[Senate Report 113-215]
[From the U.S. Government Publishing Office]
Calendar No. 349
113th Congress } { Report
2d Session } SENATE { 113-215
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TO AUTHORIZE THE PECHANGA BAND OF LUISENO MISSION INDIANS WATER RIGHTS
SETTLEMENT, AND FOR OTHER PURPOSES
_______
July 22, 2014.--Ordered to be printed
_______
Mr. Tester, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1219]
The Committee on Indian Affairs, to which was referred the
bill (S. 1219) to authorize the Pechanga Band of Luiseno
Mission Indians Water Rights Settlement, and for other
purposes, having considered the same, reports favorably thereon
with an amendment and recommends that the bill, as amended, do
pass.
PURPOSE
The purpose of S. 1219 is to provide for the Pechanga Bands
of Luiseno Mission Indians' (the Band) water rights, and
provide funding for infrastructure development to allow the
Band to put their water rights to actual use.
BACKGROUND
The Pechanga Indian Reservation was originally established
in 1882 by an Executive Order of President Chester A. Arthur.
The Reservation is currently comprised of 6,724 acres located
near the city of Temecula, northeast of San Diego, California.
Approximately 500 of the Band's 1,600 members reside on the
Reservation.
The Reservation lies within the Santa Margarita River
Watershed, which also affects two other Indian tribes, as well
as the Rancho California Water District and the Eastern
Municipal Water District. The Band currently uses water on the
Reservation for commercial, agricultural, domestic and
municipal purposes, and expects demand to increase in the
coming years.
Pechanga Water Rights
The settlement of the Band's water rights stems from
litigation, United States v. Fallbrook, which the United States
initiated in 1951 over water rights in the Santa Margarita
River Watershed. The Fallbrook litigation eventually expanded
to include all water users within the Santa Margarita
Watershed, including three Indian tribes--the Pechanga Band of
Luiseno Indians, the Ramona Band of Cahuilla Indians, and the
Cahuilla Band of Indians.
The United States, as trustee, represented all three Tribes
before the Fallbrook Court. At trial, the United States made a
factual presentation to the Court based on a report (prepared
by the United States in 1958) that demonstrated the United
States' formal position on the practicably irrigable acres
claim for reserved water rights for the Pechanga Reservation,
which the United States asserted was 4,994 acre-feet per year.
In a series of Interlocutory Judgments that were eventually
wrapped into the Court's Modified Final Judgment and Decree,
the Court examined and established water rights for various
water users involved in the case. In Interlocutory Judgment 41,
the Court concluded that each of the three Tribes has a
recognized federally reserved water right without specifying
the amount of each of the Tribe's water rights.
As to the Pechanga Reservation, the Court accepted the
United States' formal position of practicably irrigable acres
on the Pechanga Reservation and set the federally reserved
water right at the amount of 4,994 acre-feet per year, but only
on a ``prima facie'' basis. The ``prima facie'' nature of the
findings meant that, though they are binding until successfully
challenged, the findings were not final.
Final quantified rights were never established thereafter
for the Pechanga Band or any of the other tribes in the
Fallbrook case. As a result, all three Tribes have ``decreed,''
but ``unquantified,'' federally reserved water rights.
In 1974, the Pechanga Band filed a motion with the
Fallbrook Court to intervene as a plaintiff-intervener and a
party to the proceeding on its own behalf. In 1975 the Court
granted the Band's Motion and the Band filed a complaint to
enjoin certain defendants from using more than their respective
entitlements under the Fallbrook Decree. The Band has remained
a party to the Fallbrook proceedings ever since. The Band has
not yet filed a motion to finally quantify its federally
reserved water rights, but is now facing pressure to do so due
to the growing scarcity of water supplies in the region.
Pechanga Water Rights Settlement
Until recently, the Pechanga Band sought to avoid
litigation and instead worked with those entities around the
Band to develop mutual private agreements for sharing the
limited water resources in the Wolf Valley Basin. As a result,
in 2006, the Band and the Rancho California Water District
(RCWD) entered into a Groundwater Management Agreement, and in
2007, the Band and Eastern Municipal Water District entered
into a Recycled Water Agreement. Neither of these agreements,
however, addressed the Band's water rights in the Santa
Margarita River Watershed, or settled the Band's claims related
to the Fallbrook Decree or its claims against the United States
related to water and development of water resources.
In 2006 and continuing throughout 2007, the other two
tribes in the Santa Margarita River Watershed, the Ramona Band
of Cahuilla Indians and the Cahuilla Band of Indians sought to
intervene in the Fallbrook case to, among other things,
quantify their respective water rights to the Santa Margarita
River Watershed. These efforts forced the Pechanga Band to
become more actively engaged in the Fallbrook proceedings in
order to protect its own claims to water or risk being injured
by the actions of the other two Tribes.
In addition to participating as a litigant in the
proceedings initiated by the Ramona and Cahuilla, the Pechanga
Band began its efforts to reach a settlement of its claims to
water and claims for injuries to water rights relating to the
Santa Margarita River Watershed. On March 13, 2008, the Band
requested that the Secretary of the Interior seek settlement of
the water rights claims involving the Band, the United States,
and non-Federal third parties through the formation of a
Federal Negotiation Team under the Criteria and Procedures for
Participation of the Federal Government in Negotiations for the
Settlement of Indian Water Rights Claims. The Secretary agreed
to form a Federal Negotiation Team on August 1, 2008.
Since formation of the Federal Negotiation Team, the
Pechanga Band has been working closely with all of the parties
to negotiate the terms of the Pechanga Settlement Agreement and
to resolve its claims against the United States in connection
with the development and protection of the Band's water rights.
The Band's settlement is a broad settlement agreement with the
United States and the RCWD. The Pechanga Settlement Agreement
would be confirmed, authorized and ratified by S. 1219.
S. 1219 would provide final closure for the Band regarding
its water rights, which have been at issue since the United
States first initiated litigation over the Band's water rights
in 1951. The bill would recognize the Band's right of up to
4,994 acre feet of water per year and ratify the Pechanga
Settlement Agreement that would be entered into by the Band,
the United States, and several California state water
districts. In return for recognition of the water rights
contained in the bill, many of the Band's legal claims against
the United States would be waived or released.
In addition to the quantified water right, S. 1219 would
provide approximately $28.5 million in federal funding to
improve infrastructure to allow the Band to fully utilize its
water rights. The bill also ratifies various agreements that
have already been completed or will be completed between the
Band and the various California water districts. These
agreements detail how the Band would receive its water from the
various California water districts, particularly in instances
where there is insufficient supply for all users on the system.
SECTION-BY-SECTION ANALYSIS
Section 1--Short title; table of contents
This section sets forth the table of contents and states
this Act may be cited as the ``Pechanga Band of Luiseno Mission
Indians Water Rights Settlement Act''.
Section 2--Purposes
Section 2 states the purposes of the Act as achieving a
fair, equitable and final settlement of water rights and
certain claims in the Santa Margarita Watershed; achieving a
final settlement of claims by the Band and allottees against
the United States; approving the Pechanga Settlement Agreement
to be entered into by the Band, the Rancho California Water
District, and the United States; authorizing the Secretary of
the Interior to implement the Settlement Agreement; and
authorizing the funds necessary to implement the Settlement
Agreement and the Act.
Section 3--Definitions
Section 3 defines key terms used throughout the Act.
Section 4--Approval of the Pechanga Settlement Agreement
Section 4 authorizes, ratifies and confirms the Pechanga
Settlement Agreement and authorizes and directs the Secretary
of the Interior to carry out the terms of the Settlement
Agreement and the Act. Section 4(c) designates the Bureau of
Reclamation as the lead agency for environmental compliance
during implementation of the Settlement Agreement and the Act.
Section 5--Tribal water right
Section 5 confirms the Band's water right of up to 4,994
acre-feet per year and mandates the water right be held in
trust by the United States. Section 5 also describes the intent
of Congress to protect any water rights held by individual
allottees. Section 5 requires the Band to enact a Water Code
and defines the authority of the Band to use its water.
Section 6--Satisfaction of claims
Section 6 states that the benefits provided to the Band and
allottees under the Settlement Agreement and Act fully satisfy
the claims that are waived in Section 7 of the Act.
Section 7--Waiver of claims
Section 7 describes the claims that are waived by the Band,
allottees, and the United States. Section 7 also lists a small
number of claims that are not waived, such as enforceability of
the Settlement Agreement, and other claims not subject to the
Settlement Agreement or the Act. Finally, Section 7 nullifies
the waivers if the Act is not fully appropriated by 2030.
Section 8--Water facilities
Section 8 describes the water infrastructure that is
provided for in the Settlement Agreement, including a storage
pond to hold recycled water and infrastructure to increase
water delivery capacity both permanently and in the interim.
The Bureau of Reclamation is designated the lead agency for
these projects.
Section 9--Pechanga Settlement Fund
Section 9 directs the Secretary of the Interior to manage
and invest the Pechanga Settlement Fund, and directs how the
Fund should be distributed among several accounts, and under
what conditions funds can be withdrawn and expended.
Section 10--Miscellaneous provisions
Section 10 discusses the limited waiver of sovereign
immunity by the United States and states that nothing in the
Act affects any other Indian tribe, band or community other
than the Pechanga Band. Section 10 also states that the United
States will not submit any claim to reimburse costs of the Act
on any Indian-owned lands within the Pechanga Reservation.
Section 11--Authorization of appropriations
Section 11 authorizes a total of $28,500,027 to be
appropriated and deposited across four accounts within the
Pechanga Settlement Fund.
Section 12--Repeal on failure of enforceability date
Section 12 states that the Act will be repealed on May 1,
2021, if the Secretary does not publish a statement of findings
in the Federal Register by April 30, 2021, setting forth that:
(1) the Settlement Agreement has been approved by the United
States District Court for the Southern California District; (2)
all amounts authorized under the Act have been deposited into
the Fund; (3) all waivers have been executed; (4) the Extension
of Service Area Agreement has been approved and is effective;
and (5) the Water Delivery Agreement has been approved and is
effective.
Section 13--Antideficiency
Section 13 states that the United States will not be liable
for any failure to carry out the Act if adequate appropriations
are not provided.
LEGISLATIVE HISTORY
S. 1219 was introduced on June 25, 2013, by Senator Barbara
Boxer (D-CA) and Senator Dianne Feinstein (D-CA). The bill was
referred to the Committee on Indian Affairs. On September 10,
2013, the Committee held a legislative hearing on the bill. On
April 2, 2014, the Committee met to consider the bill. One
substitute amendment was offered, and the bill, as amended, was
adopted and ordered favorably reported to the Senate by voice
vote.
SUMMARY OF THE AMENDMENT
Senator Jon Tester (D-MT) offered an amendment in the
nature of a substitute. The amendment primarily addressed
concerns expressed by the Department of the Interior and
reflects the recent agreements made between the Pechanga Band
and the Department. While the majority of the amendments are
technical in nature, the substantive changes primarily reflect
agreement on revised waiver of claims language that is
consistent with other past tribal water settlements, changes in
the overall cost of the bill, and the treatment of individual
allottees' rights vis-a-vis the Band's water right. The
amendment decreases the amount of federal obligations to $28.5
million, which is an $11.5 million decrease from the bill as
introduced.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated May 30, 2014, was prepared
for S. 1219:
Enclosure.
S. 1219--Pechanga Band of Luiseno Mission Indians Water Rights
Settlement Act
Summary: S. 1219 would ratify the Pechanga Settlement
Agreement among the Pechanga Band of Luiseno Mission Indians in
California, the federal government, and local water districts.
The legislation also would establish the Pechanga Settlement
Fund to pay, subject to the availability of appropriated funds,
for the development and maintenance of water infrastructure for
the tribe. Pay-as-you-go procedures do not apply to this
legislation because it would not affect direct spending or
revenues.
S. 1219 contains an intergovernmental mandate as defined in
the Unfunded Mandates Reform Act (UMRA) because it would
require the tribe to enact a tribal water code. CBO estimates
that the cost of the mandate would be small and well below the
threshold established in UMRA for intergovernmental mandates
($76 million in 2014, adjusted annually for inflation).
S. 1219 contains no private-sector mandates as defined in
UMRA.
Estimated cost to the Federal Government: The estimated
budgetary effect of S. 1219 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--
-------------------------------------------------------
2015 2016 2017 2018 2019 2015-2019
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CHANGES IN SPENDING SUBJECT TO APPROPRIATION
Estimated Authorization Level........................... 33 0 0 0 0 33
Estimated Outlays....................................... 33 0 0 0 0 33
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Basis of estimate: For this estimate, CBO assumes that S.
1219 will be enacted near the end of 2014. The legislation
would ratify the Pechanga Settlement Agreement among the tribe,
the federal government, and the Rancho California and Eastern
Municipal water districts in Riverside County, California.
S. 1219 would establish and authorize the deposit of funds
into the Pechanga Settlement Fund to construct a storage pond,
build interim and permanent capacity for imported water
delivery, and pay local water district connection fees. CBO
estimates that the legislation would authorize the deposit of
about $33 million to that fund in 2015, subject to the
availability of appropriated funds.
Payments to certain tribal trust funds that are held and
managed in a fiduciary capacity by the federal government on
behalf of Indian tribes are treated as payments to a nonfederal
entity. As a result, CBO expects that the entire amount
deposited to this trust fund would be recorded as budget
authority and outlays at the time of the deposit. The Secretary
of the Interior would be required to invest the funds in
government securities until those funds are expended by the
tribe.
Pay-As-You-Go considerations: None.
Estimated impact on state, local, and tribal governments:
S. 1219 would require the tribe to enact water policies that
would govern the use of tribal water rights as detailed in the
agreement. That requirement would be an intergovernmental
mandate as defined in UMRA because it would place a statutory
requirement on the tribe that is separate from provisions of
the agreement. CBO estimates that the cost of the mandate would
be small and well below the threshold established in UMRA for
intergovernmental mandates ($76 million in 2014, adjusted
annually for inflation).
Other provisions of the bill would benefit the tribe. Any
costs to the tribe from those provisions would be incurred
voluntarily as a result of entering into the settlement
agreement.
Estimated impact on the private sector: S. 1219 contains no
private-sector mandates as defined in UMRA.
Estimate prepared by: Federal Costs: Martin von Gnechten;
Impact on State, Local, and Tribal Governments: Melissa
Merrell; Impact on the Private Sector: Marin Burnett.
Estimate approved by: Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1219 will
have a minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 1219.
CHANGES IN EXISTING LAW
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 1219 will not make any changes in existing law.