69–010 

1 April 16, 1877, Executive Order, Pres. Hayes (securing lands for the Western Shoshone peoples); May 4, 1886, Executive Order, Pres. Cleveland (securing lands for the Paddy Cap Band 

of Paiutes); July 1, 1910, Executive Order, Pres. Taft (securing lands for water needs by Shoshone and Paiutes living on the Duck Valley Reservation). 

Calendar No. 872 

110TH CONGRESS REPORT " ! SENATE 2d Session 110–415 

A BILL TO APPROVE THE SETTLEMENT OF THE WATER RIGHTS CLAIMS OF 

THE SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY INDIAN RESERVATION IN NEVADA, TO REQUIRE THE SECRETARY OF THE INTERIOR 

TO CARRY OUT THE SETTLEMENT, AND FOR OTHER PURPOSES 

JULY 10 (legislative day, JULY 9), 2008.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

[To accompany S. 462] 

The Committee on Indian Affairs, to which was referred the bill 

(S. 462) to approve the settlement of the water rights claims of the 

Shoshone-Paiute Tribes of the Duck Valley Indian Reservation in 

Nevada, to require the Secretary of the Interior to carry out the 

settlement, and for other purposes, having considered the same, reports favorably thereon with an amendment in the nature of a substitute and recommends that the bill as amended do pass. 

PURPOSE

The purpose of S. 462, as amended, is to approve the settlement 

of the water rights claims of the Shoshone-Paiute Tribes of the 

Duck Valley Reservation. 

BACKGROUND

Between 1877 and 1910, three presidents established reservation 

lands in Idaho and Nevada for the Western Shoshone and Paiute 

peoples.1 The Executive Orders form a reservation that encompasses approximately 290,000 acres located nearly equally within 

both states. With the exception of one small parcel, the United 

States holds the entire reservation in trust for the Shoshone-Paiute 

Tribes. There are no allotments. 

There are three primary sources of water on the reservation: 


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2Survey of Conditions of the Indians in the United States Before a Subcommittee of the Committee on Indian Affairs, 72nd Cong., 1st Sess., Part 28, Nevada 14807–15189 (1934). 3Survey, p. 14933. 4Survey, pp. 14895–15035. Pursued for decades and first authorized in 1924, the Bureau of 

Reclamation’s Owyhee Project is a comprehensive dam, canal, and pumping system in the 

Owyhee and Snake River Basins to irrigate lands in eastern Idaho and western Oregon. See 

Eric Stene, The Owyhee Project, Bureau of Reclamation History Program, Denver, CO (1996), 

http://www.usbr.gov/dataweb/projects/oregon/Owyhee/history.html. 5 Both the States of Nevada and Idaho recognized water rights under the doctrine of prior appropriation, commonly understood as the ‘‘first in time’’ to appropriate water for beneficial use 

established the ‘‘first right’’ to protect that use against other appropriators. See James Dav-

(1) The East Fork of the Owyhee River, which flows primarily through the State of Nevada; 

(2) Blue Creek, a tributary to the Owyhee River that flows 

through the reservation until it meets the Owyhee on the 

Idaho side of the reservation; and 

(3) Mary’s Creek, located in the northeastern part of the reservation, flowing northeasterly through the Reservation into 

Idaho. 

The Tribes have used these waters for agriculture, livestock, fishing and domestic purposes. Since 1862, regular reports from Indian 

Affairs Commissioners and later agents of the Bureau of Indian Affairs record the agricultural and livestock activities of Shoshone 

and Paiute Indians living in the Duck Valley area of the Owyhee 

River and on the reservation. According to a ‘‘Survey of Conditions 

of the Indians in the United States,’’ a 1932 field hearing of the 

U.S. Senate Committee on Indian Affairs focused on the agriculture 

and grazing activities and water needs on the Duck Valley Reservation.2 While irrigation ditches and modest dams had been used 

with some success in taming the Owyhee River’s spring flows, the 

need for water storage was cited as early as 1889.3 The hearing 

record provides a detailed accounting of the Tribe’s historic use of 

water and demand for in-stream, ground, and storage rights along 

the East Fork of the Owyhee River; the Tribes’ and the Department of the Interior’s efforts to secure water rights for the Tribe 

and develop the Duck Valley Indian Irrigation Project; and the Bureau of Reclamation’s interests in protecting water to support the 

Owyhee Project in Oregon.4

Until recently, none of the Tribes’ water rights from the three 

primary water sources were quantified, despite the Tribes’ consistent water use. The Shoshones and Paiutes residing on the reservation have been irrigators since the 1860s. Since the 1880s, Interior officials conducted a survey of water storage needs, secured 

additional lands for a storage reservoir, and conducted studies on 

the impacts of an Indian irrigation project on the downriver 

Owyhee Project. In the 1930s, the federal government authorized 

and implemented the Duck Valley Indian Irrigation Project to provide water storage along the East Fork of the Owyhee River for irrigation and stock water purposes on the Duck Valley Reservation. 

The Wild Horse Reservoir, located south and upstream of the reservation, is the storage reservoir of the Duck Valley Indian Irrigation Project. Originally built in 1937, the reservoir was reconstructed in 1970. 

Although the Shoshone-Paiute Tribes’ water rights had not been 

quantified, individuals along the Owyhee River, Blue Creek, and 

Mary’s Creek secured surface and ground water rights under the 

prior appropriation doctrine or through state permits.5 As early as 


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enport, Nevada Water Law (Colorado River Commission of Nevada, 2003). As early as 1905 in 

Nevada and 1903 in Idaho, the states began regulating water rights by issuing permits. 6 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908). 

7Survey, pp. 14938–14940. 8 Ibid. 

9The Snake River Basin Adjudication is a ‘‘statutorily-created lawsuit to inventory all surface 

and ground water rights in the Snake River system,’’ with its records and background available 

at http://www.srba.state.id.us. 

10 In re Snake River Basin Adjudication, Case No. 39576, Subcases 51–02002, et al.; 51–12756, 

et al.; and 51–12604, et al. (Fifth Dist. Idaho 2006). 11 East Owyhee River Adjudication, Nevada Division of Water Resources, State Engineer 

(1924, pending). 

1924, the Department of the Interior’s Office of Indian Affairs and 

Bureau of Reclamation and the Department of Justice conducted 

inter-agency deliberations on whether to pursue a water rights adjudication on behalf of the Tribes based on the United States Supreme Court’s decision in Winters v. United States.6 According to 

the Office of Indian Affairs, upstream users and other individuals 

were interfering with the Tribes’ traditional agricultural and stock 

uses.7 In 1931, the Department of Justice prepared a draft bill of 

complaint at the insistence of the Office of Indian Affairs, but the 

Bureau of Reclamation requested that the adjudication be withheld 

for further study of the impacts an Indian project would have on 

the downstream Owyhee Project.8 The complaint was not filed, and 

the Owyhee and the Duck Valley Indian Irrigation Projects were 

completed in the 1930s without the Tribes’ or individual water 

rights being adjudicated. 

Efforts were reinitiated in the late 1980s to quantify the water 

rights of various users of the three sources of water on the Reservation through actions before the Idaho state court and the Nevada Division of Water Resources. 

Multi-State adjudications to quantify tribal water rights and other 

claims 

In 1998, the United States, as trustee for the Tribes, filed a 

claim in an Idaho state court, as part of the Snake River Basin Adjudication, for a water right in the Blue Creek and St. Mary’s 

Creek.9 The Tribes, on their own behalf, later intervened in the 

claim. In 2006, the State of Idaho’s Fifth District Court entered a 

final decree that approved a consent decree and partial final decrees agreed to by the United States, the Tribes, the State of Idaho, 

and two individual water rights holders.10 The decrees quantified 

the parties’ disputed water rights, including federal reserved water 

rights for the Tribes. No further federal action was necessary with 

respect to this adjudication. 

The Snake River Basin Adjudication did not address the Tribes’ claims against the United States for monetary damages. 

In 1989, the Nevada State Engineer reinitiated proceedings to 

determine all water rights to the use of surface and ground water 

along the East Fork of the Owyhee River.11 The water rights holders, with rights upstream from the Duck Valley reservation, 

claimed rights under Nevada’s law of prior appropriation or stateissued permits to instream water rights to the Owyhee River. The 

Tribes claimed surface rights to the River, having an 1877 priority 

date, and water storage rights in Nevada. 

In the late 1990s, the parties, including the United States as 

trustee for the Tribes, initiated negotiations to settle the adjudication by agreement, and the State Engineer and Nevada court 


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12 Criteria and Procedures for the Participation of the Federal Government in Negotiations for 

the Settlement of Indian Water Rights Claim, 55 Fed. Reg. 9223–01, 1990 WL 325541 (1990). 13For example, the Department’s Criteria and Procedures were applied during the water 

rights negotiation and settlement between the United States, State of Idaho, and the Nez Perce 

Tribe. The final agreement and law did not include a federal, cost-share. Pub. L. 108–447, 118 

Stat. 2809, 3431. 14The Department failed to acknowledge the State of Nevada’s nearly $1 million combined 

monetary and non-monetary contribution towards implementing the settlement agreement. The 

Committee acknowledges the State’s contribution to quantify the upstream water rights’ holders 

and administer aspects of the agreement. The State’s contribution is appropriate compared to 

the significant federal obligation to the Tribes and the few upstream rights holders who benefit 

from the Duck Valley Indian Irrigation Project. 

stayed the adjudication for purposes of settlement rather than continue with administrative and judicial proceedings. For more than 

ten years, the parties and the United States worked towards a settlement agreement. After years of participation and leadership in 

negotiating an agreement and after making significant progress in 

drafting a settlement agreement, the United States withdrew from 

the settlement negotiations. 

In 2005, the Tribes, the State, and the upstream users reached 

and executed an agreement. The United States did not sign the 

agreement. According to testimony provided to the Committee by 

W. Patrick Ragsdale, Director of the Bureau of Indian Affairs at 

the Department of the Interior, the Department disagrees with 

some provisions of the agreement. According to Mr. Ragsdale, neither the final settlement amount nor the State of Nevada’s costshare are sufficient to meet the Department’s Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims.12 The Committee notes, however, that the Department has supported a water 

rights settlement where, after applying the Criteria and Procedures, no state contribution was required.13

The settlement agreement addresses the claims pending in the 

adjudication. The agreement quantifies the Tribes’ surface and 

groundwater rights, and provides that the Tribe will administer 

these rights under a tribal water code. The agreement provides 

that the Nevada State Engineer will quantify the upstream water 

users’ rights, which will include domestic and stock water uses, and 

administer these rights. The parties agreed to an implementation 

plan to coordinate the administration of water rights, particularly 

during a time of water shortage. Under the agreement, the State 

is required to provide gauging, a recording station, and a water 

commissioner to implement and administer the settlement, at an 

estimated cost of nearly $1 million.14

Tribal claims against the United States 

While the Snake River Basin Adjudication did not address the 

Tribes’ claims against the federal government, the Tribes sought to 

resolve their claims against the United States in the Nevada adjudication and through federal legislation. 

The Tribes’ claimed the United States had compromised the 

Tribes’ water rights, failed to maintain and complete the Duck Valley Indian Irrigation Project, and destroyed tribal resources, including the Tribes’ historic salmon runs. According to the appointed 

Federal Negotiation Team, the United States bore some responsibility for the Tribes’ loss of on-reservation fishing and reduced the 

reservation’s irrigable acreage by locating the Wild Horse Reservoir 


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15 miles upstream from the reservation and for failing to maintain 

and complete the Duck Valley Indian Irrigation Project. 

During the settlement negotiations with the State and upstream 

water users, the Tribes and the United States discussed the 

amount of the federal liability to the Tribes for failing to observe 

its trust responsibilities and obligations. According to testimony offered at the Committee’s April 2007 hearing, the parties had made 

progress towards a settlement amount to compensate the Tribes for 

their estimated historic losses and anticipated programmatic expenses, such as developing the tribal water code. The Tribes initially calculated the federal liability at more than $100 million. 

During the settlement negotiations, the federal water negotiating 

team suggested the claims could be settled for more than $40 million. Mr. Ragsdale, however, testified that the United States Office 

of Management and Budget calculated the final federal burden at 

less than $10 million—$30 million less than the United States had 

indicated before the negotiating team withdrew from the settlement talks. The parties were unable to continue settlement negotiations given the United States’ final determination of its liability. 

As represented by U.S. Senator Harry Reid in his testimony before this Committee, U.S. Senators Ensign, Craig and Crapo joined 

him in drafting a bill to authorize a $60 million settlement amount. 

This amount represents less than the Tribes’ historic losses and estimated future expenditures and yet is greater than the federal 

government’s final estimated obligations and potential liability. 

The bill would ratify the settlement agreement signed by the parties, make the United States a party to the agreement, and resolve 

the Tribes’ breach of trust and other claims for monetary damages 

against the United States. 

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

At its July 19, 2007 business meeting, the Committee adopted an 

amendment in the nature of a substitute to S. 462. Like the original bill, the amendment in the nature of a substitute federally approves, ratifies, and confirms a settlement agreement reached by 

parties to the East Fork of the Owyhee River adjudication pending 

before the Nevada Division of Water Resources and resolves the 

Tribes’ claims for money damages against the United States. 

At the Committee’s April 26, 2007 hearing, the Department of 

the Interior expressed concerns with S. 462 as introduced. In response, the bill’s sponsors, the Tribes, the States of Nevada and 

Idaho, the upstream water users, and the Department addressed 

these concerns by adding Section 7, describing the Duck Valley Indian Irrigation Project, and making significant changes to renumbered Section 8, the Development and Maintenance Funds, and 

Section 9, the Waivers and Release of Claims. The amendment also 

includes a number of minor and technical changes to clarify the Act 

and the intentions of its sponsors. While the substitute amendment 

addresses many of the Department’s concerns, the Department continues to oppose the bill as amended. 

LEGISLATIVE BACKGROUND

S. 462 was introduced on January 31, 2007, by Senator Harry 

Reid, for himself and Senator John Ensign, and was referred to the 

Committee on Indian Affairs. On April 26, 2007, the Committee 


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held a hearing on S. 462. At an open business meeting on July 17, 

2007, the Committee approved S. 462, with an amendment in the 

nature of a substitute. Senators Craig and Crapo became co-sponsors of the bill on July 19, 2007. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

At an open business meeting held July 19, 2007, the Committee 

on Indian Affairs, by a voice vote, adopted S. 462, with an amendment in the nature of a substitute and ordered the bill favorably 

reported to the Senate, with the recommendation that the Senate 

do pass S. 462 as reported. 

SECTION-BY-SECTION ANALYSIS OF S. 462, AS AMENDED

Section 1. Title 

This section provides the title of the Act, which is the ShoshonePaiute Tribes of the Duck Valley Reservation Water Rights Settlement Act. 

Section 2. Findings 

Section 2 describes the basis for Congressional action. The 

Tribes, the State of Nevada, and the upstream individual water 

users have agreed to end more than a decade of state-law adjudication of water rights of all interested parties along the East Fork of 

the Owyhee River, Nevada. This bill supports federal policy to settle Indian water rights claims without lengthy and costly litigation 

and bring certainty to the water rights of tribes. This bill would 

also seek to settle tribal water-related claims for monetary damages against the United States. 

Section 3. Purposes 

This section states that the bill will resolve outstanding issues 

related to the East Fork of the Owyhee River and will ratify the 

agreement reached by all parties to the East Fork Owyhee River 

adjudication and the United States. The Act will also resolve pending water-related Tribal claims for damages against the United 

States, and require that the Secretary of the Interior perform all 

obligations of the Secretary under the Agreement and this Act. 

Section 4. Definitions 

This section defines important terms used in the Act. 

Section 5. Approval, ratification, and confirmation of agreement 

This section ratifies the entire agreement, with an exception, and 

authorizes the Secretary of the Interior to perform the obligations 

ordered in the Act; these obligations include environmental compliance required by federal law. 

While the Tribes may store water at Wild Horse Reservoir and 

use tribal water rights on tribal land off the reservation, the section states that the bill does not approve, ratify or confirm provisions in the Settlement Agreement that would appear to allow the 

Tribes to otherwise market tribal water rights off the Reservation. 


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Section 6. Tribal water rights 

This section states that the Secretary of the Interior shall hold 

the Tribes’ water rights in trust and that water rights cannot be 

lost by abandonment, forfeiture, or nonuse. The bill, like the Settlement Agreement, requires the Tribes to enact a tribal water code 

to administer tribal water rights. This action constitutes an intergovernmental mandate under the Unfunded Mandates Reform Act 

(UMRA), though the cost to implement the provision is well below 

the UMRA’s threshold. 

Section 7. Duck Valley Indian Irrigation Project 

This section affirms the current status of the federal Duck Valley 

Indian Irrigation Project and states that the federal government 

shall not seek reimbursement for capital costs incurred in support 

of the Project. 

Section 8. Development and maintenance funds 

This section authorizes the creation of two funds: a Development 

Fund and a Maintenance Fund. The funds shall be held by the 

Treasury Department and administered by the Secretary of the Interior. 

This section also authorizes Congress to appropriate $9 million 

annually, for five fiscal years, for the Development Fund. The 

Tribes must use funds from the $45 million Development Fund for 

water resource planning and development; for projects related to 

rehabilitating or expanding the Duck Valley Irrigation Project, 

such as for water resource development and agricultural development; for cultural preservation; for restoring or improving fish or 

wildlife habitat; and for designing and constructing water supply 

and sewer systems for tribal communities. Section 8 authorizes Congress to appropriate $3 million annually, 

for five fiscal years, for the Maintenance Fund. The Tribes must 

use funds from the $15 million Maintenance Fund to operate and 

maintain the Duck Valley Indian Irrigation Project and water-related projects authorized under the bill or to operate, maintain and 

replace the water supply and sewer systems for tribal communities. 

The Secretary of the Interior is required to manage and invest 

both funds according to the American Indian Trust Fund Management Reform Act of 1994. Upon reaching the effective date for the 

bill, the Secretary must make the funds available to the Tribes. 

Under the bill, the Tribes can access the funds in two ways: By 

submitting a tribal management plan or an expenditure plan. The 

bill states the criteria for spending, reporting, and enforcement of 

both plans. Further, if requested by the Tribes, the Secretary is required to include funds in any funding agreements of the Tribes 

pursuant to the Indian Self-Determination Act for approved fund 

uses. Neither the Secretaries of Interior or Treasury retain liability 

for the expenditure or investment of amounts distributed to the 

Tribes. 

The bill prohibits the payment of per capita payments to individual Indians from either fund. 

Section 9. Tribal waiver of claims 

This section includes a waiver and release of claims by the Tribes 

and the United States, acting as trustee, against parties to the setVerDate Aug 31 2005 03:37 Jul 15, 2008 Jkt 069010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR415.XXX SR415

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tlement agreement, and a waiver and release of claims by the 

Tribes against the United States as stated in the settlement agreement and as described during the extensive federal water negotiations. 

Subsection (a) states that the Tribes and United States, as trustee, waive all claims to water rights in and damages, losses or injuries to water in the East Fork of the Owyhee River that were or 

could be asserted in court proceedings. 

Subsection (b) describes the Tribes’ waiver and release of claims 

against the United States. The Tribes’ waiver would release any 

claims against the United States for a water right or injury to a 

water right in the East Fork of the Owyhee River, for multiple 

breach of trust claims, and for fishing rights that resulted from reduced quantity of water in the East Fork and claims accrued before 

the effective date of the section. 

The waivers and release of claims become effective when the Secretary of the Interior publishes a statement of findings in the Federal Register. Should the Secretary fail to publish a statement of 

findings by December 31, 2015, the settlement agreement and the 

bill shall not take effect and any appropriated funds shall be returned to the Treasury. 

This section also describes the rights retained by the Tribes and 

the United States and the process for tolling claims. 

Section 10. Miscellaneous 

This section includes provisions on the limits of claims and rights 

not waived in the agreement, the bill, or other ongoing matters 

specified in the bill. The section also confirms the status quo of 

tribal, state, and federal subject matter jurisdiction and regulatory 

authority. The section waives the United States’ immunity from 

suit to enforce the agreement and limits State review of federal actions authorized under the bill. 

COST AND BUDGETARY CONSIDERATIONS

The cost estimate for S. 462, as prepared by the Congressional 

Budget Office, is set forth below. 

The legislation authorizes two settlement funds to be funded at 

a total of $12 million annually, for 5 consecutive years. Because the 

annually appropriated funds will be held in an account with the 

Secretary of the Interior, the Congressional Budget Office interprets the bill as authorizing Congress, in the final appropriations 

year, to appropriate interest-earned on the appropriated amounts 

held by the Secretary. The CBO estimates that Congress is authorized to appropriate an estimated $9 million in interest that the 

funds would have earned over five years. 

S. 462—Shoshone-Paiute Tribes of the Duck Valley Reservation 

Water Rights Settlement Act 

Summary: S. 462 would create two trust funds as part of a potential settlement to a water rights dispute between the ShoshonePaiute Tribes of the Duck Valley Indian Reservation, the state of 

Nevada, and the federal government. Assuming appropriation of 

the necessary amounts, CBO estimates that implementing S. 462 

could cost $69 million over the 2008–2012 period if the United 

States agrees to the settlement. However, the United States is not 


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currently a party to the settlement agreement reached by other 

parties involved in the dispute regarding Nevada’s East Fork of the 

Owyhee River. If the federal government does not agree to the settlement, S. 462 would have no effect on the federal budget. Enacting S. 462 would not affect direct spending or revenues. 

The bill would require the Shoshone-Paiute Tribes of the Duck 

Valley Indian Reservation to adopt policies governing tribal water 

rights. That requirement would be an intergovernmental mandate 

as defined in the Unfunded Mandates Reform Act (UMRA). CBO 

estimates that the cost of the mandate would be small and well 

below the threshold established in UMRA ($66 million in 2007, adjusted annually for inflation). Furthermore, appropriations resulting from authorizations contained in the bill could be used to pay 

for any such costs. 

S. 462 contains no private-sector mandates as defined in UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 462 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— 

2008 2009 2010 2011 2012 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Appropriations for Deposits to Trust Funds: 

Estimated Authorization Level ....................................................................... 13 13 14 14 15 

Estimated Outlays .......................................................................................... 13 13 14 14 15 

Receipts and Spending of Trust Funds: 

Estimated Authorization Level ....................................................................... ¥13 ¥13 ¥14 ¥14 54 

Estimated Outlays .......................................................................................... ¥13 ¥13 ¥14 ¥14 54 

Total Changes: 

Estimated Authorization Level ....................................................................... 0 0 0 0 69 

Estimated Outlays .......................................................................................... 0 0 0 0 69 

Basis of estimate: For this estimate, CBO assumes that S. 462 

will be enacted near the end of fiscal year 2007 and that the entire 

amounts estimated to be necessary will be appropriated for each 

fiscal year. Potential costs, however, hinge upon the agreement 

reached in the fall of 2006 by the Shoshone-Paiute Tribes of the 

Duck Valley Indian Reservation, the state of Nevada, and several 

individual water users over a water rights dispute relating to the 

Duck Valley Irrigation Project. Currently, the United States is not 

a party to this agreement. For this estimate, CBO assumes that 

the United States will agree to the settlement and that S. 462 

would codify this potential agreement. Accordingly, CBO assumes 

that, by fiscal year 2012, all parties will have executed the components of the agreement as specified under the bill. 

Shoshone-Paiute Tribes Water Rights Development and Maintenance Funds 

S. 462 would create two trust funds for the Shoshone-Paiute 

Tribes as part of the water rights settlement. The bill would authorize the appropriation of $9 million a year, plus interest earnings on the unspent balance of the fund, over the 2008–2012 period 

for the Shoshone-Paiute Tribes Water Rights Development Fund to 

pay for costs to rehabilitate the Duck Valley Irrigation Project; acquire land and water rights; restore fish and wildlife habitat; develop water laws; and build sewer systems and other water-related 


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projects. Over the same period, the bill also would authorize the 

appropriation of $3 million a year, plus interest earned on unexpended balances, for the Shoshone-Paiute Tribes Water Rights Operation and Maintenance Fund for similar activities. 

In total, CBO estimates that S. 462 would authorize the appro- priation of $69 million to the new funds. Several conditions would 

have to be met to transfer control of the new trust funds to the 

tribes. The Secretary of the Interior would have to publish a statement of findings in the Federal Register indicating that all parties 

have executed the agreement, the Fourth Judicial District in Nevada would have to issue a judgment and final decree concerning 

the settlement, and the amounts authorized under the bill for fiscal 

years 2008 through 2012 would have to be appropriated. Because 

those conditions would not be met until the appropriations are 

made for 2012, deposits in the funds during the first four years 

would be considered intragovernmental and would have no net effect on the federal budget. When the conditions for final settlement 

have been met, control over the use of the trust funds would be 

transferred to the tribe and the budget would record an expenditure of an estimated $69 million in 2012. However, if the United 

States does not become a party to the agreement, control over the 

use of the trust funds would not be transferred and the bill would 

have no cost in 2012 (even if the authorized amounts were appropriated each year). 

Beginning in 2012, the tribes would be able to withdraw all or 

part of the amounts in the funds upon the approval by the Secretary of the Interior. For any portion of amounts that are not 

withdrawn, the tribes would be required to submit to the Secretary 

an expenditure plan and subsequently would file an annual report 

describing their spending activities. 

Estimated impact on state, local, and tribal governments: S. 462 

would require the tribes to adopt water policies that would govern 

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 tribes 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 ($66 million in 2007, adjusted annually for 

inflation). Furthermore, appropriations resulting from authorizations for the development fund could be used to pay for any such 

costs. 

Estimated impact on the private sector: S. 462 contains no private-sector mandates as defined in UMRA. 

Estimate prepared by: Federal Costs: Leigh Angres; Impact on 

State, Local, and Tribal Governments: Leo Lex; Impact on the Private Sector: Amy Petz. 

Estimate approved by: Jeffrey Holland, Chief, Projections Unit, 

Budget Analysis Division. 

PREEMPTION STATEMENT

Section 5(c) of the amendment in the nature of a substitute to 

S. 462 preempts Nevada law with respect to water marketing. The 

State of Nevada, State of Idaho, the Tribes and the other affected 

water rights holders in the Nevada adjudication support this provision. 


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15 Hearing on S. 462, Shoshone-Paiute Tribes of Duck Valley Water Rights Settlement Act Before the Senate Comm. on Indian Affairs, 110th Cong. (2007), S. Hrg. 110–105 (testimony of W. 

Patrick Ragsdale, Director, Bureau of Indian Affairs). 

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 implementing 

this legislation. The Committee has concluded that enactment of S. 

462 will create only de minimis regulatory or paperwork burdens. 

EXECUTIVE COMMUNICATIONS

The Committee has not received an official communication from 

the Administration on the provisions of the bill as amended. The 

Department of the Interior provided testimony to the Committee, 

which is in the hearing record.15

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee states that the enactment of 

S. 462 will result in no changes in existing law. 

Æ 


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