69–006 

110TH CONGRESS REPORT " ! HOUSE OF REPRESENTATIVES 2d Session 110–815 

SHOSHONE-PAIUTE TRIBES OF THE DUCK VALLEY 

RESERVATION WATER RIGHTS SETTLEMENT ACT 

JULY 31, 2008.—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. 5293] 

[Including cost estimate of the Congressional Budget Office] 

The Committee on Natural Resources, to whom was referred the 

bill (H.R. 5293) to approve the settlement of the water rights 

claims of the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior to carry out 

the settlement, and for other purposes, having considered the 

same, report favorably thereon with an amendment and recommend that the bill as amended do pass. 

The amendment is as follows: 

Strike all after the enacting clause and insert the following: 

SECTION 1. SHORT TITLE. 

This Act may be cited as the ‘‘Shoshone-Paiute Tribes of the Duck Valley Reservation Water Rights Settlement Act’’. 

SEC. 2. FINDINGS. 

Congress finds that— 

(1) it is the policy of the United States, in accordance with the trust responsibility of the United States to Indian tribes, to promote Indian self-determination 

and economic self-sufficiency and to settle Indian water rights claims without 

lengthy and costly litigation, if practicable; 

(2) quantifying rights to water and development of facilities needed to use 

tribal water supplies is essential to the development of viable Indian reservation economies and the establishment of a permanent reservation homeland; 

(3) uncertainty concerning the extent of the Shoshone-Paiute Tribes’ water 

rights has resulted in limited access to water and inadequate financial resources necessary to achieve self-determination and self-sufficiency; 

(4) in 2006, the Tribes, the State of Idaho, the affected individual water users, 

and the United States resolved all tribal claims to water rights in the Snake 

River Basin Adjudication through a consent decree entered by the District 


smartinez on PROD1PC64 with REPORTS
2 

Court of the Fifth Judicial District of the State of Idaho, requiring no further 

Federal action to quantify the Tribes’ water rights in the State of Idaho; 

(5) as of the date of enactment of this Act, proceedings to determine the extent and nature of the water rights of the Tribes in the East Fork of the 

Owyhee River in Nevada are pending before the Nevada State Engineer; 

(6) final resolution of the Tribes’ water claims in the East Fork of the Owyhee 

River adjudication will— (A) take many years; 

(B) entail great expense; 

(C) continue to limit the access of the Tribes to water, with economic and 

social consequences; 

(D) prolong uncertainty relating to the availability of water supplies; and 

(E) seriously impair long-term economic planning and development for all 

parties to the litigation; 

(7) after many years of negotiation, the Tribes, the State, and the upstream 

water users have entered into a settlement agreement to resolve permanently 

all water rights of the Tribes in the State; and 

(8) the Tribes also seek to resolve certain water-related claims for damages 

against the United States. 

SEC. 3. PURPOSES. 

The purposes of this Act are— (1) to resolve outstanding issues with respect to the East Fork of the Owyhee 

River in the State in such a manner as to provide important benefits to— (A) the United States; 

(B) the State; 

(C) the Tribes; and 

(D) the upstream water users; 

(2) to achieve a fair, equitable, and final settlement of all claims of the Tribes, 

members of the Tribes, and the United States on behalf of the Tribes and members of Tribes to the waters of the East Fork of the Owyhee River in the State; 

(3) to ratify and provide for the enforcement of the Agreement among the parties to the litigation; 

(4) to resolve the Tribes’ water-related claims for damages against the United 

States; 

(5) to require the Secretary to perform all obligations of the Secretary under 

the Agreement and this Act; and 

(6) to authorize the actions and appropriations necessary to meet the obligations of the United States under the Agreement and this Act. 

SEC. 4. DEFINITIONS. 

In this Act: 

(1) AGREEMENT.—The term ‘‘Agreement’’ means the agreement entitled the 

‘‘Agreement to Establish the Relative Water Rights of the Shoshone-Paiute 

Tribes of the Duck Valley Reservation and the Upstream Water Users, East 

Fork Owyhee River’’ and signed in counterpart between, on, or about September 

22, 2006, and January 15, 2007 (including all attachments to that Agreement). 

(2) DEVELOPMENT FUND.—The term ‘‘Development Fund’’ means the Shoshone-Paiute Tribes Water Rights Development Fund established by section 

8(b)(1). 

(3) EAST FORK OF THE OWYHEE RIVER.—The term ‘‘East Fork of the Owyhee 

River’’ means the portion of the east fork of the Owyhee River that is located 

in the State. 

(4) MAINTENANCE FUND.—The term ‘‘Maintenance Fund’’ means the Shoshone-Paiute Tribes Operation and Maintenance Fund established by section 

8(c)(1). 

(5) RESERVATION.—The term ‘‘Reservation’’ means the Duck Valley Reservation established by the Executive order dated April 16, 1877, as adjusted pursuant to the Executive order dated May 4, 1886, and Executive order numbered 

1222 and dated July 1, 1910, for use and occupation by the Western Shoshones 

and the Paddy Cap Band of Paiutes. 

(6) SECRETARY.—The term ‘‘Secretary’’ means the Secretary of the Interior. 

(7) STATE.—The term ‘‘State’’ means the State of Nevada. 

(8) TRIBAL WATER RIGHTS.—The term ‘‘tribal water rights’’ means rights of the 

Tribes described in the Agreement relating to water, including groundwater, 

storage water, and surface water. 

(9) TRIBES.—The term ‘‘Tribes’’ means the Shoshone-Paiute Tribes of the 

Duck Valley Reservation. 

(10) UPSTREAM WATER USER.—The term ‘‘upstream water user’’ means a nonFederal water user that—


smartinez on PROD1PC64 with REPORTS
3 

(A) is located upstream from the Reservation on the East Fork of the 

Owyhee River; and 

(B) is a signatory to the Agreement as a party to the East Fork of the 

Owyhee River adjudication. 

SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF AGREEMENT; AUTHORIZATION. 

(a) IN GENERAL.—Except as provided in subsection (c) and except to the extent 

that the Agreement otherwise conflicts with provisions of this Act, the Agreement 

is approved, ratified, and confirmed. 

(b) SECRETARIAL AUTHORIZATION.—The Secretary is authorized and directed to 

execute the Agreement as approved by Congress. 

(c) EXCEPTION FOR TRIBAL WATER MARKETING.—Notwithstanding any language in 

the Agreement to the contrary, nothing in this Act authorizes the Tribes to use or 

authorize others to use tribal water rights off the Reservation, other than use for 

storage at Wild Horse Reservoir for use on tribal land and for the allocation of 265 

acre feet to Upstream Water Users under the Agreement, or use on tribal land off 

the Reservation. 

(d) ENVIRONMENTAL COMPLIANCE.—Execution of the Agreement by the Secretary 

under this section shall not constitute major Federal action under the National Environmental Policy Act (42 U.S.C. 4321 et seq.). The Secretary shall carry out all 

environmental compliance required by Federal law in implementing the Agreement. 

(e) PERFORMANCE OF OBLIGATIONS.—The Secretary and any other head of a Federal agency obligated under the Agreement shall perform actions necessary to carry 

out an obligation under the Agreement in accordance with this Act. 

SEC. 6. TRIBAL WATER RIGHTS. 

(a) IN GENERAL.—Tribal water rights shall be held in trust by the United States 

for the benefit of the Tribes. 

(b) ADMINISTRATION.— (1) ENACTMENT OF WATER CODE.—Not later than 3 years after the date of enactment of this Act, the Tribes, in accordance with the provision of the Tribes’ constitution and subject to the approval of the Secretary, shall enact a water 

code to administer tribal water rights. 

(2) INTERIM ADMINISTRATION.—The Secretary shall regulate the tribal water 

rights during the period beginning on the date of enactment of this Act and ending on the date on which the Tribes enact a water code under paragraph (1). 

(c) TRIBAL WATER RIGHTS NOT SUBJECT TO LOSS.—The tribal water rights shall 

not be subject to loss by abandonment, forfeiture, or nonuse. 

SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT. 

(a) STATUS OF THE DUCK VALLEY INDIAN IRRIGATION PROJECT.—Nothing in this 

Act shall affect the status of the Duck Valley Indian Irrigation Project under Federal law. 

(b) CAPITAL COSTS NONREIMBURSABLE.—The capital costs associated with the 

Duck Valley Indian Irrigation Project as the date of enactment of this Act, including 

any capital cost incurred with funds distributed under this Act for the Duck Valley 

Indian Irrigation Project, shall be nonreimbursable. 

SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS. 

(a) DEFINITION OF FUNDS.—In this section, the term ‘‘Funds’’ means— (1) the Development Fund; and 

(2) the Maintenance Fund. 

(b) DEVELOPMENT FUND.— (1) ESTABLISHMENT.—There is established in the Treasury of the United 

States a fund to be known as the ‘‘Shoshone-Paiute Tribes Water Rights Development Fund’’. (2) USE OF FUNDS.—The Tribes shall use amounts in the Development Fund 

to rehabilitate and, if the Tribes choose, to expand the Duck Valley Indian Irrigation Project, or for any of the following purposes: 

(A) To pay or reimburse costs incurred by the Tribes in acquiring land 

and water rights. 

(B) For purposes of cultural preservation. 

(C) To restore or improve fish or wildlife habitat. 

(D) For fish or wildlife production, water resource development, or agricultural development. 

(E) For water resource planning and development. 

(F) To pay the costs of—

(i) designing and constructing water supply and sewer systems for 

tribal communities, including a water quality testing laboratory; 

(ii) other appropriate water-related projects and other related economic development projects; 


smartinez on PROD1PC64 with REPORTS
4 

(iii) the development of a water code; and 

(iv) other costs of implementing the Agreement. 

(3) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appro- priated to the Secretary for deposit in the Development Fund $9,000,000 for 

each of fiscal years 2008 through 2012. 

(c) MAINTENANCE FUND.— (1) ESTABLISHMENT.—There is established in the Treasury of the United 

States a fund to be known as the ‘‘Shoshone-Paiute Tribes Operation and Maintenance Fund’’. (2) USE OF FUNDS.—The Tribes shall use amounts in the Maintenance Fund 

to pay or provide reimbursement for— (A) operation, maintenance, and replacement costs of the Duck Valley Indian Irrigation Project and other water-related projects funded under this 

Act; or 

(B) operation, maintenance, and replacement costs of water supply and 

sewer systems for tribal communities, including the operation and maintenance costs of a water quality testing laboratory. 

(3) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to be appro- priated to the Secretary for deposit in the Maintenance Fund $3,000,000 for 

each of fiscal years 2008 through 2012. 

(d) AVAILABILITY OF AMOUNTS FROM FUND.—Amounts made available under subsections (b)(3) and (c)(3) shall be available for expenditure or withdrawal only after 

the effective date as set forth in section 9(d). 

(e) ADMINISTRATION OF FUNDS.—The Secretary, in accordance with the American 

Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et seq.) shall 

manage the Funds, including by investing amounts from the Funds in accordance 

with the Act of April 1, 1880 (25 U.S.C. 161), and the first section of the Act of June 

24, 1938 (25 U.S.C. 162a). 

(f) EXPENDITURES AND WITHDRAWAL.—

(1) TRIBAL MANAGEMENT PLAN.—

(A) IN GENERAL.—The Tribes may withdraw all or part of amounts in the 

Funds on approval by the Secretary of a tribal management plan as described in the American Indian Trust Fund Management Reform Act of 

1994 (25 U.S.C. 4001 et seq.). 

(B) REQUIREMENTS.—In addition to the requirements under the American 

Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 4001 et 

seq.), the tribal management plan shall require that the Tribes spend any 

amounts withdrawn from the Funds in accordance with the purposes described in subsection (b)(2) or (c)(2). 

(C) ENFORCEMENT.—The Secretary may take judicial or administrative 

action to enforce the provisions of any tribal management plan to ensure 

that any amounts withdrawn from the Funds under the plan are used in 

accordance with this Act and the Agreement. 

(D) LIABILITY.—If the Tribes exercise the right to withdraw amounts from 

the Funds, neither the Secretary nor the Secretary of the Treasury shall 

retain any liability for the expenditure or investment of the amounts. 

(2) EXPENDITURE PLAN.—

(A) IN GENERAL.—The Tribes shall submit to the Secretary for approval 

an expenditure plan for any portion of the amounts in the Funds that the 

Tribes do not withdraw under the tribal management plan. 

(B) DESCRIPTION.—The expenditure plan shall describe the manner in 

which, and the purposes for which, amounts of the Tribes remaining in the 

Funds will be used. 

(C) APPROVAL.—On receipt of an expenditure plan under subparagraph 

(A), the Secretary shall approve the plan if the Secretary determines that 

the plan is reasonable and consistent with this Act and the Agreement. 

(D) ANNUAL REPORT.—For each Fund, the Tribes shall submit to the Secretary an annual report that describes all expenditures from the Fund during the year covered by the report. 

(3) FUNDING AGREEMENT.—Notwithstanding any other provision of this Act, 

on receipt of a request from the Tribes, the Secretary shall include an amount 

from funds made available under this section in the funding agreement of the 

Tribes under title IV of the Indian Self-Determination and Education Assistance 

Act (25 U.S.C. 458aa et seq.), for use in accordance with subsections (b)(2) and 

(c)(2). No amount made available under this Act may be requested until the 

waivers under section 9(a) take effect. 

(g) NO PER CAPITA PAYMENTS.—No amount from the Funds (including any interest income accruing to the Funds) shall be distributed to a member of the Tribes 

on a per capita basis. 


smartinez on PROD1PC64 with REPORTS
5 

SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS. 

(a) WAIVER AND RELEASE OF CLAIMS BY TRIBES AND UNITED STATES AS TRUSTEE

FOR TRIBES.—The Tribes and the United States on behalf of the Tribes, are authorized to execute a waiver and release of—

(1) all claims for water rights in, or for waters of, the East Fork of the 

Owyhee River that the Tribes, or the United States as trustee for the Tribes, 

asserted or could have asserted in any court proceeding; and 

(2) all claims for damages, losses, or injuries to water rights in the East Fork 

Owyhee River, including claims of interference, diversion, or taking of water 

that the Tribes, or the United States as trustee for the Tribes, asserted or could 

have asserted in any court proceedings. 

(b) WAIVER AND RELEASE OF CLAIMS AGAINST THE UNITED STATES.—The Tribes 

are authorized to execute a waiver and release of—

(1) all claims against the United States, its agencies, or employees, for water 

rights in, or waters of, the East Fork of the Owyhee River that the United 

States asserted or could have asserted in any court proceeding; 

(2) all claims for damages, losses, or injuries to water rights, including claims 

of interference, diversion, or taking of water, or claims for failure to protect, acquire, or develop water or water rights within the East Fork of the Owyhee 

River, and claims for fishing rights under any Executive order to the extent that 

an injury to such a right resulted from a reduction in the quantity of water 

available in the East Fork Owyhee River; that accrued on or before the effective 

date specified in subsection (d), that the Tribes have asserted or could have asserted against the United States, its agencies, or employees in any court proceedings; and 

(3) all claims arising out of the negotiation and adoption of the Agreement. 

(c) RETENTION OF RIGHTS.—Notwithstanding the waivers and releases set forth in 

subsections (a) and (b), the Tribes and their members and the United States as 

trustee for the Tribes and their members, shall retain—

(1) all claims for enforcement of the Agreement, the Final Consent Decree, or 

this Act, through such legal and equitable remedies as may be available in any 

court of competent jurisdiction; 

(2) all rights to use and protect water rights acquired pursuant to any state 

law; 

(3) all claims relating to activities affecting the quality of water; 

(4) all rights to land outside the Reservation; and 

(5) all rights, remedies, privileges, immunities, and powers not specifically 

waived and released under the terms of the Agreement or this Act. 

(d) EFFECTIVE DATE.—Notwithstanding anything in the Agreement to the contrary, the waivers by the Tribes, or the United States on behalf of the Tribes, under 

this section shall take effect on the date on which the Secretary publishes in the 

Federal Register a statement of findings that includes a finding that—

(1) the Secretary has executed the Agreement as approved by Congress; 

(2) all parties to the Agreement have executed the Agreement; 

(3) the Fourth Judicial District Court, Elko County, Nevada has issued a 

judgment and decree consistent with the Agreement from which no further appeal can be taken; and 

(4) the amounts authorized under subsections (b)(3) and (c)(3) of section 8 

have been appropriated. 

(e) FAILURE TO PUBLISH STATEMENT OF FINDINGS.—If the Secretary does not publish a statement of findings under subsection (d) by December 31, 2015—

(1) the Agreement and this Act shall not take effect; and 

(2) any funds and interest accrued thereon that have been appropriated under 

this Act shall immediately revert to the general fund of the United States 

Treasury. 

(f) TOLLING OF CLAIMS.—

(1) IN GENERAL.—Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the 

period beginning on the date of enactment of this Act and ending on the date 

on which the amounts authorized to be appropriated under subsections (b)(3) 

and (c)(3) of section 8 are appropriated. 

(2) EFFECT OF SUBPARAGRAPH.—Nothing in this subparagraph revives any 

claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act. 

(3) FUTURE ACQUISITION OF WATER RIGHTS.—Nothing in the Agreement or this 

Act precludes the Tribes, or the United States as trustee for the Tribes, from 

acquiring a water right in a state to the same extent as any other entity in the 

state, in accordance with state law. 


smartinez on PROD1PC64 with REPORTS
6 

SEC. 10. MISCELLANEOUS. 

(a) GENERAL DISCLAIMER.—The parties to the Agreement expressly reserve all 

rights not specifically granted, recognized, or relinquished by—

(1) the settlement described in the Agreement; or 

(2) this Act. 

(b) LIMITATION OF CLAIMS AND RIGHTS.—Nothing in this Act—

(1) establishes a standard for quantifying—

(A) a Federal reserved water right; 

(B) an aboriginal claim; or 

(C) any other water right claim of an Indian tribe in a judicial or administrative proceeding; or 

(2) limits the right of a party to the Agreement to litigate any issue not resolved by the Agreement or this Act. 

(c) ADMISSION AGAINST INTEREST.—Nothing in this Act constitutes an admission 

against interest by a party in any legal proceeding. 

(d) RESERVATION.—The Reservation shall be shall be—

(1) considered to be the property of the Tribes; and 

(2) permanently held in trust by the United States for the sole use and benefit of the Tribes. 

(e) JURISDICTION.—

(1) SUBJECT MATTER JURISDICTION.—Nothing in the Agreement or this Act restricts, enlarges, or otherwise determines the subject matter jurisdiction of any 

Federal, State, or tribal court. 

(2) CIVIL OR REGULATORY JURISDICTION.—Nothing in the Agreement or this 

Act impairs or impedes the exercise of any civil or regulatory authority of the 

United States, the State, or the Tribes. 

(3) CONSENT TO JURISDICTION.—The United States consents to jurisdiction in 

a proper forum for purposes of enforcing the provisions of the Agreement. 

(4) EFFECT OF SUBSECTION.—Nothing in this subsection confers jurisdiction on 

any State court to—

(A) enforce Federal environmental laws relating to the duties of the 

United States under this Act; or 

(B) conduct judicial review of a Federal agency action. 

PURPOSE OF THE BILL

The purpose of H.R. 5293 is to approve the settlement of the 

water rights claims of the Shoshone-Paiute Tribes of the Duck Valley Reservation in Nevada, to require the Secretary of the Interior 

to carry out the settlement, and for other purposes. 

BACKGROUND AND NEED FOR LEGISLATION

The Duck Valley Reservation is the homeland of the ShoshonePaiute Tribes (Tribes). The Reservation straddles the Idaho-Nevada 

border along the East Fork of the Owyhee River, a tributary to the 

Snake River. The Reservation was established by Executive Order 

on April 16th, 1877, and expanded by Executive Orders dated May 

4, 1886 and July 1, 1910. The Reservation encompasses approximately 290,000 acres within the States of Nevada and Idaho. 

The Owyhee Project on the main stem of the Owyhee River is a 

Bureau of Reclamation Project that irrigates more than 100,000 

acres of land in eastern Oregon and western Idaho. 

The Tribes’ primary source of income is agriculture made possible by the Duck Valley Indian Irrigation Project, owned by the 

Bureau of Indian Affairs (BIA) and operated by the Tribes under 

a self-governance compact. The Project’s primary water storage facility, the Wild Horse Reservoir, was originally built in 1930 and 

rebuilt in 1960. Despite the rebuilding, inadequate maintenance 

has led to an unstable infrastructure, resulting in an increased federal liability. 

The Tribes have asserted claims to their federal reserved water 

rights in both Nevada and Idaho state courts. The State of Idaho 


smartinez on PROD1PC64 with REPORTS
7 

sought to resolve these claims by initiating the Snake River Basin 

Adjudication (SRBA) in 1987. The United States filed claims in 

Idaho’s SRBA, and the Tribe’s water rights were resolved by a consent decree entered in the Snake River Basin Adjudication on December 12, 2006 (the resolution of the Tribes’ Idaho claims does not 

require Congressional ratification). The Nevada agreement was 

reached during a stay of that state’s adjudicative process and requires Congressional action. H.R. 5293 would ratify the Nevada 

agreement. 

The State of Nevada, and water users in Nevada will provide the 

Tribes with 111,476 acre-feet of surface water from the Owyhee 

River, storage water in the Wild Horse Reservoir, all water flows 

originating from springs and creeks on the Reservation, and 2,606 

acre-feet of ground water, plus perennial yield. At the same time, 

the agreement protects the use of water by irrigators upstream 

(south) of the Reservation. 

COMMITTEE ACTION

H.R. 5293 was introduced on February 7, 2008 by Rep. Dean 

Heller (R–NV). The bill was referred to the Committee on Natural 

Resources, and within the Committee to the Subcommittee on 

Water and Power. On March 13, 2008 the Subcommittee held a 

hearing on the bill. 

On July 15, 2008, the Subcommittee met to mark up the bill. 

Ranking Member Cathy McMorris Rodgers (R–WA) offered an 

amendment in the nature of a substitute that clarified the water 

rights of upstream users. The amendment was adopted by unanimous consent and the bill, as amended, was then forwarded to the 

Full Committee. On July 16, 2008, the Full Natural Resources 

Committee met to consider the bill. H.R. 5293, as amended, was favorably reported to the House of Representatives by unanimous 

consent. 

SECTION-BY-SECTION ANALYSIS

Section 1. Short title 

Section 1 provides that this Act may be cited as the ‘‘ShoshonePaiute Tribes of the Duck Valley Reservation Water Rights Settlement Act.’’

Section 2. Findings 

Section 2 describes the findings for Congressional action and recognizes that this bill would seek to resolve tribal water-related, 

monetary claims for damages against the United States. 

Section 3. Purposes 

Section 3 states the purposes of this Act. Specifically, the Act will 

resolve outstanding water rights issues with respect to the East 

Fork of the Owyhee River and pending water-related, tribal claims 

for damages against the United States. The bill will also require 

the Secretary of the Interior perform all obligations under the 

Agreement and Act. 

Section 4. Definitions 

Section 4 provides definitions for the terms used in the bill. 


smartinez on PROD1PC64 with REPORTS
8 

Section 5. Approval, ratification, and confirmation of agreement 

Section 5 ratifies the agreement referred to in the legislation and 

known as the ‘‘Agreement to Establish the Relative Water Rights 

of the Shoshone-Paiute Tribes of the Duck Valley Reservation and 

the Upstream Water Users, East Fork Owyhee River’’. This section 

also authorizes and directs the Secretary to execute the Agreement 

as approved by Congress, including any and all environmental compliance required by federal law. 

Section 6. Tribal water rights 

Section 6 states that tribal water rights will be held in trust by 

the United States, through the Secretary of the Interior, for the 

benefit of the Tribes. The Act requires the Tribes to enact a tribal 

water code to administer tribal water rights, no later than three 

years after enactment of this bill. The Secretary will regulate the 

tribal water rights until the Tribes enact their water code. The bill 

provides that the Tribes’ water rights cannot be lost by abandonment, forfeiture, or nonuse. 

Section 7. Duck Valley Indian Irrigation Project 

Section 7 states that nothing in this Act will affect the Federal 

Duck Valley Indian Irrigation Project. This section also states that 

the federal government shall not seek reimbursement for capital 

costs incurred in support of the Project. 

Section 8. Development and Maintenance Funds 

Subsection (a) authorizes and outlines the creation of the Shoshone-Paiute Tribes Water Rights Development Fund and the Shoshone-Paiute Tribes Operation and Maintenance Fund. 

Subsection (b) states that the Shoshone-Paiute Tribes’ Water 

Rights Development Fund will be established within the Treasury 

of the United States and administered by the Secretary of the Interior. The bill authorizes the appropriation of $9 million annually in 

the Development Fund for five fiscal years for a total of $45 million. The Tribes must use funds from the 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. 

Subsection (c) provides that the Shoshone-Paiutes’ Operation and 

Maintenance Fund will be established within the Treasury of the 

United States and administered by the Secretary of the Interior. 

The bill authorizes the appropriation of $3 million annually, for 

five fiscal years, for a total of $15 million to this Fund. The tribes 

must use the Maintenance Fund to operate and maintain the Duck 

Valley Indian Irrigation Project and water-related projects authorized under the Act. Funds can also be spent to operate, maintain 

and replace the water supply and sewer systems for tribal communities. The bill, as ordered reported by the Committee, does not 

specifically allocate any funds to the rehabilitation of the Duck Valley Irrigation Project and it is unclear if the United States will be 

responsible for any future rehabilitation claims. The Committee expects this to be resolved prior to floor consideration. 


smartinez on PROD1PC64 with REPORTS
9 

Subsections (d–g) provide that under the Act, 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. The Tribes may 

withdraw all or part of the funds but must submit a tribal management plan that must be approved by the Secretary of the Interior. 

Neither the Secretary of the Interior nor the Secretary of the 

Treasury are liable for how monies withdrawn from the fund are 

spent or invested. In addition, the Tribes must submit an expenditure plan that must be approved by the Secretary for any payment 

or reimbursement of costs. The Tribes are required to submit an 

annual report to the Secretary that describes all costs. No part of 

the funds shall be distributed on a per capita basis to tribal members. 

The Committee notes that the Administration and the Tribes 

have not come into agreement on the cost of the Settlement. In testimony on the Senate companion bill, the Administration asserted 

that the federal contribution to the settlement should be $9.3 million, in contrast to the $60 million proposed in the legislation. In 

House testimony on the bill, Majel Russell, Principal Deputy Assistant Secretary of Indian Affairs for the Department of the Interior, said that the Tribes were offered almost $40 million from the 

federal negotiation team as an unofficial offer. The Administration 

argues that their internal guidance requires settlements to contain 

non-federal cost sharing ‘‘proportionate to the benefits received by 

the non-federal parties,’’ and must ‘‘specify that the total cost of a 

settlement to all parties should not exceed the value of the existing 

claims as calculated by the federal government.’’ The Tribes assert that the change in cost was due to a change 

in the interpretation and implementation of the Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims (‘‘Criteria’’). 

The Tribes also contend that the Administration’s proposed federal contribution of $9.3 million only reflects the federal liability, but 

does not include the cost of settlement implementation. H.R. 2535 

supports the Tribe’s contention that the $60 million reflects both 

the federal liability and the cost of implementing the settlement. 

Section 9. Tribal waiver of claims 

Section 9 outlines the waivers and release of claims by the Tribes 

and the United States, acting as trustee, against parties to the settlement agreement, and a waiver and release of claims by the 

Tribes against the United States as stated in the settlement agreement and other water-related claims for damages. The waiver of 

claims against the United States related to water rights in section 

9 is understood to encompass claims for damages to tribal resources due to loss of water or water rights, including damages, 

losses, or injuries to hunting, gathering, or cultural rights as well 

as the fishing rights that are explicitly waived. 

Subsection (a) states that the Tribes and the 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 


smartinez on PROD1PC64 with REPORTS
10 

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 accrued before the 

effective date specified in subsection (d). 

Subsection (c) provides for the retention of certain rights and 

claims notwithstanding the waivers set forth in Subsections 9(a) 

and 9(b). 

Subsections (d–f) provide that 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 Act shall not take effect and any appropriated funds shall be returned to the Treasury. These subsections also describe the rights retained by the Tribes and the 

United States and the process for tolling claims. 

Section 10. Miscellaneous 

Section 10 includes provisions on the limits of claims and rights 

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

specified in the Act. 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 Act. 

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. As required by 

clause 3(c)(4) of rule XIII, the general performance goal or objective 

of this bill is to approve the settlement of the water rights claims 

of the Shoshone-Paiute Tribes of the Duck Valley Reservation in 


smartinez on PROD1PC64 with REPORTS
11 

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

settlement, and for other purposes. 

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. 5293—Shoshone-Paiute Tribes of the Duck Valley Reservation 

Water Rights Settlement Act 

Summary: H.R. 5293 would ratify a water rights agreement 

among the Shoshone-Paiute Tribes of the Duck Valley Reservation, 

individual water users, and Nevada concerning the East Fork of 

the Owyhee River. The bill also would create two trust funds to 

settle the tribes’ claims against the United States for compromising 

tribal water rights and failing to maintain the Duck Valley Irrigation Project. Under the bill, amounts in the funds could not be 

spent until certain requirements have been met. 

Assuming appropriation of the authorized amounts to the funds, CBO estimates that implementing H.R. 5293 could cost $48 million 

in 2012. Enacting H.R. 5293 also would increase direct spending by 

$6 million in 2012 for interest payments to the tribe. Enacting the 

bill would not affect 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 ($68 million in 2008, adjusted annually for inflation). Furthermore, appropriations resulting from authorizations contained in the bill could be used to pay 

for any such costs. 

H.R. 5293 contains no private-sector mandates as defined in 

UMRA. 

Estimated cost to the Federal Government: The estimated budgetary impact of H.R. 5293 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— 

2009 2010 2011 2012 2013 2009– 

2013 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Authorization Level ................................................................................... 12 12 12 12 0 48 

Estimated Outlays .................................................................................... 0 0 0 48 0 48 

CHANGES IN DIRECT SPENDING 

Estimated Budget Authority ..................................................................... * 1 2 2 0 6 

Estimated Outlays .................................................................................... 0 0 0 6 0 6 

Note.—* = Less than $500,000; amounts may not sum to totals due to rounding. 

Basis of estimate: For this estimate, CBO assumes that H.R. 

5293 will be enacted near the beginning of fiscal year 2009 and 

that the entire amounts authorized will be appropriated for each 

fiscal year. In the fall of 2006, the Shoshone-Paiute Tribes of the 

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

individual water users signed an agreement to settle a water rights 


smartinez on PROD1PC64 with REPORTS
12 

dispute concerning the East Fork of the Owyhee River. Currently, 

the United States is not a party to this agreement. However, enactment of H.R. 5293 would approve and ratify the agreement and authorize the Secretary of the Interior to execute the settlement and 

other responsibilities under the bill. CBO assumes that, by fiscal 

year 2012, all parties will have executed the components of the 

agreement as specified under the bill. 

Changes in spending subject to appropriation 

H.R. 5293 would authorize the appropriation of $12 million a 

year over the 2009–2012 period, for two trust funds for the Shoshone-Paiute Tribes as part of the water rights settlement. Of that 

amount, $9 million a year would be authorized to be appropriated 

for the Shoshone Paiute Tribes Water Rights Development Fund 

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 

projects. Another $3 million a year over the same time period 

would be authorized to be appropriated for the Shoshone-Paiute 

Tribes Water Rights Operation and Maintenance Fund for similar 

activities. 

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 2009 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 three years would be considered intragovernmental and would 

have no net effect on the federal budget. 

When the conditions for final settlement have been met in 2012, 

control over the use of the trust funds would be transferred to the 

tribe and the budget would record an expenditure of $48 million in 

that year. Subsequent use of the funds would have no effect on the 

federal budget. Should the Secretary not publish a statement of 

findings by December 31, 2015, the agreement would not take effect and any funds appropriated would be returned to the general 

fund of the Treasury. 

Changes in direct spending 

The Secretary of the Interior would be required to invest the 

amounts appropriated to the trust funds until those funds are expended. CBO estimates that interest earnings over the 2009–2012 

period would total $6 million and would be recorded as a federal 

outlay in 2012. Such outlays would be direct spending. Subsequently, the funds would be considered nonbudgetary, and any future interest payments would not be considered part of the federal 

budget. Should the Secretary not publish a statement of findings 

by December 31, 2015, the agreement would not take effect, and 

any interest payments would not be made. 

Estimated impact on state, local, and tribal governments: H.R. 

5293 would require the tribes to adopt water policies that would 

govern tribal water rights as detailed in the agreement. That reVerDate Aug 31 2005 04:21 Aug 05, 2008 Jkt 069006 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\HR815.XXX HR815

smartinez on PROD1PC64 with REPORTS
13 

quirement would be an intergovermental mandate as defined in 

UMRA because it would place a statutary 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 ($68 million in 2008, 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: H.R. 5293 contains no 

private-sector mandates as defined in UMRA. 

Previous CBO estimate: On August 8, 2007, CBO trasmitted a 

cost estimate for S. 462, the Shoshone-Paiute Tribes of the Duck 

Valley Reservation Water Rights Settlement Act, as ordered reported by the Senate Committee on Indian Affairs on July 19, 

2007. Although the bills are very similar, our estimates of costs are 

different. Our estimate of discretionary spending under H.R. 5293 

is lower because we now assume a later enactment date for the legislation. Also, CBO now considers that tribal interest payments 

under both pieces of legislation would increase direct spending 

rather than discretionary spending (as we estimated under S. 462). 

Those interest payments under H.R. 5293 would increase direct 

spending by $6 million. That estimate applies to S. 462 as well. 

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

State, Local, and Tribal Governments: Melissa Merrell; and Impact 

on the Private Sector: Amy Petz. 

Estimate 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. 5293 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

If enacted, this bill would make no changes in existing law. 

Æ 


smartinez on PROD1PC64 with REPORTS