[House Report 110-484]
[From the U.S. Government Publishing Office]



110th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    110-484

======================================================================
 
 AMENDING THE ARIZONA WATER SETTLEMENTS ACT TO MODIFY THE REQUIREMENTS 
                     FOR THE STATEMENT OF FINDINGS

                                _______
                                

 December 11, 2007.--Committed to the Committee of the Whole House on 
            the State of the Union and ordered to be printed

                                _______
                                

  Mr. Rahall, from the Committee on Natural Resources, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 3739]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on Natural Resources, to whom was referred the 
bill (H.R. 3739) to amend the Arizona Water Settlements Act to 
modify the requirements for the statement of findings, having 
considered the same, report favorably thereon without amendment 
and recommend that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 3739 is to amend the Arizona Water 
Settlements Act to modify the requirements for the statement of 
findings in section 302(b)(5).

                  Background and Need for Legislation

    The Arizona Water Settlements Act (P.L. 108-451) resolves 
important water rights claims for the Gila River Indian 
Community (GRIC). The Act also includes in Title III the 
Southern Arizona Water Rights Settlement, which resolves 
important water rights claims for the Tohono O'odham Nation 
(Nation). The Secretary of the Interior must publish a notice 
in the Federal Register by December 31, 2007 that the 
conditions in sections 207(c) and 302(b)(5) of the Arizona 
Water Settlements Act respectively have been satisfied in order 
for the settlements to become enforceable.
    H.R. 3739 would amend the conditions set forth in section 
302(b)(5) of the Arizona Water Settlements Act by striking the 
last ten words of the section, including the phrase, ``final 
and nonappealable.'' Unless the law is amended as provided in 
H.R. 3739, the Nation believes that some may argue that the 
``final and nonappealable'' language may make it unlikely that 
the legal requirements of section 302(b)(5) can be met in time 
for the Secretary to publish required findings in the Federal 
Register before December 31, 2007.
    The ``final and nonappealable'' requirement is a potential 
obstacle to enforceability of the settlement because while 
section 305(b) of P.L. 108-451 requires an Arizona trial court 
to approve the settlement and decree, such approval is not 
final and nonappealable until it is upheld on appeal by the 
Arizona Supreme Court. On November 30, 2007, the Arizona 
Supreme Court did approve the trial court's approval of the 
Tohono O'dham Settlement and Decree. However, some may argue 
that even such approval by the Arizona State Supreme Court may 
not be considered final and nonappealable because the decision 
of the Arizona State Supreme Court can also be taken to the 
United States Supreme Court under a writ of certiorari. Removal 
of the ``final and nonappealable'' language would eliminate any 
argument that the water settlement could not be finalized 
without waiting for a ruling from the United States Supreme 
Court on petition for a writ of certiorari by an objecting 
party to the settlement.
    An objection to the Tohono O'odham settlement agreement was 
filed by the neighboring Pascua Yaqui Tribe in December, 2006. 
The Pascua Yaqui Tribe claimed that implementation of the 
Tohono O'odham settlement would adversely affect the water 
rights of the Pascua Yaqui. The Superior Court for Maricopa 
County approved the Tohono O'odham settlement and dismissed the 
Pascua Yaqui Tribe's objection on July 9, 2007.
    The Pascua Yaqui Tribe's motion to reconsider to the 
Superior Court was denied by the trial court on August 28, 
2007, and the Pasqua Yaqui Tribe and the Tohono O'odham Nation 
both filed appeals to the Arizona State Supreme Court. The 
Arizona Supreme Court ordered that filings of any legal reviews 
or appeals be completed by November 1, 2007. On November 30, 
2007, the Arizona Supreme Court issued its opinion affirming 
the trial court's approval of the Tohono O'odham judgment and 
decree. The ruling concluded that the arguments raised by the 
Pascua Yaqui ``do not depend on the settlement agreement'' and 
that nothing in the settlement leaves the Pascua Yaqui ``any 
worse off with regard to the water available to satisfy its 
claims than it is now.'' However, because Pascua Yaqui has a 
right to file for a writ of certiorari before the United States 
Supreme Court, which some may argue is a form of appeal for 
purposes of the statutory requirement of ``final and 
nonappealable'' and because the U.S. Supreme Court will not be 
able to rule on any such writ of certiorari before the 
statutory deadline for the settlement to reach enforceability 
(December 31, 2007), some may therefore argue that it is 
possible that the settlement would not attain ``final and 
nonappealable'' status until after the statutory deadline has 
passed.
    In addition, the United States District Court for the 
District of Arizona in separate litigation relating to the 
amount of reimbursable costs of the construction of the Central 
Arizona Project denied on November 20, 2007 the Pascua Yaqui's 
motion to intervene to oppose settlement of the litigation. The 
U.S. District Court also filed an order that has the effect of 
removing the linkages tying the enforceability of the three 
titles of the 2004 Arizona Water Settlements Act to each other.
    The Nation has decided to pursue H.R. 3739 as a legislative 
solution to ensure that it will meet that December 31, 2007 
deadline in the 2004 Arizona Water Settlements Act.

                            Committee Action

    H.R. 3739 was introduced on October 3, 2007 by Rep. Raul 
Grijalva (D-AZ). The bill was referred to the Committee on 
Natural Resources, and within the Committee to the Subcommittee 
on Water and Power. The Subcommittee on Water and Power held a 
hearing on H.R. 3739 on October 24, 2007. On November 15, 2007, 
the Full Natural Resources Committee met to consider the bill. 
The Subcommittee on Water and Power was discharged from further 
consideration of the bill, and H.R. 3739 was then ordered 
favorably reported by unanimous consent to the House of 
Representatives.

                      Section-by-Section Analysis


Section 1. Modification to requirements for statement of findings

    Section 1 would amend The Arizona Water Settlements Act 
(Public Law 108-451; 118 Stat. 3571) to strike the last ten 
words of section 302(b)(5). Section 302(b)(5) requires, that 
before the settlement can take effect, the legal documents that 
implement the settlement agreement must be approved by the 
State court having jurisdiction over the Gila River 
adjudication proceedings, and ``that judgment and decree have 
become final and nonappealable.'' This ``final and 
nonappealable'' language does not appear in any of the other 
titles of the Arizona Water Settlements Act and is considered 
by many to be a product of a piecemeal legislative drafting 
process.

            Committee Oversight Findings and Recommendations

    Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of 
rule XIII of the Rules of the House of Representatives, the 
Committee on Natural Resources' oversight findings and 
recommendations are reflected in the body of this report.

                   Constitutional Authority Statement

    Article I, section 8 of the Constitution of the United 
States grants Congress the authority to enact this bill.

                    Compliance With House Rule XIII

    1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the 
Rules of the House of Representatives requires an estimate and 
a comparison by the Committee of the costs which would be 
incurred in carrying out this bill. However, clause 3(d)(3)(B) 
of that Rule provides that this requirement does not apply when 
the Committee has included in its report a timely submitted 
cost estimate of the bill prepared by the Director of the 
Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974.
    2. Congressional Budget Act. As required by clause 3(c)(2) 
of rule XIII of the Rules of the House of Representatives and 
section 308(a) of the Congressional Budget Act of 1974, this 
bill does not contain any new budget authority, spending 
authority, credit authority, or an increase or decrease in 
revenues or tax expenditures.
    3. General Performance Goals and Objectives. This bill does 
not authorize funding and therefore, clause 3(c)(4) of rule 
XIII of the Rules of the House of Representatives does not 
apply.
    4. Congressional Budget Office Cost Estimate. Under clause 
3(c)(3) of rule XIII of the Rules of the House of 
Representatives and section 403 of the Congressional Budget Act 
of 1974, the Committee has received the following cost estimate 
for this bill from the Director of the Congressional Budget 
Office:

H.R. 3739--A bill to amend the Arizona Water Settlements Act to modify 
        the requirements for the statement of findings

    H.R. 3739 would amend the Arizona Water Settlements Act to 
modify requirements for a statement of findings by the 
Secretary of the Interior. The Arizona Water Settlements Act 
was enacted to settle several water disputes in the state of 
Arizona between the federal government and various state, 
tribal, and nongovernmental entities. Title III of that act 
approved the Southern Arizona Water Rights Settlement 
Amendments Act of 2004, which provided for a settlement between 
the Tohono O'odham tribe and the federal government. The 
Arizona Water Settlements Act will become effective on December 
31, 2007, pending the publication of a specific statement of 
findings by the Secretary in the Federal Register.
    CBO estimates that implementing H.R. 3739 would have no 
significant effect on the federal budget. We expect that all 
titles of the Arizona Water Settlements Act will become 
effective on December 31, 2007, and our projection of the costs 
associated with implementing those titles would not be affected 
by this bill's enactment. Enacting the bill also would not 
affect direct spending or revenues.
    H.R. 3739 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reforms Act and 
would impose no costs on state, local, or tribal governments.
    The CBO staff contact for this estimate is Tyler Kruzich. 
This estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Compliance With Public Law 104-4

    This bill contains no unfunded mandates.

                           Earmark Statement

    H.R. 3739 does not contain any congressional earmarks, 
limited tax benefits, or limited tariff benefits as defined in 
clause 9(d), 9(e) or 9(f) of rule XXI.

                Preemption of State, Local or Tribal Law

    This bill is not intended to preempt any State, local or 
tribal law.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, existing law in which no change is 
proposed is shown in roman):

            SECTION 302 OF THE ARIZONA WATER SETTLEMENTS ACT


SEC. 302. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT EFFECTIVE DATE.

  (a) * * *
  (b) Effective Date.--This title and the amendments made by 
this title take effect as of the enforceability date, which is 
the date the Secretary publishes in the Federal Register a 
statement of findings that--
          (1) * * *

           *       *       *       *       *       *       *

          (5) the judgment and decree attached to the Tohono 
        O'odham settlement agreement as exhibit 17.1 has been 
        approved by the State court having jurisdiction over 
        the Gila River adjudication [proceedings, and that 
        judgment and decree have become final and 
        nonappealable;] proceedings;

           *       *       *       *       *       *       *

  (c) Failure To Publish Statement of Findings.--If the 
Secretary does not publish a statement of findings under 
[subsection (a)] subsection (b) by December 31, 2007--
          (1) the 1982 Act shall remain in full force and 
        effect;
          (2) this title shall not take effect; and
          (3) any funds made available by the State under this 
        title that are not expended, together with any interest 
        on those funds, shall immediately revert to the State.

           *       *       *       *       *       *       *