89–010

106TH CONGRESS REPORT

2d Session " ! SENATE 106–513

AMENDING THE COLORADO UTE INDIAN WATER RIGHTS SETTLEMENT

ACT OF 1988 TO PROVIDE FOR A FINAL SETTLEMENT OF THE CLAIMS OF

THE COLORADO UTE INDIAN TRIBES, AND FOR OTHER PURPOSES

DECEMBER 15 (legislative day, SEPTEMBER 22), 2000.—Ordered to be printed

Mr. CAMPBELL, from the Committee on Indian Affairs,

submitted the following

REPORT

[To accompany S. 2508]

The Committee on Indian Affairs to which was referred the bill

(S. 2508) amending the Colorado Ute Indian Water Rights Settlement Act of 1988 to provide for a final settlement of the claims of

the Colorado Ute Indian Tribes, and for other purposes, having

considered the same, reports favorably thereon without amendment

and recommends that the bill do pass.

PURPOSE

The purpose of S. 2508 is to make amendments to the Colorado

Ute Indian Water Rights Settlement Act, P.L. 100–585, to fulfill

the Federal government’s obligation to the Southern Ute and Ute

Mountain Ute Indian tribes in the manner contemplated by the recently completed Animas La Plata Project Final Supplemental Impact Statement, July, 2000 and the Department of Interior’s Record

of Decision, September 25, 2000.

BACKGROUND

Through successive 19th century treaties, the Federal government guaranteed a permanent tribal homeland for the Ute Indians.

By the 1880’s, the various bands of the Ute Indians had been settled on three reservations, one in Utah and two in Colorado. In the

mid-1970’s, the Federal government filed as a reserved water right

claim on behalf of the Ute Mountain Ute and Southern Ute Indian

Tribes of Colorado (Ute tribes). The principle of reserved water

rights was first articulated in the Supreme Court’s decision in Winters v. United States, 207 U.S. 564 (1908). These ‘‘Winters’’ rights

have the same priority as the date the reservation is established.

Because a number of significant rivers and streams run through
2

the Southern Ute and Ute Mountain Ute Indian reservations, such

rights would be senior to a large number of existing water rights.

The prospect of such senior rights would threaten existing water

uses in three ways. First, even as inchoate and unquantified claims

they would place a cloud on all water rights established since at

least as far back as the 1868 Ute Treaty. Second, as the tribal reserved rights claims are being adjudicated they would cloud other

water rights. Finally, the quantified water rights would threaten

existing rights and uses, even if the Ute tribes were unable or unwilling to begin using the water associated with their reserved

water rights. The economic impact and social dislocation associated

with this reallocation prompted all of the interested parties to try

to reach a negotiated settlement of the tribal water rights claims.

In 1988, through the Colorado Ute Indian Water Rights Settlement Act, P.L. 100–585 (Settlement Act), Congress ratified the Colorado Ute Indian Water Rights Settlement Agreement of December

10, 1986 (Settlement Agreement). Under the terms of the Settlement Act, the Ute tribes were guaranteed a water supply to satisfy

the tribe’s municipal, industrial, and agricultural water needs. Like

a number of other Indian water rights settlements, the parties relied on newly developed water supplies to satisfy tribal water

rights claims. Such undeveloped water is available from the facilities authorized by the Colorado River Basin Project Act of 1968

(P.L. 90–537), which authorized the Animas-La Plata Project (ALP

or Project) as a participating project under the Colorado River Storage Act of 1956, Act of April 11, 1956, 70 Stat. 105.

Under the terms of the Settlement Agreement, the United States

must supply specified quantities of water to each of the Ute tribes

at the specified locations. If water is not supplied by January 1,

2000, the Ute tribes may elect to return to court and litigate their

reserved water right claims. This right to return to court lapses on

January 1, 2005. Each of the parties have different reasons for supporting a deadline. A deadline ensures that the Ute tribes will not

wait indefinitely for the completion of the Project. It also ensures

that existing water users can look forward to the elimination of

senior tribal reserved water rights claims.

Construction of the ALP, however, has been delayed by a number

of factors, mostly related to Federal environmental laws. The

Animas River is a part of the San Juan River watershed, which is

a tributary of the Colorado River. Although the proposed project

would divert water from the Animas River, concerns were expressed about the effect of these diversions on the San Juan River.

Pursuant to the Endangered Species Act, 16 U.S.C. 1531 et seq.

(ESA), in 1990, the U.S. Fish and Wildlife Service (Service) issued

a draft Biological Opinion indicating that under certain circumstances, diversion from the San Juan watershed might jeopardize downstream listed species. After consultation between various agencies over ‘‘reasonable and prudent alternatives,’’ the Service incorporated the proposed alternative into a final Biological

Opinion. This 1991 alternative limited construction of the ALP to

certain facilities, restricted annual water depletions, and provided

for a seven year study of river flows and their effect on recovery

efforts for listed species. The alternative provided for construction

of the diversion works and off-stream reservoir, but prevented furVerDate 11-MAY-2000 11:05 Dec 20, 2000 Jkt 089010 PO 00000 Frm 00002 Fmt 6659 Sfmt 6602 E:\HR\OC\SR513.XXX pfrm07 PsN: SR513
3

1See, e.g, Arizona v. California, 460 U.S. 605, 615 (rejecting an attempt to prevent tribal

intervention in a general stream adjudication where the tribes were already represented by the

United States.) 2For the same reason, the Committee notes the support for the bill from both the Navajo Nation and the Jiracilla Indian Tribe. Both tribes recognize that their own interests are served

by a legislative proposal that fully finally, and fairly resolves the Ute tribal water rights claims.

ther construction of ALP components until the study was completed.

In 1992 a lawsuit was filed to prevent construction of any part

of the ALP. This suit raised claims under several statutes, including the ESA, but not with respect to the Pikeminnow (formerly referred to as the ‘‘Squawfish’’.) Those parts of the suit based on the

ESA were dismissed as premature. However another part of the

suit asserted that the 1980 environmental impact statement was

inadequate because it did not address new circumstances, including

changes in the Project. In response to this claim the United States

began preparing a Supplemental Environmental Impact Statement,

which was completed in 1996. As outlined in the Supplemental

EIS, the A–LP would be devised into two phases and each of these

would be divided into two stages. The initial stage of Phase I would

include the following project features: Durango Pumping Plant,

Ridges Basin Inlet Conduit, Dam, and Reservoir, Durango, Shenandoah, and La Plata Rural M&I Pipelines. These components

would be constructed to accommodate increased water deliveries

from other project features. With respect to the remaining project

features, the Supplemental EIS included the following: ‘‘Based on

the * * * 7-year research study of endangered fish in the San Juan

River, the size of the dam and reservoir would be determined and

the dam and pumping plants could be sized accordingly.’’ 1996

Final Supplemental EIS, S–4.

Despite this thorough environmental review, opposition to the

project continued. In an effort to provide a process for resolving the

conflict between the A–LP’s opponents and proponents, the State of

Colorado sponsored an effort to mediate between the two sides. Unfortunately, a consensus was not possible. The Ute tribes were

amenable to negotiations over the quantity of water to be stored on

their behalf. Through successive tribal elections, however, both Ute

tribes remained steadfast in their view that they would not agree

to any settlement that did not provide them with a stored water

supply. Opponent of the ALP were strident in their view that they

would only support an approach that did not include the construction of any part of the ALP. According to the tribes, there were at

least three strong arguments to support their position that negotiations should be premised on the construction of at least some of the

ALP. First, since 1988, Federal law explicitly assured them a newly

developed water supply. Second, successive environmental studies

demonstrated that such a project can be constructed on the Animas

River in a manner consistent with applicable laws. Third, Federal

policy encourages Indian tribes to exercise self-determination with

respect to their natural resources.1

Experience teaches that Indian tribes are due a significant

amount of deference when deciding how to resolve conflicts over

their natural resources. Tribal governments are often in the best

position to weigh the tangible and intangible factors that make various options more or less risky.2 For example, both Ute tribes have

serious concerns about the uncertainty inherent in proposals to exVerDate 11-MAY-2000 11:05 Dec 20, 2000 Jkt 089010 PO 00000 Frm 00003 Fmt 6659 Sfmt 6602 E:\HR\OC\SR513.XXX pfrm07 PsN: SR513
4

change their reserved rights claims for financial resources to acquire additional water rights. The Animas-La Plata Project, Final

Supplemental Environmental Impact Statement (July 2000) (hereinafter July 2000 Final EIS) describes many of the technical limitations that are inherent in the acquisition option. In addition, the

tribes are concerned about the short and long term effects of this

approach will have on neighboring individuals and governments.

Unlike the advocates of such acquisition-oriented proposals, Indian

tribes do not have the luxury of analyzing this alternative in a vacuum. The actual implementation of a long-term program of acquiring land and water rights could easily embroil the tribes in equally

protracted disputes with local governments and private parties

over questions of taxation, jurisdiction, and regulatory control over

such resources. Also, the Tribes would be required to apply to the

State of Colorado for permission to transfer any water rights to

new uses. Ironically, the proponents of the acquisition program

would be free to oppose any tribal application to change the type,

manner or place of use; leaving the tribe with the legal right to

water, but no effective control over its use. In light of these considerations, the Committee is not surprised by the tribal opposition to

the proposals that rely solely on water acquisition and reallocation.

Negotiations with the ALP opponents also faltered because of

disagreements on how to account for the non-tribal participation in

the project. Because the original ALP included Indian and non-Indian beneficiaries, the Ute tribes refused to support any proposal

to construct facilities that would only develop a tribal water supply.

The Tribes argued that the Colorado River Storage Project Act assured non-Indians in the region a comprehensive, multi-purpose

reclamation project. The tribes could see no reason why non-tribal

project beneficiaries would agree to a settlement of tribal water

rights that de-authorized the project and offered no reciprocal benefits to non-tribal project beneficiaries. The project opponents refused to see the project in this manner. Because the project opponents insisted on some form of project de-authorization, the Tribes

knew that the project must include enough benefits to secure nonIndian support. By contrast, the project opponent seemed to expect

the non-Indians simply allow the use of the settlement to upset

non-Indian expectations. This expectation was especially unrealistic because the non-Indian beneficiaries include the State of Colorado.

Nevertheless, the Ute tribes and the other project beneficiaries

faced the prospect that compliance with Federal environmental

policies might prolong the completion of the components needed to

fulfill the Federal obligation under the Settlement Act. The first

deadline was rapidly approaching because the United States had

not fulfilled its obligations under the 1988 Settlement Act, on January 1, 2000, the Ute tribes could return to court to assert their

reserved water rights claims. The Tribes have until January 1,

2005 to assert these claims.

During the 105th Congress, Chairman Ben Nighthorse Campbell

introduced S. 1771. At a June 28, 1988 hearing, the Administration

acknowledged that the bill called for a ‘‘scaled down’’ version of the

facilities needed to fulfill the Federal government’s responsibility to

the Tribes. However, the Commissioner of the Bureau of Reclamation testified in ‘‘strong opposition’’ to the bill. This position left the

5

administration without a proposal for how to comply with the 1988

Settlement Act and without an approach for settling the tribal

claims. The Administration appeared to be uncomfortable with its

inability to comply with either the 1988 Settlement Act or the Federal government’s trust responsibility to Ute tribes.

In the face of repeated Congressional and tribal concerns, the Department commenced an effort to develop an approach for developing and resolving this untenable situation. In August 1998, the

Administration presented its proposal for fulfilling the Federal government’s obligations to the Ute tribes. On January 4, 1999, the

Department announced its intent to prepare a supplemental environmental impact statement to evaluate the impacts and alternatives to this ‘‘Administration Proposal.’’ 64 Fed. Reg. 176 (January 4, 1999). According to the Federal Register notice: ‘‘At the heart

of the proposal is a modified ALP which is limited to a smaller dam

and reservoir designed to supply municipal and industrial water to

the Colorado Ute Tribes, Navajo Nation, and non-Indian entities in

the local area.’’ The process employed by the Department in completing the environmental review of the Administration Proposal

provides the Committee and the Congress with a comprehensive

analysis of the impacts and alternatives to the Administration Proposal. Because of the extensive public involvement in the process,

each of the alternatives and refinements has also under gone an

extra-ordinary level of scrutiny and commentary, which greatly assisted the Committee in its consideration of how it should proceed.

Indeed, Section 404(r) of the Clean Water Act, P.L. 92–500, as

amended, requires the submission of the analysis under section

404(b)(1) to Congress. The Department’s environmental analysis

was especially helpful because it recognized the unique circumstances present in this case, where the Department is seeking

to fulfill its trust responsibility to the Colorado Ute tribes by carrying out the mandate of the 1998 Settlement Act in a manner consistent with Federal law, especially Federal environmental laws.

SUMMARY OF THE AMENDMENT IN THE NATURE OF A SUBSTITUTE

Section 1. Short title

Subsection (a) cites the short title of the bill as the Colorado Ute

Settlement Act Amendments of 2000.’’

Subsection (b) provides several Findings. Most of the Findings

address the need to amend the 1988 Settlement Act in light of existing circumstances, without disturbing the benefits of the historic

Settlement Agreement. As Findings 2 and 3 explain, 1988 Settlement Act settled the Colorado Ute water rights claims without reallocating water from existing users, while providing the tribes

with a firm water supply, including water for irrigation purposes.

At the present time, however, it is impractical to assume that the

ALP will include the irrigation component contemplated in 1988.

The United States cannot fulfill its obligations under the Settlement Act unless it provides irrigation water and other benefits to

the Ute tribes within the time-frames established by the Act. However, the environmental review process reveals that the United

States can provide comparable benefits to the Tribes by constructing those parts of the ALP needed to provide municipal water

6

supplies, waiving a tribal repayment obligation for this water supply, and providing resources to the Ute tribes.

The Findings also point out that the Federal courts have considered the nature and extent of Congressional involvement with a

project when reviewing Federal compliance with the National Environmental Policy Act. This is not to say that Congress has a formal

role in the NEPA process or that courts are under any obligation

to take Congressional involvement into account. Although this

Finding does not compel any entity to take Congressional deliberations into account, it would not be unprecedented for this to occur.

Subsection (c) provides five definitions used in S. 2508.

Section 2. Amendments to section 6 of the Colorado Ute Indian

Water Rights Settlement Act of 1988

As described in the Findings, the S. 2508 seeks to provide the

Ute tribes with comparable benefits to those provided under the

1988 Settlement Act. Under S. 2508 as reported by the Committee,

however, the Ute tribes will no longer receive an irrigation water

supply component under favorable repayment terms. In order to

provide comparable benefits, S. 2508 amends subsection 6(a) of the

Settlement Act to eliminate the tribal repayment obligation for municipal water supplied by the ALP. Also, neither of the Ute Tribes

are responsible for the annual operation, maintenance, and replacement cost applicable to any increment of their water supply until

that increment is used by the tribe or pursuant to a contract with

the tribe.

The 1988 Settlement Act was premised on the imminent completion of most of the authorized components of the ALP. The recent

environmental review of the ALP calls this assumption into question and provides a more reliable indication of which ALP components are likely to actually be constructed. The reconfigured settlement relies on these components for satisfying the Federal government’s obligation to the Ute tribes. Hewing very closely to the

Final EIS and the Record of Decision, the Committee amendment

specifies that tribal water rights claims are to be satisfied with

only ‘‘a reservoir, a pumping plant, a reservoir inlet conduit, and

appurtenant facilities with sufficient capacity to divert and store

water from the Animas River to provide for an average annual depletion of 57,100 acre-feet of water * * *.’’ Most of the developed

water supply from these facilities are allocated to the Ate tribes.

This proposed change to the 1988 Settlement Act also addresses

two collateral concerns affecting the use of the ALP to settle tribal

water rights claims. First, based on the breadth and depth of the

environmental review of the project, there is no reason to place any

limit on the application of Federal environmental statutes. Therefore, [section] 6(a)(1)(B) of the Settlement Act, as amended by S.

2508 provides: ‘‘Nothing in this Act shall be construed to predetermined or otherwise affect the outcome of any analysis conducted by

the Secretary or any other Federal official under applicable laws.’’

Second, the proposed changes resolve apparent concern over how

completing those parts of the project needed to settle the tribal

water rights will affect or prevent a decision on how or whether to

complete other parts of the project. It would be quite unfortunate

for the Ute tribes, the United States, and other interested parties

if this distraction was allowed to prevent the consummation of a

7

3For example, in Environmental Defense Fund v. Hoffman, 566 F.2d 1060 (8th Cir. 1977), the

8th Circuit Court of Appeals made the following finding: ‘‘There is nothing in the legislative history to suggest that Congress made a binding determination on the adequacy of the EIS and

its compliance with NEPA.’’ Nevertheless, the court found that Congressional consideration of

the adequacy of the mitigation plan was relevant, in fact dispositive: ‘‘We note moreover that

in light of the mitigation plan and the extraordinary executive and congressional review process,

it would be singularly inappropriate for this Court to substitute its judgment for that of Congress as to the impact of the project on migratory waterfowl and the adequacy of the mitigation

plan.’’ (emphasis supplied).

freely negotiated Indian water rights settlement. The committee

amendment resolves this issue because it requires further, express

authorization from Congress before additional ALP components

may be constructed. The project proponents understandably insist

that this provision will not take effect until and unless the construction and operation of the facilities described above. Some of

the testimony proffered to the Committee argued in favor of making this ‘‘de-authorization’’ provision effective immediately, whether

or not any facilities are actually constructed. Both Ute tribes expressed concern about such a change in the delicate balance

achieved by this provision. As the Tribes point out, this provision

allows those opposed to construction of the entire project to support

those elements needed to satisfy tribal water rights claims without

alienating the support of either the State of Colorado or those who

wish to leave open the option of constructing the larger project. The

proponents of a larger project have certainly made an important

concession by agreeing to condition any further project construction

on additional legislation. A number of essential parties to this settlement indicate that requiring any additional concessions in this

regard will cause them to rethink and very possibly withdraw their

support for the settlement. In addition, such a change would entangle this settlement agreement in complex interstate negotiations

that may require years or even decades to complete.

This section also provides for an up-front repayment of the nonIndian municipal and industrial capital repayment obligation. This

section also points out that Federal law does not provide a basis

for allocating costs related to ALP irrigation components to the municipal and industrial water uses or to Colorado River Storage

Project power customers. Allocating such costs would require an explicit change to Federal law. As the July 2000 EIS recognizes, in

the absence of such a change in the law, those ‘‘sunk costs’’ that

are attributed to project features that are not part of the Department’s Preferred Alternative are non-reimbursable.

Section 3. Compliance with the National Environmental Policy Act

of 1969

This section is not drafted to establish a binding determination

concerning Federal compliance with NEPA. To the extent that Congressional deliberations and determinations about the options and

benefits under consideration, there is an obvious value in memorializing these efforts and conclusions in as clear and articulated a

fashion as possible.3 The continuing Congressional effort to settle

tribal water rights claims and address regional water quality needs

within the area to be served by the ALP demonstrates Federal efforts to accomplish the ‘‘hard look’’ called for by NEPA. As approved by the Committee this section does not call upon any other

branch of the Federal government to take any action. To the extent

is addressed to any part of the government, it only provides the ExVerDate 11-MAY-2000 11:05 Dec 20, 2000 Jkt 089010 PO 00000 Frm 00007 Fmt 6659 Sfmt 6602 E:\HR\OC\SR513.XXX pfrm07 PsN: SR513
8

ecutive Branch with the option of proffering potentially-relevant information concerning Congresses part in these efforts.

Section 4. Compliance with the Endangered Species Act of 1973

This section is modeled after Section 3. Like Section 3, this section does not compel any action or decision by any other branch of

the Federal government. Under Section 4, the Executive Branch

has the option of providing information concerning Congressional

deliberations and decisions. This provision would only be applicable

if the ALP is allowed to diver at least 57,100 af/y in a manner consistent with the ESA.

Section 5. Miscellaneous

This section adds 5 new sections to the 1988 Settlement Act.

Section 15. New Mexico and Navajo Water Matters.—This new

section of the Settlement Act authorizes the Secretary to assign

some or all of the Department’s interest in a water permit. The assignment of the Department’s interest in New Mexico State Engineer Permit Number 2883 back to the New Mexico Interstate

Stream Commission or the New Mexico ALP beneficiaries is necessary to put the State of New Mexico and its citizens on an equal

footing with their Colorado neighbors, who directly hold their permits for water from the ALP. Because the Navajo Nation may not

choose to hold its interest in the ALP directly, so the provision allows for only part of the Department’s interest to be assigned. The

Committee anticipates that the State Engineer may request an assignment back of all of the permit except for the portion allocated

by agreement among the beneficiaries to the Navajo Nation, which

is proper and necessary to equalize the positions of the two states.

The Committee encourages the Secretary to complete the assignment expeditiously. This new Section also authorizes the Secretary

to construct a municipal water supply pipeline to convey at least

4,680 af/y to Shiprock, New Mexico, on the Navajo Indian Reservation.

Section 16. Tribal Resource Funds.—This section provides for the

establishment of tribal resource development funds for each of the

Ute tribes. These funds will assist the tribes with their effort to develop their resources. These funds are especially important because

S. 2508 seeks to equalize the benefits provided under its provisions

with those provided under the 1988 Settlement Act. Consistent

with the Department’s EIS, each tribe will receive $20 million to

assist with these efforts. The funds are to be used in a manner consistent with an economic development plan which must first be approved by the Secretary.

Section 17. Colorado Ute Settlement Fund.—This fund will include the appropriations provided for the construction of the facilities needed to complete construction of the facilities needed to satisfy the Federal government’s obligation to the Ute tribes.

Section 18. Final Settlement.—This section provides that the construction of the required facilities and the appropriation of funds

under sections 16 and 17 constitute final settlement of tribal claims

on the Animas and La Plata Rivers in the State of Colorado. Also,

the Attorney General may file appropriate amendments to ensure

that the changes to the Settlement Act are reflected in the ongoing

9

litigation concerning the reserved water rights claims filed by the

United States.

Section 19. Statutory Construction, Treatment of Certain

Funds.—This section confirms that the amendments made to the

Settlement Act do not affect is applicability. Also, this section confirms that the uncommitted portion of the cost-sharing obligation

from the State of Colorado shall be made available to the State

upon its request.

LEGISLATIVE HISTORY

S. 2508 was introduced on May 4, 2000, by Senator Ben

Nighthorse Campbell, and referred to the Committee on Indian Affairs. Senators Pete Domenici and Wayne Allard were joined as cosponsors of the bill. A joint hearing on the bill was held with the

Committee on Energy and Natural Resources’ Subcommittee on

Water and Power on June 7, 2000.

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business session on June 14, 2000, the Committee on

Indian Affairs, by a voice vote, adopted the bill and ordered it reported without amendment. On June 26, 2000, by unanimous consent agreement, the bill was referred to the Committee on Energy

and Natural Resources, for a period not to exceed 30 calendar days.

SECTION-BY-SECTION ANALYSIS OF S. 2508 AS REPORTED BY THE

COMMITTEE

Section 1. Short title, Findings and Definitions.

Section 2. Amendments to Section 6 of the Colorado Ute Indian

Water Rights Settlement Act of 1988.—Section 2 of the bill amends

Section 6, subsection (a) of the Colorado Ute Indian Water Rights

Settlement Act of 1988, authorizing the Secretary of the Interior,

through the Bureau of Reclamation, to construct a reservoir and

appurtenant facilities for storing water from the Animas River.

This section also specifies the allocation of water (average annual

depletions) to be diverted from the river into the reservoir, the relevant laws pertaining to the construction of the reservoir, and limitations on construction costs.

Section 3. Compliance with the National Environmental Policy

Act of 1969.—Section 3 of the bill outlines how the reservoir ALP

will comply with the National Environmental Policy Act of 1969.

Section 4 of the bill outlines how the reservoir project will comply

with the Endangered Species Act of 1973.

Section 5 of the bill introduces the new sections (Section 15 to

Section 19) to be added to the Colorado Ute Indian Water Rights

Settlement Act of 1988.

Section 15 of the bill authorizes the Secretary to convey New

Mexico State Water Rights Permits to certain individuals or entities and authorizes the Secretary to construct a facility to deliver

water to parts of the Navajo Nation.

Section 16 of the bill establishes the Southern Ute Tribal Resource Fund and the Ute Mountain Ute Tribal Resource Fund, and

authorizes appropriations for FY2001 and FY2002 to be deposited

in these funds. This section also provides for investment of tribal

resource funds, except in case the tribes provide their own investVerDate 11-MAY-2000 11:05 Dec 20, 2000 Jkt 089010 PO 00000 Frm 00009 Fmt 6659 Sfmt 6602 E:\HR\OC\SR513.XXX pfrm07 PsN: SR513
10

ment plans, and calls for each tribe to submit an economic development plan, for which the Tribal Resource Fund will be used. This

section also places a limitation on per capita distributions and a

limitation on setting aside the final consent decree.

Section 17 of the bill establishes the Colorado Ute Settlement

Fund, authorizes the appropriation of such funds as are necessary

to complete the reservoir project within six years of the date of enactment, and specifies how interest should accrue to this fund.

Section 18 of the bill states that this act constitutes the final settlement of the tribal claims to the water rights on the Animas and

La Plata Rivers in Colorado. This section also empowers the Attorney General to file the necessary instruments to amend the final

consent decree.

Section 19 of the bill provides a rule of construction concerning

the effect of these amendments and making the uncommitted parts

of its cost-sharing obligation available to the State of Colorado.

COST AND BUDGETARY CONSIDERATION

The cost estimate for S. 2508, as calculated by the Congressional

Budget Office, is not presently available. It will be included as soon

as it is provided to the Committee.

REGULATORY IMPACT STATEMENT

Paragraph 11(b) of XXVI of the Standing Rules of the Senate requires that each report accompanying a bill to evaluate the regulatory paperwork impact that would be incurred in carrying out the

bill. The Committee believes that S. 2508 will have only de minimis regulatory or paperwork impact.

EXECUTIVE COMMUNICATIONS

The following letters on S. 2508 were received by the Committee

from the Deputy Secretary of Interior on September 18, 2000.

THE DEPUTY SECRETARY OF THE INTERIOR,

Washington, DC, September 18, 2000.

Hon. BEN NIGHTHORSE CAMPBELL, U.S. Senate,

Washington, DC.

DEAR SENATOR CAMPBELL: I am writing to address two ongoing

concerns that have been raised with respect to S. 2508, the bill to

amend the Colorado Ute Indian Water Rights Settlement Act of

1988. These concerns appear to question whether the federal government should remain committed to resolving the remaining tribal water rights claims through the Settlement. We think it appropriate and helpful to provide our views on these matters, as you

and your colleagues consider moving S. 2508 towards enactment.

The first issue concerns the validity of the Colorado Ute Tribes’

water rights claims. Some opponents continue to assert that those

rights have never been properly established and that the settlement violates existing law. These allegations were first raised during the public scoping meetings associated with the NEPA analysis

conducted on the various alternatives for final implementation of

the settlement. I have attached a copy of our response. It describes

with particularity the senior water rights of the Southern Ute and

11

Ute Mountain Ute tribes, as confirmed by Congress, and subsequently by the Colorado District Court.

The second issue raised is a concern that implementing the Colorado Ute Settlement may impinge on the water rights of two downstream tribes, the Navajo Nation and the Jicarilla Apache Tribe.

This concerns also is misplaced. It is the failure to resolve the ALP

matter that would put the downstream tribes’ water rights most at

risk. Without a settlement, the Southern Ute and Ute Mountain

Ute tribes would move forward with a large claim for senior water

rights, creating the prospect for a conflict with the water rights of

downstream tribes. A scaled-back project avoid this conflict. It also

avoids the conflict that a larger project would create with respect

to the downstream tribes’ water rights. The ALP settlement also

sets aside a block of water for the Navajo Nation and funds construction of a Farmington to Shiprock drinking water system for its

benefit. It is not surprising, therefore, that all of the potentially affected tribes recently have confirmed their support for implementation of the modified settlement through a joint letter to the Department. Notwithstanding the concerns expressed by others on their

behalf, the Navajo Nation and the Jicarilla Apache Tribe can speak

for themselves, and they have.

This Administration believes that the implementation of the Colorado Ute Water Rights Settlement is long overdue. We will therefore continue to press forward with our efforts to bring this matter

to conclusion. While we are still concerned with certain aspects of

S. 2508, as outlined in our testimony, we believe that those issues

can and should be resolved. We look forward to working with you

toward that end.

Sincerely,

DAVID J. HAYES.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

Washington, DC, September 10, 1999.

Mr. PHIL DOE, Chairman, Citizens’ Progressive Alliance,

Littleton, CO.

DEAR MR. DOE: This letter is in response to your request that the

Department of the Interior evaluate the validity of the Southern

Ute Tribe’s water rights, specifically whether the Tribe has reserved water rights with an 1868 priority date or whether such

rights were extinguished by the Act of June 15, 1880. Your request

was made during the public scoping meetings associated with the

NEPA analysis being conducted on the Administration proposal

and various alternatives for final implementation of the Colorado

Ute Water Rights Settlement.

The Solicitor has evaluated your request and, for the reasons explained in the attached opinion, finds no justification to question

the Tribe’s 1868 priority date for water rights in the Animas and

LaPlata rivers. Since it is the position of the Department that the

Southern Ute and Ute Mountain Ute Tribes never lost their 1868

12

reserved water rights, we will continue to move forward with the

ongoing NEPA analysis.

Sincerely,

DAVID J. HAYES, Acting Deputy Secretary.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR,

Washington, DC, September 9, 1999.

MEMORANDUM

To: Acting Deputy Secretary.

From: Solicitor.

Re: Southern Ute Tribe’s Water Rights Priority Date.

You have requested that this Office evaluate the validity of the

Southern Ute Tribe’s water rights claims, as a result of issues

raised during the NEPA process associated with the Administration proposal for final implementation of the Colorado Ute Water

Rights Settlement. Specifically, you requested an analysis of

whether the Tribe has reserved water rights with an 1868 priority

date or whether such rights were extinguished by the Act of June

15, 1880. For the reasons explained below, we conclude that the

Southern Ute Tribe’s water rights have a priority date of 1868.

As a threshold matter, it is important to note that the Southern

Ute Tribe’s 1868 priority date was judicially established through

approval of Consent Decrees on December 19, 1991, by Colorado

District Court, Water Division 7. Under the 1986 Settlement

Agreement, as implemented by Congress through the 1988 Settlement Act, all tribal water rights claims in the Animas and LaPlata

rivers, including the priority date of those water rights, were properly before the Court in 1991 and included in the order of the

Court accepting the Consent Decree. Accordingly, further judicial

review on the propriety of the 1868 priority date is now barred by

the doctrine of res judicata. Danielson v. Vickroy, 627 P.2d 752, 761

(Colo. 1981) (an issue is res judicata if it was before the court in

proceedings which resulted in a decree.). Thus, even if we were to

find a basis upon which to question the validity of the Tribe’s priority date, which for reasons explained below we do not, the time

to raise this issue has long since passed.

Notwithstanding the jurisdictional bar to raising such an issue at

this time, the Southern Ute Tribe never lost its 1868 priority date.

The Tribe’s reserved water rights arise from its 1868 Treaty with

the United States which established the Ute Reservation in southwestern Colorado. It is well-settled that establishment of an Indian

reservation carries with it an implied reservation of the amount of

water necessary to fulfill the purposes of the reservation with a priority date no later than the date of creation of the reservation. See

Winters v. United States, 207 U.S. 564, 576–77, (1908); see also Arizona v. California, 373 U.S. 546, 599–601 (1963); United States v.

Winans, 198 U.S. 371 (1905).

No congressional action has done anything to change the priority

date of the Tribe’s water rights. Two statues did, however, substantially affect the Tribe’s land ownership. In 1880, Congress passed

13

an act to allot the Southern Ute reservation. See Act of June 15,

1880, ch. 223, 21 Stat. 199 (1880). Under this Act, all ‘‘surplus’’

lands of the Reservation (lands not allotted) were deemed to be

public lands of the United States, available for entry by non-Indians. Then in 1934, the Indian Reorganization Act (IRA), 25 U.S.C.

§ 463 et seq. (1994), officially ended the allotment era and authorized the Secretary to restore unclaimed ‘‘surplus’’ lands of any Indian reservation to tribal ownership. Restoration of the present

Southern Ute Reservation occurred on September 14, 1938. See 3

Fed. Reg. 1425 (1938).

The 1880 Act did not extinguish the Tribe’s rights in ‘‘surplus’’

lands and did nothing to affect the Tribe’s water rights for unclaimed ‘‘surplus’’ lands later restored to tribal ownership under

the IRA. Termination of diminution of treaty rights ‘‘will not be

lightly inferred,’’ Solem v. Bartlett, 465 U.S. 463, 470 (1984), and

requires express legislation or a clear inference of congressional intent gleaned from surrounding circumstances and legislative history. Bryan v. Itasca Cty., 426 U.S. 373, 392–93 (1975). The 1880

Act did not contain clear congressional intent to change the boundaries of the Tribe’s reservation and did not provide the Tribe with

full compensation for the land ceded, the combination of which

might have indicated that the reservation had been diminished.

See Solem v. Bartlett, 465 U.S. at 469–70. Similarly, the 1880 Act’s

complete silence on the issue of water rights must be interpreted

as leaving in place, not terminating, these valuable rights. Although much tribal land did, in fact, become divested from tribal

ownership, the overwhelming majority of land which now makes up

the Southern Ute Indian Reservation was retained in federal ownership and never conveyed to non-Indian parties.

Because lands declared ‘‘surplus’’ by the 1880 Act could be sold

only under certain conditions, including for the benefit of the Ute

bands, the Tribes retained an interest in the unsold land. This interest included all property rights not specifically divested. As the

Department has noted previously, during the time between allotment in 1880 and restoration of unclaimed lands in 1938, the

United States became a ‘‘trustee in possession’’ for the disposal of

the ceded land and the Tribe retained an equitable interest until

it received payment for the land. Restoration to Tribal Ownership—

Ute Lands, I Dep’t of Interior, Op. Solicitor 832, 836–37 (1938). The

promise of payment created a trust between the United States and

the Tribe. See Minnesota v. Hitchcock, 185 U.S. 373, 394–95 (1902);

Ash Sheep Co. v. United States, 252 U.S. 159, 164–66 (1920).

The decision of the Supreme Court in United States v. Southern

Ute Tribe, 402 U.S. 159 (1971) has been put forth as a reason why

the Southern Ute’s water rights were extinguished. However, this

Supreme Court decision is not relevant to the current inquiry.

Southern Ute discussed the res judicata effect of the Tribe’s claims

in front of the Indian Claims Commission (ICC). The ICC claims

at issue, however, concerned ‘‘surplus’’ lands which had passed into

private ownership or were reserved for other federal purposes, not,

as is the case here, unclaimed lands which were later restored to

tribal ownership. Some have suggested that the Southern Ute decision also affected the water rights claims of the Ute Mountain Ute

Tribe. However, the western half of the pre-1880 reservation, which

is today’s Ute Mountain Ute Reservation, was never allotted. See

14

Southern Ute, 402 U.S. at 171. Neither the 1880 Act nor any subsequent congressional action affected the Ute Mountain Ute’s water

rights which also retain an 1868 treaty date priority.

All cases which have addressed the issue conclude that the original treaty-date priority to water applies to unclaimed ‘‘surplus’’

lands which are restored to tribal ownership. See United States v.

Anderson, 736 F. 2d 1358 (9th Cir. 1984); In re-Big Horn River System, 753 P. 2d 76 (Wyo. 1988) (Big Horn I), aff’d without opinion

by an equally divided court; and In re Big Horn River System, 899

P. 2d 848 (Wyo. 1995) (Big Horn IV). Anderson developed a threeprong test for extinguishment of a Winters right; namely, there

must be: (1) cessation of the reservation, (2) opening of that land

to homesteading, and (3) conveyance into private ownership. Anderson, 736 F. 2d at 1363. While the Ninth Circuit held that no Indian

reserved water rights exist ‘‘on those reservation lands which have

been declared public domain, opened to homesteading, and subsequently conveyed into private ownership,’’ id. at 1363 (emphasis

added), it left in place the district court’s decision which awarded

a treaty-date priority for water rights to ‘‘lands opened for homesteading which were never claimed.’’ Id. at 1361 (emphasis added).

In the case of the Utes, the land restored to the Southern Ute Indian Reservation was never conveyed into private ownership. Since

the land was never conveyed into private ownership, the 1868 priority date was never affected.

The Wyoming Supreme Court reached the same conclusion when

it found a treaty-date priority for ‘‘all the reacquired lands on the

ceded portion of the [Wind River] reservation.’’ 753 P. 2d at 114

(Big Horn I). Similarly, Big Horn IV held that a treaty-date priority for reserved water rights extends to ‘‘restored, retroceded,

undisposed of, and reacquired lands owned by the Tribes; fee lands

held by Indian allottees; and lands held by Indian and non-Indian

successors to allottees.’’ 899 P. 2d at 855.

The Department notes that Big Horn IV also held that the reservation purpose and reserved water rights ‘‘no longer existed for

lands acquired by others after they had been ceded to the United

States for disposition.’’ Id. at 854 (emphasis added). This reasoning,

which comports with Anderson’s three-prong test, was used by the

Court to conclude that non-Indian settlers, under the Homestead

Act and other land-entry statutes, did not have a treaty-date priority. This holding, however, does nothing to alter the fact that

lands ceded by the Southern Ute Tribe, which were opened to settlement but unclaimed by settlers and later restored to tribal ownership, retain water rights with a treaty-date priority. Anderson,

Big Horn I, and Big Horn IV stand for the proposition, and the Department concludes, that the Tribe retains its original 1868 priority

date for all restored ‘‘surplus’’ lands.

JOHN D. LESHY.

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXXVI of the Standing

Rules of the Senate, the Committee notes the following changes in

existing law (existing law proposed to be omitted is enclosed in

black brackets, new matter printed in italic):

15

SEC. 6. REPAYMENT OF PROJECT COSTS.

ø(a) MUNICIPAL AND INDUSTRIAL WATER.—

(1) The Secretary shall defer, without interest, the repayment of the construction costs allocable to each Tribe’s municipal and industrial water allocation from the Animas-La Plata

and Dolores Projects until water is first used either by the

Tribe or pursuant to a water use contract with the Tribe. Until

such water is first used either by a Tribe or pursuant to a

water use contract with the Tribe, the Secretary shall bear the

annual operation, maintenance, and replacement costs allocable to the Tribe’s municipal and industrial water allocation

from the Animas-La Plata and Dolores Projects, which costs

shall not be reimbursable by the Tribe.

(2) As an increment of such water is first used by a Tribe

or is first used pursuant to the terms of a water used contract

with the Tribe, repayment of that increment’s pro rata share

of such allocable construction costs shall commence by the

Tribe and the Tribe shall commence bearing that increment’s

pro rata share of the allocate annual operation, maintenance,

and replacement costs.¿

(a) RESERVOIR; MUNICIPAL AND INDUSTRIAL WATER.— (1) FACILITIES.— (A) IN GENERAL.—After the date of enactment of this subsection, but prior to January 1, 2005, the Secretary, in

order to settle the outstanding claims of the Tribes on the

Animas and La Plata Rivers, acting through the Bureau of

Reclamation, is specifically authorized to—

(i) complete construction of, and operate and maintain, a reservoir, a pumping plant, a reservoir inlet

conduit, and appurtenant facilities with sufficient capacity to divert and store water from the Animas River

to provide for an adverse annual depletion of 57,100

acre-feet of water to be used for a municipal and industrial water supply, which facilities shall—

(I) be designed and operated in accordance with

the hydrologic regime necessary for the recovery of

the endangered fish of the San Juan River as determined by the Sam Juan River Recovery Implementation Program;

(II) include an inactive pool of an appropriate

size to be determined by the Secretary following the

completion of required environmental compliance

activities; and

(III) include those recreation facilities determined to be appropriate by agreement between the

State of Colorado and the Secretary that shall address the payment of any of the costs of such facilities by the State of Colorado in addition to the

costs described in paragraph (3); and

(ii) deliver, through the use of the project components

referred to in clause (i), municipal and industrial

water allocations—

(I) with an average annual depletion not to exceed 16,525 acre-feet of water, to the Southern Ute

Indian Tribe for its present and future needs;

16

(II) with an average annual depletion not to exceed 16,525 acre-feed of water, to the Ute Mountain Ute Indian Tribe for its present and future

needs;

(III) with an average annual depletion not to exceed 2,340 acre-feet of water, to the Navajo Nation

for its present and future needs;

(IV) with an average annual depletion not to exceed 10,400 acre-feet of water, to the San Juan

Water Commission for its present and future

needs;

(V) with an average annual depletion of an

amount not to exceed 2,600, acre-feet of water, to

the Animas-La Plata Conservancy District for its

present and future needs;

(VI) with an average annual depletion of an

amount not to exceed 5,230 acre-feet of water, to

the State of Colorado for its present and future

needs; and

(VII) with an average annual depletion of an

amount not to exceed 780 acre-feet of water, to the

La Plata Conservancy District of New Mexico for

its present and future needs.

(B) APPLICABILITY OF OTHER FEDERAL LAW.—The responsibilities of the Secretary described in subparagraph (A)

and subject to the requirements of Federal laws related to

the protection of the environment and otherwise applicable

to the construction of the proposed facilities, including the

National Environmental Policy Act of 1969 (42 U.S.C. 4321

et seq.), the Clean Water Act (42 U.S.C. 7401 et seq.), the

Clean Water Act (42 U.S.C. 7401 et seq.), and the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.). Nothing

in this Act shall be construed to predetermine or otherwise

affect the outcome of any analysis conducted by the Secretary or any other Federal official under applicable laws.

(C) LIMITATION.—

(i) IN GENERAL.—If constructed, the facilities described in subparagraph (A) shall not be used in conjunction with any other facility authorized as part of

the Animas-La Plata Project without express authorization from Congress.

(ii) CONTINGENCY IN APPLICATION.—If the facilities

described in subparagraph (A) are not constructed and

operated, clause (i) shall not take effect.

(2) TRIBAL CONSTRUCTION COSTS.—Construction costs allocable to the facilities that are required to deliver the municipal

and industrial water allocations described in subclauses (I), (II)

and (III) of paragraph (1)(A)(ii) shall be nonreimbursable to the

United States.

(3) NONTRIBAL WATER CAPITAL OBLIGATIONS.—Under the provisions of section 9 of the Act of August 4, 1939 (43 U.S.C.

485h), the nontribal municipal and industrial water capital repayment obligations for the facilities described in paragraph

(1)(A)(i) may be satisfied upon the payment in full of the nontribal water capital obligations prior to the initiation of conVerDate 11-MAY-2000 11:05 Dec 20, 2000 Jkt 089010 PO 00000 Frm 00016 Fmt 6659 Sfmt 6603 E:\HR\OC\SR513.XXX pfrm07 PsN: SR513
17

struction. The amount of the obligations described in the preceding sentence shall be determined by agreement between the

Secretary of the Interior and the entity responsible for such repayment as to the appropriate reimbursable share of the construction costs allocated to that entity’s municipal water supply.

Such agreement shall take into account the fact that the construction of facilities to provide irrigation water supplies from

the Animas-La Plata Project is not authorized under paragraph

(1)(A)(i) and no costs associated with the design or development

of such facilities, including costs associated with environmental

compliance, shall be allocable to the municipal and industrial

users of the facilities authorized under such paragraph.

(4) TRIBAL WATER ALLOCATIONS.— (A) IN GENERAL.—With respect to municipal and industrial water allocated to a Tribe from the Animas-La Plata

Project or the Dolores Project, until that water is first used

by a Tribe or used pursuant to a water use contract with

the Tribe, the Secretary shall pay the annual operation,

maintenance, and replacement costs allocable to that municipal and industrial water allocation of the Tribe.

(B) TREATMENT OF COSTS.—A Tribe shall not be required

to reimburse the Secretary for the payment of any cost referred to in subparagraph (A).

(5) REPAYMENT OF PRO RATA SHARE.—Upon a Tribe’s first use

of an increment of a municipal and industrial water allocation

described in paragraph (4), or the Tribe’s first use of such water

pursuant to the terms of a water use contract—

(A) repayment of that increment’s pro rate share of those

allocable construction costs of the Dolores Project shall be

made by the Tribe; and

(B) the Tribe shall bear a pro rata share of the allocable

annual operation, maintenance, and replacement costs of

the increment as referred to in paragraph (4).

* * * * * * *

(i) COMPLIANCE WITH THE NATIONAL ENVIRONMENTAL POLICY

ACT OF 1969.—

(1) AUTHORITY.—Nothing in this Act shall be construed to

alter, amend, or modify the authority or discretion of the Secretary or any other Federal official under the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) or any other

Federal law.

(2) DETERMINATION OF CONGRESS.—Subject to paragraph (3),

in any defense to a challenge of the Final Environmental Impact Statement prepared pursuant to the Notice of Intent to Prepare a Draft Environmental Impact Statement, as published in

the Federal Register on January 4, 1999 (64 Fed. Reg. 176–

179), or the compliance with the National Environmental Policy

Act of 1969 (42 U.S.C. 4321 et seq.) or the Federal Water Pollution Control Act (33 U.S.C. 1251 et seq.), and in addition to the

Record of Decision and any other documents or materials submitted in defense of its decision, the United States may assert

in its defense that Congress, based upon the deliberations and

review described in paragraph (9) of section 1(b) of the Colorado Ute Settlement Act Amendments of 2000, has determined

that the alternative described in such Final Statement meets

18

the Federal government’s water supply obligations to the Ute

tribes under this Act in a manner that provides the most benefits to, and has the least impact on, the quality of the human

environment.

(3) APPLICATION OF PROVISION.—This subsection shall only

apply if Alternative #4, as presented in the Draft Supplemental

Environmental Impact Statement dated January 14, 2000, or

an alternative substantially similar to Alternative #4, is selected by the Secretary.

(4) NO EFFECT OF MODIFICATION OF FACILITIES.—The application of this section shall not be affected by a modification of the

facilities described in subsection (a)(1)(A)(i) to address the provisions in the San Juan River Recovery Implementation Program.

* * * * * * *

(j) COMPLIANCE WITH THE ENDANGERED SPECIES ACT OF 1973.—

(1) AUTHORITY.—Nothing in this section shall be construed to

alter, amend, or modify the authority or discretion of the Secretary or any other Federal official under the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.) or any other Federal

law.

(2) DETERMINATION OF CONGRESS.—Subject to paragraph (3),

in any defense to a challenge of the Biological Opinion resulting

from the Bureau of Reclamation Biological Assessment, January 14, 2000, or the compliance with the Endangered Species

Act of 1973 (16 U.S.C. 1531 et seq.), and in addition to the

Record of Decision and any other documents or materials submitted in defense of its decision, the United States may assert

in its defense that Congress, based on the deliberations and review described in paragraph (9) of section 1(b) of the Colorado

Ute Settlement Act Amendments of 2000, has determined that

constructing and operating the facilities described in subsection

(a)(1)(A)(i) meets the Federal government’s water supply obligation to the Ute tribes under that Act without violating the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).

(3) APPLICATION OF PROVISION.—This subsection shall only

apply if the Biological Opinion referred to in paragraph (2) or

any reasonable and prudent alternative suggested by the Secretary pursuant to section 7 of the Endangered Species Act of

1973 (16 U.S.C. 1536) authorizes an average annual depletion

of at least 57,100 acre-feet of water.

(4) NO EFFECT OF MODIFICATION OF FACILITIES.—The application of this subsection shall not be affected by a modification of

the facilities described in subsection (a)(1)(A)(i) to address the

provisions in the San Juan River Recovery Implementation Program.

* * * * * * *

SEC. 15. NEW MEXICO AND NAVAJO NATION WATER MATTERS.

(a) ASSIGNMENT OF WATER PERMIT.—Upon the request of the

State Engineer of the State of New Mexico, the Secretary shall, in

a manner consistent with applicable State law, assign, without consideration, to the New Mexico Animas-La Plata Project beneficiaries

or the New Mexico Interstate Stream Commission any portion of the

Department of the Interior’s interest in New Mexico Engineer Permit

19

Number 2883, dated May 1, 1956, in order to fulfill the New Mexico

purposes of the Animas-La Plata Project, so long as the permit assignment does not affect the application of the Endangered Species

Act of 1973 (16 U.S.C. 1531 et seq.) to the use of the water involved.

(b) NAVAJO NATION MUNICIPAL PIPELINE.—The Secretary may

construct a water line to augment the existing system that conveys

the municipal water supplies, in an amount not less than 4,680

acre-feet per year, of the Navajo Nation to the Navajo Indian Reservation at Shiprock, New Mexico. The Secretary shall comply with

all applicable environmental laws with respect to such water line.

Construction costs allocated to the Navajo Nation for such water

line shall be nonreimbursable to the United States.

(c) PROTECTION OF NAVAJO WATER CLAIMS.—Nothing in this Act

shall be construed to quantify or otherwise adversely affect the

water rights and the claim of entitlement to water of the Navajo Nation.

* * * * * * *

SEC. 16. TRIBAL RESOURCE FUNDS.

(a) ESTABLISHMENT.— (1) AUTHORIZATION OF APPROPRIATIONS.—There is authorized

to be appropriated to carry out this section, $20,000,000 for fiscal year 2001 and $20,000,000 for fiscal year 2002. Not later

than 60 days after amounts are appropriated and available to

the Secretary for a fiscal year under this paragraph, the Secretary shall make a payment to each of the Tribal Resource

Funds established under paragraph (2). Each such payment

shall be equal to 50 percent of the amount appropriated for the

fiscal year involved.

(2) FUNDS.—The Secretary shall establish a—

(A) Southern Ute Tribal Resource Fund; and

(B) Ute Mountain Ute Tribal Resource Fund.

A separate account shall be maintained for each such Fund.

(b) ADJUSTMENT.—To the extent that the amount appropriated

under subsection (a)(1) in any fiscal year is less than the amount

authorized for such fiscal year under such subsection, the Secretary

shall, subject to the availability of appropriations, pay to each of the

Tribal Reserve Funds an adjustment amount equal to the interest

income, as determined by the Secretary in his or her sole discretion,

that would have been earned on the amount authorized but not appropriated under such subsection had that amount been placed in

the Fund as required under such subsection.

(c) TRIBAL DEVELOPMENT.—

(1) INVESTMENT.—The Secretary shall, in the absence of an

approved tribal investment plan provided for under paragraph

(2), invest the amount in each Tribal Resource Fund in accordance with the Act entitled, ‘‘An Act to authorize the deposit and

investment of Indian funds’’ approved June 24, 1938 (25 U.S.C.

162a). The Secretary shall disburse, at the request of a Tribe,

the principal and income in its Resource Fund, or any part

thereof, in accordance with a resource acquisition and enhancement plan approved under paragraph (3).

(2) INVESTMENT PLAN.—

(A) IN GENERAL.—In lieu of the investment provided for

in paragraph (1), a Tribe may submit a tribal investment

20

plan applicable to all or part of the Tribe’s Tribal Resource

Fund.

(B) APPROVAL.—Not later than 60 days after the date on

which an investment plan is submitted under subparagraph (A), the Secretary shall approve such investment

plan if the Secretary finds that the plan is reasonable and

sound. If the Secretary does not approve such investment

plan, the Secretary shall set forth in writing and with particularity the reasons for such disapproval. If such investment plan is approved by the Secretary, the Tribal Resource Fund involved shall be disbursed to the Tribe to be

invested by the Tribe in accordance with the approved investment plan.

(C) COMPLIANCE.—The Secretary may take such steps as

the Secretary determines to be necessary to monitor the

compliance of a Tribe with an investment plan approved

under subparagraph (B). The United States shall not be responsible for the review, approval, or audit of any individual investment under the plan. The United States shall

not be directly or indirectly liable with respect to any such

investment, including any act or omission of the Tribe in

managing or investing such funds.

(D) ECONOMIC DEVELOPMENT PLAN.—The principal and

income derived from tribal investments under an investment plan approved under subparagraph (B) Shall be subject to the provisions of this section and shall be expended

only in accordance with an economic development plan approved under paragraph (3).

(3) ECONOMIC DEVELOPMENT PLAN.—

(A) IN GENERAL.—Each Tribe shall submit to the Secretary a resource acquisition and enhancement plan for all

any portion of its Tribal Resource Fund.

(B) APPROVAL.—Not later than 60 days after the date on

which a plan is submitted under subparagraph (A), the

Secretary shall approve such investment plan if the Secretary finds that the plan is reasonably related to the protection, acquisition, enhancement, or development of natural resources for the benefit of the Tribe and its members.

If the Secretary does not approve such plan, the Secretary

shall, at the time of such determination, set forth in writing

and with particularity the reasons for such disapproval.

(C) MODIFICATION.—Subject to the approval of the Secretary, each Tribe may modify a plan approved under subparagraph (B).

(D) LIABILITY.—The United Stats shall not be directly or

indirectly liable for any claim cause of action arising from

the approval of a plan under this paragraph, or from the

use and expenditure by the Tribe of the principal or interest

of the Funds.

(d) LIMITATION ON PER CAPITA DISTRIBUTIONS.—No part of the

principal contained in the Tribal Resource Fund, or of the income

accruing to such funds, or the revenue from any water use contract,

shall be distributed to any member of either Tribe on a per capita

basis.

21

(e) LIMITATION ON SETTING ASIDE FINAL CONSENT DECREE.—Neither the Tribes nor the United States shall have the right to set

aside the final consent decree solely because the requirements of subsection (c) are not complied with or implemented.

* * * * * * *

SEC. 17. COLORADO UTE SETTLEMENT FUND.

(a) ESTABLISHMENT OF FUND.—There is hereby established within

the Treasury of the United States a fund to be known as the ‘‘Colorado Ute Settlement Fund’’.

(b) AUTHORIZATION OF APPROPRIATIONS.—There is authorized to

be appropriated to the Colorado Ute Settlement Fund such funds as

are necessary to complete the construction of the facilities described

in section 6(a)(1)(A) within 6 years of the date of enactment of this

section. Such funds are authorized to be appropriated for each of

the first 5 fiscal years beginning with the first full fiscal year following the date of enactment of this section.

(c) INTEREST.—Amounts appropriated under subsection (b) shall

accrue interest, to be paid on the dates that are 1, 2, 3, 4, and 5

years after the date of enactment of this section, at a rate to be determined by the Secretary of the Treasury taking into consideration

the average market yield on outstanding Federal obligations of comparable maturity, except that no such interest shall be paid during

any period where a binding final court order prevents construction

of the facilities described in section 6(a)(1)(A).

* * * * * * *

SEC. 18. FINAL SETTLEMENT.

(a) IN GENERAL.—The construction of the facilities described in

section 6(a)(1)(A), the allocation of the water supply from those facilities to the Tribes as described in that section, and the provision

of funds to the Tribes in accordance with sections 16 and 17 shall

constitute final settlement of the tribal claims to water rights on the

Animas and La Plata Rivers in the State of Colorado.

(b) STATUTORY CONSTRUCTION.—Nothing in this section shall be

construed to affect the right of the Tribes to water rights on the

streams and rivers described in the Agreement, other than the

Animas and La Plata Rivers, to receive the amounts of water dedicated to tribal use under the Agreement, or to acquire water rights

under the laws of the State of Colorado.

(c) ACTION BY THE ATTORNEY GENERAL.—The Attorney General

shall file with the District Court, Water Division Number 7, of the

State of Colorado, such instruments as may be necessary to request

the court to amend the final consent decree to provide for the

amendments made to this Act under the Colorado Ute Indian Water

Rights Settlement Act Amendments of 2000.

* * * * * * *

SEC. 19. STATUTORY CONSTRUCTION; TREATMENT OF CERTAIN

FUNDS.

(a) IN GENERAL.—Nothing in the amendments made by the Colorado Ute Settlement Act Amendments of 2000 shall be construed to

affect the applicability of any provision of this Act.

(b) TREATMENT OF UNCOMMITTED PORTION OF COST-SHARING OBLIGATION.—The uncommitted portion of the cost-sharing obligation

22

of the State of Colorado referred to in section 6(a)(3) shall be made

available, upon the request of the State of Colorado, to the State of

Colorado after the date on which payment is made of the amount

specified in that section.

Æ