor Jim Gibbons, upstream
water users and the Tribes.
I look forward to working with my colleagues in the Senate to pass
this legislation and addressing any concerns.
______
Prepared Statement of Hon. Dean Heller, U.S. Representative from Nevada
Mr. Chairman and Members of the Committee on Indian Affairs, thank
you for inviting me to give testimony on the Shoshone-Paiute Tribes of
Duck Valley Water Rights Settlement Act. This legislation will settle
water rights claims that have gone unresolved far too long for the
Shoshone-Paiute Tribes of the Duck Valley Reservation in my district in
northern Nevada.
The Duck Valley Reservation was established in 1877 and is located
along the Nevada/Idaho border. Water in the arid western states is a
precious commodity and is the lifeblood for farmers, ranchers, and
wildlife. Without proper water management, none of this can exist.
With the appropriate allocation of the East Fork of the Owyhee
River, Blue Creek, and Mary's Creek, the Tribe can realize its full
potential for raising livestock, farming, fisheries, and maintain
healthy wildlife populations. As you can see, this legislation is very
important for the health of the Duck Valley Reservation.
The Shoshone-Paiute Tribes of Idaho and Nevada have engaged in
negotiations to resolve the water rights of the Duck Valley
Reservation. The legislation under consideration today approves,
ratifies, and confirms the agreement that the Shoshone-Paiute Tribes of
the Duck Valley Indian Reservation and the Upstream Water Users of the
East Fork Owyhee River.
The Duck Valley Water Rights Settlement Act will complete the water
agreement and provide adequate funding for water management and
irrigation projects. I intend to introduce companion legislation in the
near future to finally help resolve this important Issue.