[Senate Report 108-18]
[From the U.S. Government Publishing Office]
Calendar No. 31
108th Congress Report
SENATE
1st Session 108-18
======================================================================
APPROVING THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF THE ZUNI INDIAN
TRIBE IN APACHE COUNTY, ARIZONA, AND FOR OTHER PURPOSES
_______
March 10, 2003.--Ordered to be printed
_______
Mr. Campbell, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 222]
The Committee on Indian Affairs, to which was referred the
bill (S. 222) to approve the settlement of the water rights
claims of the Zuni Indian Tribe in Apache County, Arizona, and
for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
PURPOSE
The purpose of the bill is to resolve all claims in the
Zuni Indian Tribe to water rights in the Little Colorado River
basin and elsewhere in Arizona and to provide resources to
restore riparian wetlands on the Zuni Heaven Reservation that
are of great religious and cultural significance to the tribe
and its members.
BACKGROUND
Congress considered the history of the Zuni Indian Tribe in
detail when it enacted the Zuni Claims Settlement Act of 1990,
P.L. 101 486 (104 Stat. 1174). As the House Committee on
Interior and Insular Affairs noted in its report, H. Rep. 101
727, 101st Cong., 2nd Sess. (1990), on a companion bill (H.R.
4143) to the legislation that was enacted into law (S. 2203),
the Zuni Tribe and its probable ancestors--the Anasazi and
Mogollon--inhabited an area as large as 15 million acres in
what is now the States of Arizona and New Mexico.
This area was inhabited as early as 500 B.C., and between
1250 A.D. and 1540 A.D. large pueblos were constructed in this
area. By 1450 A.D., this was a cultural and economic center for
the Zuni, who used the entire 15 million acres for hunting,
gathering, and farming as well as other life-sustaining
activities. Spanish explorers learned of the Zuni and the
``Kingdom of Cibola'' in the late 1530s, and the first major
contract with Europeans took place when Coronado's expedition
encountered the Zuni as he searched for Cibola's ``Seven Cities
of Gold''.
Spanish missionaries recorded the cultivation of corn by
the Zuni in 1581, and an expedition in 1583 noted the Zuni's
irrigation and hunting practices. In 1598, Spain officially
recognized the Zuni Province when the Zuni acknowledged Spanish
sovereignty over them. Under Spanish law, the Zuni retained
ownership of their lands and were treated as autonomous and
self-governing notwithstanding the overriding sovereignty of
Spain. The Zuni maintained their autonomy under the government
of Mexico after that nation achieved its independence from
Spain in 1821. The 1848 Treaty of Guadalupe Hidalgo offered the
Zuni the same legal protections they had received under Spanish
and Mexican rule.
Subsequently, however, the Zuni were deprived of all but
about 3 percent of the land they had earlier controlled. In
1877, the Zuni Reservation was established by executive order,
consisting of 408,000 acres of land in McKinley and Valencia
Counties in western New Mexico. Notwithstanding this diminution
of their lands, the Zuni have continued to make religious
pilgrimages from their reservation in New Mexico to the area
now included within the Zuni Heaven Reservation in Arizona.
See, United States on behalf of the Zuni Tribe of New Mexico v.
Platt, 730 F. Supp. 318, 318 21 (D. N.M. 1990).
The Zuni Heaven Reservation was recognized by statute in
1984, P.L. 98 408, 98 State. 1533 (1984), as amended by P.L.
101 486, 104 Stat. 1174 (1990), to protect long-standing
religious and subsistence activities by the Zuni Indian Tribe
on certain lands in Apache County, Arizona, located upstream of
the confluence of the Little Colorado and Zuni Rivers.
The rights of all water users in the basin of the Little
Colorado River in Arizona have been in litigation since 1979
before the Superior Court of the State of Arizona in and for
the County of Apache in an action captioned In re The General
Adjudication of All Rights to Use Water in the Little Colorado
River.
Public policy favors the resolution of such claims by means
of negotiated settlements, rather than through lengthy and
costly litigation. After more than four years of negotiations
amongst representatives of the United States, the Zuni Tribe,
the State of Arizona, the Salt River Project, Tucson Electric
Power Company, local irrigation companies, and neighboring non-
Indian communities located in the Little Colorado River basin,
on June 7, 2002, the parties entered into a settlement
agreement (Settlement Agreement) to resolve all of the tribe's
claims to water rights, to assist the tribe in acquiring
surface water rights, to provide for the tribe's's use of
groundwater, and to provide for the restoration of riparian
wetlands of great cultural and religious significance to the
tribe.
The proposed legislation ratifies and confirms that
Settlement Agreement, and authorizes the appropriation of funds
necessary to carry out its terms. The legislation also
approves, ratifies, and confirms various related agreements
among the parties. Because of the unique nature of the Zuni
Heaven Reservation and the purposes for which it was
established, the terms of the Settlement Agreement and the
provisions of S. 222 which seek to implement the Settlement
Agreement in some instances represent a departure from standard
principles of Federal-Indian law.
The Committee recognizes these unique circumstances and the
history which gives rise to them, and further recognizes that
the provisions of the Settlement Agreement and the implementing
legislation are intended to address the unique circumstances as
well as the respective positions of the parties to the
Settlement Agreement, and are not intended to establish a
precedent for other settlements of tribal claims to land and
water rights.
LEGISLATIVE HISTORY
S. 222 was introduced on January 28, 2003, by Senator Kyl,
for himself and Senator McCain, and was referred to the
Committee on Indian Affairs. On February 26, 2003, the
Committee ordered the bill favorably reported to the Senate
with the recommendation that the Senate do pass S. 222.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
The Committee on Indian Affairs, in an open business
meeting on February 26, 2003, by voice vote approved S. 222 and
ordered the bill to be reported favorably to the Senate.
Section-by-Section Analysis
Section 1.--Short title. Section 1 cites the short title of
the bill as the Zuni Indian Tribe Water Rights Settlement Act
of 2003.
Section 2.--Findings and purposes. Section 2(a) sets forth
9 Congressional findings that provide the rationale and basis
for the decision by all parties, including the United States,
to resolve the tribal water claims by negotiated settlement.
Section 2(b) describes the purposes of S. 222, which include to
approve, ratify, and confirm the Settlement Agreement entered
into by the tribe and neighboring non-Indians, to authorize and
direct the Secretary of the Interior (Secretary) to execute and
perform the Settlement Agreement and related waivers, to
authorize and direct the United States to take legal title to
certain lands and to hold such lands in trust for the benefit
of the tribe, and to authorize the actions, agreements, and
appropriations as provided for in the Settlement Agreement S.
222.
Section 3.--Definitions. Section 3 provides 11 definitions
for terms employed in the bill. These terms are: ``Eastern LCR
Basin'', ``Fund'', ``Intergovernmental Agreement'', ``Pumping
Protection Agreement'', ``Reservation'' or ``Zuni Heaven
Reservation'', ``Secretary'', ``Settlement Agreement'',
``SRP'', ``TEP'', ``Tribe'', ``Zuni Indian Tribe'' or ``Zuni
Tribe'', and ``Zuni Lands''.
Section 4.--Authorizations, ratifications, and
confirmations. Section 4(a) approves, ratifies, confirms, and
declares to be valid the Settlement Agreement, to the extent it
does not conflict with the provisions of S. 222. It also
authorizes and directs the Secretary to execute the Settlement
Agreement and any necessary amendments thereto to make the
Settlement Agreement consistent with this legislation.
Section 4(b) authorizes the appropriation, to the Zuni
Indian Tribe Water Rights Fund established in 6(a),
$19,250,000, to be allocated by the Secretary as follows:
$3,500,000 in FY2004 for the acquisition of at least 2,350
acre-feet per year of water rights and associated lands and for
related activities, the acquisition to be completed by the
deadline set forth in 9(b), and $15,750,000, to be appropriated
in three equal installments in FY2004, 2005, and 2006, to
restore, rehabilitate, and maintain the Zuni Heaven
Reservation, including the Sacred Lake, wetlands, and riparian
areas.
The Committee has been advised by the parties that in the
event the deadline set forth in the Settlement Agreement is in
conflict with the schedule of funding set forth in this
subsection, the Settlement Agreement will be amended to conform
to the provisions of S. 222.
Section 4(c) provides that, except as provided in 9, the
following three agreements, including amendments, are approved,
ratified, confirmed, and declared to be valid: the agreement
between the Salt River Project Agricultural Improvement and
Power District, the tribe, and the United States on behalf of
the tribe dated June 7, 2002; the agreement between Tucson
Electric Power Company, the tribe, and the United States on
behalf of the tribe dated June 7, 2002; and the agreement
between the Arizona State Land Department, the tribe, and the
United States on behalf of the tribe dated June 7, 2002.
Section 5.--Trust lands Section 5(a) provides that, upon
satisfaction of conditions set forth in paragraph 6.2 of the
Settlement Agreement and the requirements of 9(a), the
Secretary shall take the legal title to certain lands
identified in this subsection into trust for the benefit of the
tribe.
Section 5(b) provides that, following the acquisition by
the tribe of certain lands identified in this subsection and
upon satisfaction of conditions set forth in paragraph 6.2 of
the Settlement Agreement and the requirements of 9(a), the
Secretary shall take the legal title to those lands into trust
for the benefit of the tribe.
Section 5(c) provides that, following the acquisition by
the tribe of certain lands identified in this subsection and
upon satisfaction of conditions set forth in paragraph 6.2 of
the Settlement Agreement and the requirements of 9(a), the
Secretary shall take the legal title to those lands into trust
for the benefit of the tribe and shall make such lands part of
the Zuni Indian Tribe Reservation.
Section 5(d) provides that the Secretary shall have no
discretion regarding the acquisitions described in subsection
(a), (b), and (c).
Section 5(e) provides that no lands within Arizona, other
than the land described in subsection (a), (b), and (c), shall
hereafter be taken into trust by the United States for the
benefit of the tribe except by authority of an Act of Congress
enactment after the date of enactment of this legislation and
specifically authorizing the taking of lands into trust by the
benefit of the tribe.
Section 5(f) provides that any written certification by the
Secretary under subparagraph 6.2.B of the Settlement Agreement
constitutes final agency action under the Administrative
Procedures Act and is reviewable as provided under chapter 7 of
title 5, United States Code.
Section 5(g) provides that lands taken into trust pursuant
to subsection (a), (b), or (c) shall not have Federal reserved
rights to surface water or groundwater. Section 5(h) provides
that water rights and uses for lands taken into trust pursuant
to subsection (a) or (c) must be determined under subparagraph
4.1.A and article 5 of the Settlement Agreement. The tribe
retains any rights or claims to water associated with lands
taken into trust pursuant to subsection (b) under State law,
subject to the terms of the Settlement Agreement.
Section 5(i) provides that water rights appurtenant to
lands taken into trust pursuant to subsections (a), (b), or (c)
shall not be subject to forfeiture and abandonment. Section
5(j) provides that, with respect to lands taken into trust
pursuant to subsection (a) and (b), the tribe shall make
payments in lieu of all current and future State, county, and
local ad valorem property taxes that would otherwise be
applicable to those lands if they were not in trust.
Section 5(k) provides that the tribe is authorized to enter
the Intergovernmental Agreement with Apache County, Arizona,
and the State of Arizona identified in 3(3) and any
intergovernmental agreement required to be entered into by the
tribe under the terms of the Intergovernmental Agreement. The
scope of the intergovernmental agreements to be entered into by
the tribe under the terms of the Intergovernmental Agreement is
as set forth in subparagraph 6.2.A of the Settlement Agreement.
Section 5(l) provides that the Secretary shall acknowledge
the terms of any intergovernmental agreement entered into by
the tribe under this section and shall not, in any
administrative or judicial action, seek to abrogate the terms
of any such intergovernmental agreement consistent with
subparagraph 6.2.A of the Settlement Agreement and S. 2743.
The subsection further provides that if the United States
is permitted to intervene in a judicial action commenced during
a dispute over any intergovernmental agreement entered under
this section, the United States shall not remove the action to
the Federal courts, except that the United States may seek
removal if the action concerns the Secretary's action regarding
the issuance of rights-of-way under 8(c), the authority of a
Federal agency to administer programs or the issuance of a
permit under the Federal Water Pollution Control Act (33 U.S.C.
1251 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et
seq.), the Clean Air Act (42 U.S.C. 7401 et seq.), or any other
Federal law specifically addressed in intergovernmental
agreements, or if the intergovernmental agreement is
inconsistent with a Federal law for the protection of civil
rights, public health, or welfare.
Section 5(m) provides that nothing in this legislation
shall be construed to affect the application of the Act of May
25, 1918 (25 U.S.C. 211) within the State of Arizona. Section
5(m) does not affect the application of Jicarilla Apache Tribe
v. State of New Mexico, 742 F. Supp. 1487 (D. N.M. 1990), in
the State of New Mexico, or the application of Masayesva v.
Zah, 792 F. Supp. 1165 (D. Ariz. 1992), in the State of
Arizona.
Section 5(n) provides that nothing in this section repeals,
modifies, amends, changes, or otherwise affects the Secretary's
obligation to the tribe pursuant to P.L. 98 408, 98 Stat. 1533,
as amended by the Zuni Claims Settlement Act of 1990, P.L. 101
486, 104 Stat. 1174.
Section 6.--Development fund Section 6(a) establishes the
Zuni Indian Tribe Water Rights Development Fund (Fund) in the
Treasury of the United States, to be managed and invested by
the Secretary and to consist of funds appropriated under
section 4(b), the appropriation to be contributed by the State
of Arizona pursuant to paragraph 7.6 of the Settlement
Agreement, and any other funds paid to the Secretary on behalf
of the Zuni Tribe pursuant to the Settlement Agreement.
Section 6(b) provides that the Secretary, in the
management, investment, and disbursement of the Fund, shall
comply with the American Indian Trust Fund Management Reform
Act of 1994 (25 U.S.C. 4001 et seq.), S. 222, and the
Settlement Agreement.
Section 6(c) provides that investment of the assets of the
Fund by the Secretary shall comply with the Act of April 1,
1880 (25 U.S.C. 161), the first section of the Act of June 24,
1938 (25 U.S.C. 162a), and subsection (b).
Section 6(d) provides that funds appropriated pursuant to
4(b)(2) and funds contributed by the State of Arizona pursuant
to paragraph 7.6 of the Settlement Agreement shall be available
for expenditure or withdrawal only after the requirements of
9(a) have been met.
Section 6(e) provides that the tribe may make withdrawals
from the Fund only after the Secretary has approved a tribal
management plan as described in the 1994 Trust Reform Act which
requires that funds be spent only for the purposes set forth in
4(b).
The Secretary is authorized to take judicial or
administrative action to enforce the requirement that the
assets of the Fund be used only in accordance with the
provisions of S. 222. Neither the Secretary or the Secretary of
the Treasury shall have any liability for the expenditure or
investment of monies withdrawn from the Fund (the inclusion of
this provision is not intended to suggest, however, that
existing law does not fully protect the United States from
liability under these circumstances, as it is the Committee's
view that 25 U.S.C. 4022(c) would provide such protection). The
tribe is to submit an expenditure plan for approval by the
Secretary as to any monies held in the Fund that are not
withdrawn pursuant to this subsection. The plan is to describe
the manner in which, and the purposes for which, such monies
will be used. The Secretary determines that the plan is
reasonable and is consistent with the provisions of S. 222.
The tribe is to submit to the Secretary an annual report
describing all expenditures from the Fund during the period of
the report. Section 6(f) provides that notwithstanding
subsection (e), funds authorized to be appropriated pursuant to
4(b)(1) shall be available for use upon appropriation in
accordance with 4(b)(1) and shall be distributed by the
Secretary to the tribe upon receipt by the Secretary of a
written notice from the tribe and a tribal council resolution
describing the purposes for which the funds will be used.
In the event the requirements of 9(a) are not met and the
Settlement Agreement becomes null and void pursuant to 9(b),
the United States may set off any funds expended or withdrawn
from the amount appropriated pursuant to 4(b)(1), together with
any accrued interest, against any claims asserted by the tribe
against the United States relating to water rights of the Zuni
Heaven Reservation. Any water rights acquired with funds
described in this subsection are to be credited; against any
water rights secured for the Zuni Heaven Reservation by the
tribe, or by the United States on behalf of the tribe, in the
Little Colorado River General Stream Adjudication or in any
future settlement of claims for those water rights. Section
6(g) provides that no part of the Fund shall be distributed on
a per capita basis to members of the tribe.
Section 7.--Claims extinguishment; waivers and releases.
Section 7(a) provides that the benefits realized by the tribe
and its members under this legislation, including retention of
any claims and rights, shall constitute full satisfaction of
all members' claims for water rights under Federal, State, and
other laws (including claims rights in groundwater, surface
water, and effluent) for Zuni Lands (as defined in 3(11)) from
time immemorial through the effective date set forth in 9(a),
and for injuries during that period to such rights (including
also claims for damages for deprivation of water rights and for
changes to underground water tables) under Federal, State, and
other laws.
The legislation is not intended to recognize or establish
any right of a member of the tribe to water on the Zuni Heaven
Reservation.
Section 7(b) authorizes the tribe, on behalf of itself and
its members, and the Secretary, on behalf of the United States
in its capacity as trustee for the tribe and its members, as
part of their obligations under the Settlement Agreement, to
execute a waiver and release of claims against the State of
Arizona, any agency or political subdivision thereof, or any
other person under Federal, State, or other law, for:
(1) Past, present, and future claims (from time
immemorial to the effective date set forth in 9(a) and
any time thereafter) to water rights (including
groundwater, surface water, and effluent) for Zuni
Lands, except as provided in article 5 of the
Settlement Agreement;
(2) Past and present claims (to the effective date
set forth in 9(a)) for injuries to water rights
(including also claims for damages for deprivation of
water rights and changes to underground water tables);
and
(3) Past, present, and future claims for water rights
and injuries to water rights (including also claims for
damages for deprivation of water rights and changes to
underground water tables) for lands outside of the Zuni
Lands but located within the Little Colorado River
basin in Arizona and based upon aboriginal occupancy of
lands by the tribe and its predecessors.
Section 7(c) authorities the tribe, as part of the
performance of its obligations under the Settlement Agreement,
to execute a waiver and release (subject to paragraphs 11.4 and
11.6 of the Settlement Agreement) for claims against the United
States (acting in its capacity as trustee for the tribe and its
members or otherwise acting in their behalf), its agencies,
officials, and employees, for:
(1) Past, present, and future claims (from time
immemorial to the effective date set forth in 9(a) and
any time thereafter) to water rights for Zuni lands
(including groundwater, surface water, and effluent)
and any claims for damages for deprivation of such
water rights;
(2) Past and present claims (to the effective date
set forth in 9(a)) for injuries to and deprivation of
such water rights for Zuni Lands; and
(3) Past, present, and future claims for water rights
(including groundwater, surface water, and effluent) as
well as for injuries to and claims for deprivation of
such water rights for lands outside the Zuni Lands but
located within the Little Colorado River basin in
Arizona and based upon aboriginal occupancy of lands by
the tribe and its predecessors.
Section 7(d)(1) authorizes the tribe, on behalf of itself
and its members, to waive and release all claims against the
State of Arizona, its agencies and political subdivisions, and
any other person under Federal, State, or other law for claims
of interference with the trust responsibility of the United
States to the tribe arising out of the negotiation of the
Settlement Agreement or S. 222, as well as all claims against
those same entities (subject to paragraphs 11.4, 11.6, and 11.7
of the Settlement Agreement) for past and present claims,
including natural resource damage claims under the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980 (42 U.S.C. 9601 et seq.) (CERCLA), the
Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.) (OPA), or
any other applicable statute, for injury to water quality
accruing from time immemorial through the effective date set
forth in 9(a) for lands within the Little Colorado River basin
in the State of Arizona.
The tribe is also authorized to waive future claims,
including natural resource claims under CERCLA, OPA, or any
other applicable statute, for lands within the Eastern Little
Colorado River [LCR] basin (as defined in 3(1) caused by the
lawful diversion or use of surface water, the lawful withdrawal
of water (except within the Zuni Protection Area as provided in
article 5 of the Settlement Agreement), the parties'
performance of any obligations under the Settlement Agreement,
the discharge of oil associated with routine physical or
mechanical maintenance of wells or diversion structures not
inconsistent with applicable law, the discharge of oil
associated with routine start-up and operation of well pumps
not inconsistent with applicable law, or any combination
thereof.
Section 7(d)(2) authorizes the tribe, on behalf of itself
and its members, to waive its right to request that the United
States bring any claims for injuries to water quality under the
natural resource damage provisions of CERCLA, OPA, or any other
applicable statute, for lands within the Little Colorado River
basin in the State of Arizona accruing from time immemorial
through the effective date set forth in 9(a), as well as future
claims for injuries or threat of injuries to water quality
under the natural resource damage provisions of CERCLA, OPA, or
any other applicable statute, for lands within the Eastern LCR
basin caused by the lawful diversion or use of surface water,
the lawful withdrawal of water (except within the Zuni
Protection Area as provided in article 5 of the Settlement
Agreement), the parties' performance of any obligations under
the Settlement Agreement, the discharge of oil associated with
routine physical or mechanical maintenance of wells or
diversion structures not inconsistent with applicable law, the
discharge of oil associated with routine start-up and operation
of well pumps not inconsistent with applicable law, or any
combination thereof.
Section 7(d)(3) provides that notwithstanding the waivers
of future water quality claims authorized in paragraphs
(1)(B)(ii) and (2)(B) of this subsection, the tribe, on behalf
of itself and its members, retains any statutory claims for
injury or threat of injury to water quality under CERCLA and
OPA as described in subparagraphs 11.4(D)(3) and (4) of the
Settlement Agreement that accrue at least 30 years after the
effective date set forth in 9(a).
Section 7(e) provides that the United States, as part of
the performance of its obligations under the Settlement
Agreement, waives and releases past and present claims (subject
to the limitations set forth in paragraphs 11.4, 11.6, and 11.7
of the Settlement Agreement) against the State of Arizona, its
agencies and political subdivisions, and any other entity for:
past and present common law claims accruing from time
immemorial to the effective date set forth in 9(a) arising for
or relating to water quality in which the injury asserted is to
the tribe's interest in water, trust land, and natural
resources in the Little Colorado River basin in the State of
Arizona; and all past and present natural resource damage
claims accruing through the effective date set forth in 9(a)
based on injury or threat to natural resources in the Little
Colorado River basin in Arizona, but only for those cases in
which the United States,or any Federal official, would act on
behalf of the tribe as a natural resource trustee pursuant to
the Natural Resource Contingency Plan as set forth in 40 CFR
300.600(b)(2) on the effective date of this legislation under
9(a).
This subsection further provides that the United States,
subject to the retentions set forth in paragraphs 11.4, 11.6
and 11.7 of the Settlement Agreement, also waives and releases
future common law claims against the State of Arizona, its
agencies and political subdivisions, and any other entity
arising from or relating to water quality in which the injury
asserted is to the tribe's interest in water, trust land, and
natural resources in the Eastern LCR basin in Arizona accruing
after the effective date described in 9(a) and caused by the
lawful diversion or use of surface water, the lawful withdrawal
of water (except within the Zuni Protection Area as provided in
article 5 of the Settlement Agreement), the parties'
performance of any obligations under the Settlement Agreement,
the discharge of oil associated with routine physical or
mechanical maintenance of wells or diversion structures not
inconsistent with applicable law, the discharge of oil
associated with routine start-up and operation of well pumps
not inconsistent with applicable law, or any combination
thereof.
Section 7(f) provides that, subject to subsection (b) and
(e), nothing in S. 222 or the Settlement Agreement affects any
right of the United States, or the State of Arizona, to take
any actions (including enforcement actions) under any laws
(including regulations) relating to humanhealth, safety, and
the environment.
Section 8.--Miscellaneous provisions Section 8(a) provides
for the waiver of the sovereign immunity of the United States
and the Tribe (except as to claims for money damages not
specifically provided for in the Settlement Agreement) in the
event any party to the Settlement Agreement or a Pumping
Protection Agreement files a lawsuit only resulting to the
interpretation or enforcement of this legislation, certain
agreements identified in 4(c), or a Pumping Protection
Agreement. This subsection also provides for a waiver of
Federal and tribal immunity, with the same limitation, if a
landowner or water user in the Little Colorado River basin in
Arizona files a lawsuit only relating to directly to the
interpretation or enforcement of Article 11 of the Settlement
Agreement, the rights of de minimis users in subparagraph 4.2.D
of the Settlement Agreement, or the rights of underground water
users under Article 5 of the Settlement Agreement.
The tribe is authorized to waiver its sovereign immunity
from suit in the superior Court of Apache County, Arizona
(except with claims for monetary awards not specially
authorized in the Intergovernmental Agreement) for the limited
purposes of enforcing the terms of the Intergovernmental
Agreement and any intergovernmental agreement required to be
entered into by the tribe under the terms of the
Intergovernmental Agreement. Although the text of the
legislation does not address the issue of a waiver of the
sovereign immunity of the State of Arizona, the waiver of
tribal sovereign immunity set forth therein is grounded in
assurances made to the Committee that the tribe has adequate
and reciprocal judicial remedies against the State.
The Committee views S. 222 as a contract, and the
availability of the tribe of such remedies is a basic
assumption of that contract.
Section 8(b) provides that, with respect to water rights
made available under the Settlement Agreement and used on the
Zuni Heaven Reservation, such rights shall be held in trust by
the United States in perpetuity and shall not be subject to
forfeiture or abandonment. The subsection further provides that
State law shall not apply to water uses on the Zuni Heaven
Reservation, and that water rights and uses on the Zuni Heaven
Reservation shall not be subject to State law or regulation,
except that the court with jurisdiction over the decree entered
pursuant to the Settlement Agreement of the Norviel Decree
Court may assess administrative fees for delivery of this
water.
Section 8(c) provides that land taken into trust pursuant
to 5(a) and 5(b) shall be subject to existing easements and
rights-of-way and that, notwithstanding any other provision of
law, the Secretary, in consultation with the tribe, shall grant
additional rights-of-way or expansions of existing rights-of-
way for roads, utilities, and other accommodations to adjoining
landowners if the proposed right-of-way: (1) is necessary to
the needs of the applicant; (2) will not cause significant and
substantial harm to the Tribe's wetland restoration project or
religious practices; and (3) will comply with the procedures in
part 169 of title 25, Code of Federal Regulations (where not
inconsistent with this subsection) and with other generally
applicable Federal laws unrelated to the acquisition of
interests across trust lands.
Section 8(d) provides that the United States shall not seek
reimbursement of costs arising out of the implementation of S.
222 or of the Settlement Agreement against any Indian-owned
land within the tribe's Reservation, or make any assessment
against such lands in regard to such costs.
Section 8(e) provides that, except as provided in paragraph
5.3 of the Settlement Agreement (recognizing the tribe's use of
1,500 acre-feet per annum of groundwater), neither S. 222 nor
the Settlement Agreement create any vested right to groundwater
under Federal or State law, or any priority to the use of
groundwater under Federal or State law that would be superior
to any other right or use of groundwater. Notwithstanding this
limitation, the rights of parties to the intergovernmental
agreements referred to in 4(c)(1), (2), or (3) and in paragraph
5.8 of the Settlement Agreement, as among themselves shall be
as stated in those agreements.
Section 8(f) provides that nothing in the Settlement
Agreement or in S. 2223 quantifies or otherwise affects the
water rights, claims, or entitlements to water of any Indian
tribe, band, or community, other than the Zuni Indian Tribe.
Section 8(g) provides that execution of the Settlement
Agreement shall not constitute major Federal action under the
National Environmental Policy Act, 42 U.S.C. 4321 et seq.
(NEPA), however the Secretary shall comply with NEPA and shall
carry out any other necessary compliance during the
implementation of this settlement.
Section 9.--Effective date for waiver and release
authorizations. Section 9(a) provides that the waiver and
release authorizations contained in 7(b) and 7(c) shall become
effective as of the date the Secretary publishes in the Federal
Register a statement of all of the following findings:
(1) That this legislation has been enacted in a form
approved by the parties in paragraph 3.1.A of the
Settlement Agreement;
(2) That the funds authorized by 4(b) have been
appropriated and deposited into the Fund;
(3) That the State of Arizona has appropriated and
deposited into the Fund the amount required by
paragraph 7.6 of the Settlement Agreement;
(4) That the tribe has either purchased or acquired
the right to purchase at least 2,350 acre-feet per
annum or surface water rights, or waived this condition
pursuant to paragraph 3.2 of the Settlement Agreement;
(5) That, pursuant to subparagraph 3.1.D of the
Settlement Agreement, the severance and transfer of
surface water rights that the tribe owns or has a right
to purchase have been conditionally approved, or that
the tribe has waived this condition as provided in
paragraph 3.2 of the Settlement Agreement;
(6) That, pursuant to subparagraph 3.1.E of the
Settlement Agreement, the tribe and Lyman Water Company
have executed an agreement relating to the severance
and transfer of surface water rights acquired by the
tribe and the United States, the pass-through, use, or
storage of the tribe's surface water rights in Lyman
Lake, and the operation of Lyman Dam;
(7) That, pursuant to subparagraph 3.1.F of the
Settlement Agreement, all parties to the Settlement
Agreement have agreed and stipulated to certain Arizona
Game and Fish abstracts of water uses;
(8) That, pursuant to subparagraph 3.1.G of the
Settlement Agreement, all parties to the Settlement
Agreement have agreed to the location of an observation
well and that well has been installed;
(9) That, pursuant to subparagraph 3.1.H of the
Settlement Agreement, the tribe, Apache County,
Arizona, and the State of Arizona have executed an
Intergovernmental Agreement that satisfies all of the
conditions in paragraph 6.2 of the Settlement
Agreement;
(10) That the tribe has acquired title to a
particular section of land adjacent to the Zuni Heaven
Reservation;
(11) That the Settlement Agreement has been modified
if and to the extent that it is in conflict with this
legislation and such modification has been agreed to by
all the parties to the Settlement Agreement; and
(12) That a court of competent jurisdiction has
approved the Settlement Agreement by a final judgment
and decree. Section 9(b) provides that if the
publication in the Federal Register required under
subsection (a) has not occurred by December 31, 2006,
sections 4 and 5, and any agreements entered into
pursuant thereto (including the Settlement Agreement
and the Intergovernmental Agreement) shall not
thereafter be effective and shall be null and void.
This subsection further provides that any funds and the
interest accrued thereon appropriated pursuant to
4(b)(2) shall revert to the Treasury, and any funds and
the interest accrued thereon appropriated pursuant to
paragraph 7.6 of the Settlement Agreement shall revert
to the State of Arizona.
COST AND BUDGETARY CONSIDERATIONS
On February 27, 2003, the cost estimate of the
Congressional Budget Office was received and a copy of that
estimate follows:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 27, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 222, the Zuni Indian
Tribe Water Rights Settlement Act of 2003.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Julie
Middleton.
Sincerely,
Douglas Holtz-Eakin,
Director.
Enclosure.
S. 222--Zuni Indian Tribe Water Rights Settlement Act of 2003
Summary: S. 222 would approve and ratify a water rights
settlement agreement between the Zuni Indian Tribe, the
surrounding community, and the State of Arizona. The bill would
authorize the appropriation of funds to the Department of the
Interior (DOI) to implement the agreement, but most of those
funds could not be spent until the agreement is approved by all
parties involved and certain other conditions have been met. S.
222 would create the Zuni Indian Tribe Water Rights Development
Fund and would allow the tribe to spend amounts deposited in
the fund (including interest earnings) without further
appropriation.
Based on information from DOI, CBO estimates that
implementing S. 222 would cost $19 million over the 2004-2006
period, assuming appropriation of the authorized amounts.
Enacting S. 222 would not affect direct spending or revenues.
S. 222 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act (UMRA).
Any costs or duties imposed by this bill upon state, local, or
tribal governments would be those assumed by them voluntarily
as parties to the settlement agreement.
Estimated cost to the Federal Government: The estimated
budgetary impact of S. 222 is shown in the following table. The
costs of this legislation fall within budget function 450
(community and regional development).
----------------------------------------------------------------------------------------------------------------
By fiscal year, in millions of dollars--
-----------------------------------------------------
2003 2004 2005 2006 2007 2008
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Authorization Level....................................... 0 9 5 5 0 0
Estimated Outlays......................................... 0 2 2 15 0 0
----------------------------------------------------------------------------------------------------------------
Basis of estimate: S. 222 would authorize the appropriation
of a total of $19 million over the 2004-2006 period to be
deposited in the Zuni Indian Tribe Water Rights Development
Fund to satisfy a settlement agreement between the Zuni Indian
Tribe, the surrounding community, and the state of Arizona. For
purposes of this estimate, CBO assumes that the amounts
authorized for each year would be appropriated as specified in
the bill.
Within that total authorization, S. 222 would authorize the
appropriation of $5 million each year over the 2004-2006 period
to deposit in Zuni Indian Tribe Water Rights Development Fund
to benefit the Zuni tribe. Funds would be used to restore,
rehabilitate, and maintain the Zuni Heaven Reservation and
could not be spent by the tribe until the settlement is agreed
to by all parties and certain conditions are met. Unless all
conditions of the settlement are met by December 31, 2006, any
funds appropriated to implement S. 222 would be returned to the
Treasury.
Trust funds that are held and managed in a fiduciary
capacity by the federal government on behalf of Indian tribes
are treated as nonfederal entities. As a result, outlays would
be recorded on the budget in the year that all funds are
provided to the tribe and the settlement agreement is final.
Therefore, CBO estimates that this provision would cost $15
million in fiscal year 2006. Once the settlement is final and
those amounts are recorded as outlays, subsequent use by the
tribe would be nonbudgetary (that is, it would have no further
impact on the federal budget).
S. 222 also would authorize the appropriation of $4 million
in fiscal year 2004 for the Zuni tribe to purchase water rights
and associated land in Arizona. Based on information from the
tribe, CBO estimates that the tribe would complete this
purchase by the end of fiscal year 2005. If the settlement
agreement does not go into affect by the deadline, the $4
million provided for water rights and land acquisition would
not be returned to the Treasury. Consequently, CBO estimates
that this provision would cost $4 million over the 2004-2005
period, assuming the appropriation of the specified amounts.
Intergovernmental and private-sector impact: S. 222
contains no intergovernmental or private-sector mandates as
defined in UMRA. Any costs or duties imposed by this bill upon
state, local, or tribal governments would be those assumed by
them voluntarily as parties to the settlement agreement.
Estimate prepared by: Federal costs: Julie Middleton;
Impact on State, Local, and Tribal Governments: Marjorie
Miller; and Impact on Private Sector: Cecil McPherson.
Estimate approved by: Peter H. Fontaine, Deputy Assistant
Director for Budget Analysis.
EXECUTIVE COMMUNICATIONS
On February 26, 2003, in a letter to Chairman Campbell, the
Department of Interior expressed its support for S. 222. A copy
of that letter follows:
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, February 25, 2003.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Department of the Interior
understands the Committee will be marking up S. 222, the ``Zuni
Indian Tribe Water Rights Settlement Act of 2003.'' S. 222 is
nearly identical to S. 2743, the ``Zuni Indian Tribe Water
Rights Settlement Act of 2002,'' as reported during the 107th
Congress. The Administration supported S. 2743 as reported and
is pleased this important legislation has been reintroduced
during this Congress.
S. 222 is the product of a cooperative effort over the last
five years among the Zuni Tribe, the State of Arizona, the
United States, the Salt River Project and many other local
water users. The bill would approve and authorize federal
participation in the main settlement agreement, which includes
three subsidiary agreements with individual parties. When fully
implemented, this agreement would constitute a final settlement
of the water rights claims of the Zuni Tribe and the United
States' claims on behalf of Zuni. This settlement involves
significant cost sharing and cooperation among the federal
government and the state and local parties.
The Office of Management and Budget has advised that there
is no objection to the presentation of this report from the
standpoint of the Administration's program.
Sincerely,
David L. Bernhardt,
Director, Office of Congressional and
Legislative Affairs and Counselor to the Secretary.
REGULATORY IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill evaluate
the regulatory paperwork impact that would be incurred in
carrying out the bill. The Committee believes that the
regulatory impact of S. 222 will be minimal.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 222 will not result in any changes in existing
law.