89–010 

Calendar No. 257 

111TH CONGRESS REPORT " ! SENATE 2d Session 111–117 

A BILL TO APPROVE THE TAOS PUEBLO INDIAN WATER 

RIGHTS SETTLEMENT AGREEMENT, AND FOR OTHER 

PURPOSES 

JANUARY 20, 2010.—Ordered to be printed 

Mr. DORGAN, from the Committee on Indian Affairs, 

submitted the following 

R E P O R T 

together with 

ADDITIONAL VIEWS 

[To accompany S. 965] 

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

(S. 965) to approve the Taos Pueblo Indian Water Rights Settlement Agreement, and for other purposes, having considered the 

same, reports favorably thereon, with amendments, and recommends that the bill (as amended) do pass. 

PURPOSE

The purpose of S. 965 is to approve the Taos Pueblo Indian 

Water Rights Settlement, to authorize and direct the Secretary to 

execute the Settlement Agreement and perform all obligations of 

the Secretary under the Settlement Agreement, and to authorize 

all actions and appropriations necessary for the United States to 

meet its obligations under the Settlement Agreement and the Act. 

BACKGROUND

The Taos Pueblo Indian Water Rights Settlement Act, S. 965, resolves a long-standing Indian water rights case in the State of New 

Mexico. Legislation is needed to ratify the quantification and settlement of water rights of the Taos Pueblo (Pueblo) and to resolve 

water rights claims of the Pueblo against the United States and release the United States from further liability. Without legislation 


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the Pueblo and other parties would be required to continue to engage in litigation to determine their respective water rights. 

S. 965 addresses the water rights claims of the Pueblo asserted 

in the case of State of New Mexico, ex rel. State Engineer v. 

Eduardo Abeyta (Abeyta), filed in 1969, and approves the settlement of water rights in three tributaries of the Rio Grande in 

northern New Mexico—the Rio Pueblo, Rio Lucero and Rio Hondo. 

Since 1989, the vast majority of water users in the Taos Valley 

were represented at some point in the development of the Settlement Agreement approved by S. 965. Settlement parties include 

the Pueblo, the Taos Valley Acequia Association, the Town of Taos, 

El Prado Water and Sanitation District, and the twelve Taos-area 

Mutual Domestic Water Consumers’ Associations. 

The Pueblo is located in North-Central New Mexico. Pueblo enrollment is 2,458 members and growing. The Pueblo’s land base is 

approximately 100,000 acres, including semi-arid lands along the 

Rio Grande, irrigated farmlands, and mountains. At the foot of the 

mountains are Pueblo farmlands that have been irrigated in prehistoric and historic times through a complex ditch irrigation system. The Blue Lake Wilderness Area, a sacred area for the Pueblo, 

is a major part of the watershed involved in the settlement. The 

Pueblo is also a National Historic Landmark and a World Heritage 

Site. 

S. 965 ratifies the parties’ March 31, 2006, Settlement Agreement, which resolves the water rights claims of the Pueblo and 

thousands of water right claimants throughout the Taos Valley in 

New Mexico. S. 965 authorizes approximately $121 million in federal appropriations. Non-Indian parties to the settlement intend to 

seek about an additional $22 million in funding from the State of 

New Mexico for a share of some of the settlement costs. If sufficient 

appropriations have not been made by 2020, some of the federal 

costs of S. 965 may be satisfied from the ‘‘Reclamation Water Settlements Fund’’ which was created by section 10501 of P.L. 111– 

11. 

SUMMARY OF MAJOR PROVISIONS

Section 4 of S. 965 ratifies the quantification of the water rights 

of the Pueblo and states that those water rights are held in trust 

by the United States on behalf of the Pueblo. 

Under section 5, the Commissioner of Reclamation is directed to 

provide non-reimbursable grants to the Pueblo to plan, design, and 

construct water related projects. Section 5 also provides for non-reimbursable grants to restore and protect the environment associated with the Buffalo Pasture, a culturally sensitive wetland that 

has been impacted by non-Indian groundwater production. 

Section 6 establishes a Taos Pueblo Water Development Fund in 

the United States Treasury to be used by the Pueblo for acquiring 

water rights, developing water projects, administering water rights, 

and protecting and enhancing the watershed. 

Section 7 of the bill permits marketing of Pueblo water rights 

subject to the approval of the Secretary of the Interior. Some of the 

water marketed by the Pueblo would come from a contract entered 

into by the Secretary of the Interior pursuant to section 9. 

Section 8 authorizes the Bureau of Reclamation to provide nonreimbursable grants to non-Pueblo entities to develop water related 


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projects that are identified in the Settlement Agreement as serving 

the mutual benefit of Pueblo and non-Pueblo users in the Taos Valley. 

Section 9 authorizes the Secretary of the Interior to enter into 

contracts for the delivery of San Juan-Chama Project water to settlement parties. Section 9 specifies that under these contracts 

2,215 acre-feet per year will be delivered to the Pueblo, 366 acrefeet per year will be delivered to the Town of Taos, and 40 acrefeet per year will be delivered to the El Prado Water and Sanitation District. 

Section 10 authorizes approximately $121 million in federal appropriations. Section 10 also provides that one of the conditions for 

the Settlement Agreement and the waivers and releases contained 

in S. 965 to become effective is the appropriation by the State of 

New Mexico of funding for State contributions for a share of 

projects identified in the Settlement Agreement. 

Section 11 provides waivers of the Pueblo and the United States, 

as trustee, to claims and parties in the Abeyta case. 

LEGISLATIVE HISTORY

In the 110th Congress, Senator Bingaman and Senator Domenici 

introduced S. 3381 which contained authorizations nearly identical 

to S. 965. On September 11, 2008, the Committee held a legislative 

hearing on S. 3381, and it was reported out of the Committee on 

September 23, 2008. That bill was never considered by the full Senate. 

S. 965 was introduced by Senator Bingaman on May 4, 2009, 

with Senator Tom Udall as an original cosponsor, and referred to 

the Committee on Indian Affairs. At an open business meeting on 

September 10, 2009, the Committee approved S. 965 with an 

amendment offered by Senator Udall. 

A companion bill, the Taos Pueblo Indian Water Rights Settlement Act, H.R. 3254, was introduced in the House of Representatives on July 17, 2009, by Representative Lujan, and referred to 

the House Committee on Natural Resources. On September 9, 

2009, a hearing on H.R. 3254 was held by the Water and Power 

Subcommittee of the House Committee on Natural Resources. 

SUMMARY OF AMENDMENT

During the consideration of S. 965, the Committee adopted an 

amendment to improve the bill. The amendment deleted an exemption for Secretarial approval of certain subcontracts and extended 

the deadline for Secretarial approval of certain contracts. Both 

changes were made in response to concerns raised by the Administration. The amendment also included a technical change to make 

deadlines consistent. 

SECTION-BY-SECTION ANALYSIS OF S. 965 AS AMENDED

Section 1. Short title 

Section 1 provides the short title of S. 965 as the ‘‘Taos Pueblo 

Indian Water Rights Settlement Act.’’ 


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Section 2. Purpose 

Section 2 specifies the purposes of S. 965, including: to approve 

the Taos Pueblo Indian Water Rights Settlement Agreement, to authorize the Secretary to execute the Settlement Agreement and to 

perform obligations under it, and to authorize necessary actions 

and appropriations. 

Section 3. Definitions 

Section 3 defines terms used in S. 965. 

Section 4. Pueblo rights 

Section 4(a) states that the rights to which Taos Pueblo is entitled under the Partial Final Decree will be held in trust by the 

United States and not subject to forfeiture, abandonment or permanent alienation. Section 4(b) states that the Pueblo will not be denied its rights held in trust absent its consent unless explicitly abrogated by a future act of Congress. 

Section 5. Pueblo water infrastructure and watershed enhancement 

Section 5(a) requires the Secretary of the Interior, acting through 

the Commissioner of Reclamation, to provide grants and technical 

assistance to the Pueblo on a non-reimbursable basis for specified 

purposes. Section 5(b) provides that upon the enforcement date, all 

amounts appropriated pursuant to section 10(c)(1) will be available 

in grants to the Pueblo after the requirements of section 5(c) have 

been met. Section 5(c) states that the Secretary will provide financial assistance pursuant to subsection (a) upon Taos Pueblo’s submittal of a plan. Section 5(d) provides that $10 million of the monies authorized to be appropriated pursuant to section 10(c)(1) will 

be made available upon appropriation or upon availability of funds 

from other authorized sources and will be distributed to Taos Pueblo upon receipt by the Secretary of a written notice, Tribal Council 

resolution, and a plan for this portion of the funding from Taos 

Pueblo. 

Section 6. Taos Pueblo Water Development Fund 

Section 6(a) establishes the Taos Pueblo Water Development 

Fund in the Treasury and specifies uses of the fund by Taos Pueblo. Section 6(b) directs the Secretary to manage and distribute 

money from the Taos Pueblo Water Development Fund in accordance with the American Indian Trust Fund Management Reform 

Act, S. 965 and the Settlement Agreement. 

Section 6(c) directs the Secretary to invest amounts in the Taos 

Pueblo Water Development Fund in accordance with the American 

Indian Trust Fund Management Reform Act and other specified 

acts. Section 6(d) provides that all monies in the Taos Pueblo 

Water Development Fund will be available to Taos Pueblo after the 

requirements of subsection (e) are met. Section 6(e) identifies conditions for expenditures and withdrawals from the Taos Pueblo 

Water Development Fund. 

Section 6(f) provides that $15 million of the monies authorized to 

be appropriated pursuant to section 10(c)(1) will be made available 

upon appropriation for specified purposes and will be distributed to 

Taos Pueblo by the Secretary upon receipt of a written notice and 


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Tribal Council resolution. Section 6(g) prohibits distribution of the 

Taos Pueblo Water Development Fund on a per capita basis. 

Section 7. Marketing 

Section 7(a) authorizes Taos Pueblo to lease water rights secured 

to it under the Settlement Agreement and Partial Final Decree 

subject to approval of the Secretary. Section 7(b) authorizes Taos 

Pueblo to subcontract to third parties water made available to the 

Pueblo under the San Juan-Chama Project contract authorized by 

section 9(b)(1)(A) provided that the delivery obligations under such 

subcontract are consistent with the Secretary’s existing San JuanChama Project obligations and subject to approval of the Secretary. 

Section 7(c) specifies certain limitations on the diversion or use 

of water off Pueblo Lands pursuant to Pueblo water rights or Pueblo contract rights to San Juan-Chama Project water. Section 7(d) 

specifies the maximum term of any water use lease or subcontract 

and provides that Taos Pueblo will not permanently alienate any 

rights under the Settlement Agreement, the Partial Final Decree, 

or S. 965. 

Section 7(e), as amended, requires Secretarial approval of any 

lease or subcontract within a specified time and provides that no 

Secretarial approval will be required for any water use lease with 

a term of less than 7 years. Section 7(f) states that the nonuse by 

a lessee or subcontractor of any right to which Taos Pueblo is entitled under the Partial Final Decree will in no event result in a forfeiture, abandonment, relinquishment or other loss. Section 7(g) 

states that the approval authority under subsection (e) will not 

amend, construe, supersede or preempt specified State or Federal 

law, and provides that 25 U.S.C. Sec. 177 will not apply to any 

water made available under the Settlement Agreement. 

Section 7(h) declares that nothing in S. 965 will be construed to 

prejudice any party from litigating whether or to what extent specified law applies to the use of the Pueblo’s water outside New Mexico. 

Section 8. Mutual-benefit projects 

Section 8(a) requires the Secretary, acting through the Commissioner of Reclamation, to provide financial assistance in the form 

of grants on a non-reimbursable basis to Eligible Non-Pueblo Entities to plan, permit, design, engineer and construct the Mutual 

Benefits Projects in accordance with the Settlement Agreement for 

specified purposes. Section 8(b) specifies the Federal and non-Federal shares of the total cost of planning, designing and constructing 

the Mutual Benefit Projects and authorizes non-Federal share in 

the form of in-kind contributions. 

Section 9. San Juan-Chama Project contracts 

Section 9(a) requires that contracts issued under this section be 

in accordance with S. 965 and the Settlement Agreement. Section 

9(b) authorizes the Secretary to enter into 3 repayment contracts— 

one with Taos Pueblo and one each with two other settling parties, 

the Town of Taos and El Prado Water and Sanitation District—for 

the delivery of specified amounts of San Juan-Chama Project 

water, and provides for the expiration of each contract if the conditions precedent to the settlement set forth in Section 10(f)(2) have 


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not been fulfilled by a specified date. Section 9(c) requires the Secretary to waive Taos Pueblo’s share of the construction costs, including both principle and interest, for the San Juan-Chama 

Project and specifies that those construction costs waived will be 

non-reimbursable. 

Section 10. Authorizations, ratifications, confirmations, and conditions precedent 

Section 10(a) authorizes, ratifies and confirms the Settlement 

Agreement resolving the Taos Pueblo’s water rights claims in the 

Taos Valley and amendments to make the Settlement Agreement 

consistent with S. 965. Section 10(b) directs the Secretary to execute the Settlement Agreement, including any amendments necessary to make the Agreement consistent with S. 965, after execution by Taos Pueblo. 

Section 10(c) authorizes appropriations for the Taos Pueblo Infrastructure and Watershed Fund, the Taos Pueblo Water Development Fund, and Mutual Benefits Projects Funding; requires adjustment of the amounts authorized by changes in costs since April 1, 

2007 as indicated by specified indices; and requires the funds to be 

deposited into a Taos Settlement Fund to be established in the 

Treasury, except for specified early funds to Taos Pueblo. Section 

10(d) authorizes the Secretary to enter into agreements and to take 

measures necessary and appropriate to fulfill the intent of the Settlement Agreement and S. 965. 

Section 10(e) states that the Secretary’s execution of the Settlement Agreement will not constitute a major federal action under 

the National Environmental Policy Act and requires the Secretary 

to comply with Federal laws relating to the protection of the environment. 

Section 10(f) declares the conditions precedent for the Settlement 

Agreement to become enforceable and for the waivers and releases 

to become effective, and provides that upon fulfillment of those conditions the Secretary will publish in the Federal Register a statement of finding that the conditions have been fulfilled. Section 

10(g) declares that the Settlement Agreement will become enforceable and the waivers and releases will become effective as of the 

date that the Secretary publishes the notice that the conditions 

precedent set forth in subsection (f)(2) have been fulfilled. 

Section 10(h) provides that the Settlement Agreement will become null and void, and the waivers and releases will not become 

effective, if the conditions precedent set forth in subsection (f)(2) 

have not been fulfilled by a specified date, and requires the return 

to the Federal government of unexpended Federal funds and title 

to property acquired or constructed with expended funds, unless 

otherwise agreed by the parties and approved by Congress, with an 

exception for the early funds made available to Taos Pueblo under 

sections 5(d) and 6(f) and a right for the United States to set off 

amounts against claims asserted by the Pueblo against the United 

States relating to water rights in the Taos Valley. 

Section 11. Waivers and releases 

Section 11(a) requires the Taos Pueblo and the United States to 

execute specified waivers and releases associated with water rights 

claims of Taos Pueblo and the United States in its trustee capacity 


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to the Pueblo in the Taos Valley or the Rio Grande mainstream or 

tributary water. Section 11(b) requires the Taos Pueblo to execute 

specified waivers and releases of certain claims against the United 

States associated with Taos Pueblo’s water rights claims. Section 

11(c) identifies certain rights and claims of Taos Pueblo and the 

United States on its behalf that are retained and provides that all 

rights, remedies, privileges, immunities, powers and claims not 

specifically waived are retained. Section 11(e) provides for the tolling of periods of limitation and time-based equitable defenses relating to claims described in this section. 

Section 12. Interpretation and enforcement 

Section 12(a) provides for a limited waiver of sovereign immunity 

by the United States and Taos Pueblo in any court of competent 

jurisdiction over the subject matter relating only and directly to the 

interpretation or enforcement of the Settlement Agreement or S. 

965. Section 12(b) states that nothing in S. 965 will be interpreted 

as conferring, restricting, enlarging, or determining the subject 

matter jurisdiction of any court. Section 12(c) states that nothing 

in S. 965 will be deemed to determine or limit any authority of the 

State of New Mexico or Taos Pueblo to regulate or administer waters or water rights. 

Section 13. Disclaimer 

Section 13 disclaims any effect of S. 965 on the land and water 

rights of any other Indian tribe. 

COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business meeting on September 10, 2009, the Committee on Indian Affairs, by voice vote, adopted S. 965, as amended, and ordered the bill reported to the Senate, with the recommendation that the Senate do pass S. 965 as amended. 

COST AND BUDGETARY CONSIDERATIONS

S. 965—Taos Pueblo Indian Water Rights Settlement Act 

Summary: S. 965 would approve and ratify a settlement agreement between the Taos Pueblo and the state of New Mexico. The 

agreement would settle the Pueblo’s claims to water rights in the 

state. As part of that agreement, the bill would authorize the appropriation of funds to construct and rehabilitate water infrastructure and preserve environmentally sensitive lands in the Taos Valley. The bill also would establish a trust fund for the Pueblo to acquire water rights and maintain the water infrastructure. Finally, 

the bill would authorize appropriations to mitigate any adverse impacts on Pueblo lands caused by diverting water to execute the settlement agreement. 

Based on information from the Department of the Interior (DOI), 

CBO estimates that implementing S. 965 would cost $25 million 

over the 2010–2014 period and an additional $114 million to be 

spent beginning in fiscal year 2017 (as specified by the proposed 

settlement agreement), assuming appropriation of the necessary 

amounts. Enacting S. 965 would not affect direct spending or revenues. 


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S. 965 contains no intergovernmental or private-sector mandates 

as defined in the Unfunded Mandates Reform Act (UMRA) and 

would impose no costs on state, local, or tribal governments. 

Estimated cost to the Federal Government: The estimated budgetary impact of S. 965 is shown in the following table. The costs 

of this legislation fall within budget functions 300 (natural resources and environment) and 450 (community and regional development). 

By fiscal year, in millions of dollars— 

2010 2011 2012 2013 2014 2010– 

2014 

CHANGES IN SPENDING SUBJECT TO APPROPRIATION 

Pueblo Water Infrastructure: 

Estimated Authorization Level ................................. 1 3 3 3 0 10 

Estimated Outlays ................................................... 1 3 3 3 0 10 

Water Development Fund: 

Estimated Authorization Level ................................. 3 3 3 3 3 15 

Estimated Outlays ................................................... 3 3 3 3 3 15 

Total Spending Under S. 965: 

Estimated Authorization Level ........................ 4 6 6 6 3 25 

Estimated Outlays .......................................... 4 6 6 6 3 25 

Basis of estimate: For this estimate, CBO assumes that S. 965 

will be enacted early in fiscal year 2010 and that the necessary 

amounts will be appropriated each year. The enforcement of the 

settlement agreement depends on the completion of a number of actions by federal, state, local, and tribal entities. CBO expects that 

those actions will be completed early in fiscal year 2017. The estimated costs of those projects are based on information from DOI 

and on historical spending patterns for similar activities. 

In 2006, the Taos Pueblo in New Mexico and several other parties signed a settlement agreement resolving a water-rights dispute 

in the Taos Valley. The United States would become a party to that 

agreement upon enactment of S. 965, provided that certain other 

conditions are met. Among those conditions, the Secretary would 

have to publish a statement of findings in the Federal Register indicating that all parties have executed the agreement; the U.S. district court would have to issue a partial decree concerning the 

agreement; the Congress would have to appropriate sufficient funds 

to carry out certain provisions of the bill, which CBO estimates 

would cost $139 million; and New Mexico would have to appropriate amounts it would owe the Pueblo under the agreement. 

Based on information from DOI and assuming appropriation of 

the necessary amounts, CBO estimates that implementing the legislation would cost $25 million over the 2010–2014 period and $114 

million after 2016. Should the Secretary of the Interior not publish 

the required statement of findings by December 31, 2016, verifying 

that all conditions necessary to execute the agreement have been 

met, the agreement would not take effect, and any appropriated 

funds that remain unspent and title to any property acquired or 

constructed with federal funds would be returned to the federal 

government (unless otherwise specified by the bill). 

Pueblo water infrastructure 

Section 5 would authorize the Secretary of the Interior to provide 

grants to the Taos Pueblo to construct and maintain water infraVerDate Nov 24 2008 06:56 Jan 21, 2010 Jkt 089010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR117.XXX SR117

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structure and to restore and protect environmentally sensitive 

lands and watersheds. The bill would authorize the appropriation 

of $30 million (plus additional amounts needed because of increases 

in construction costs) over the 2010–2016 period. Of that amount, 

$10 million could be expended upon appropriation. The remaining 

$20 million would not be available to the Secretary until the enforcement date of the settlement—near the beginning of fiscal year 

2017. CBO estimates that implementing this grant program would 

cost $10 million over the 2010–2014 period and an additional $24 

million beginning in 2017. 

Water Development Fund 

Section 6 would authorize the appropriation of $58 million (plus 

additional amounts needed because of increases in construction 

costs) over the 2010–2016 period for the Taos Pueblo Water Development Fund. The Secretary of the Interior would be directed to 

hold those funds in trust for the Pueblo until the enforcement date 

of the settlement—the beginning of fiscal year 2017. After that 

date, the Secretary would be required to invest amounts in the 

fund in U.S. Treasury obligations, and those amounts would be 

available to the Pueblo to construct, operate, and maintain certain 

water system facilities owned or operated by the Pueblo. 

Of the total amount authorized to be appropriated to the fund, $15 million would be available immediately for the Pueblo to acquire certain water rights. Control over those amounts would be 

transferred to the Pueblo when appropriated. The remaining 

amounts could be spent by the Pueblo only after the settlement 

agreement is executed. Assuming appropriation of the authorized 

amounts, CBO estimates that outlays from the fund would total 

$15 million over the 2010–2014 period and $52 million after 2016. 

Payments to certain tribal trust funds that are held and managed in a fiduciary capacity by the federal government on behalf 

of Indian tribes are treated as payments to a nonfederal entity. As 

a result, CBO expects that the entire amount deposited into the 

Taos Pueblo Water Development Fund (excluding amounts made 

available to acquire water rights) would be recorded as an outlay 

in 2017 when the funds could be spent by the Pueblo. Subsequently, any use of such funds would have no effect on the federal 

budget. Because S. 965 directs the Secretary to invest amounts in 

the fund only after those amounts are available to the Pueblo, CBO 

expects that no interest would accrue on the amounts in the fund 

until after the payments are made in 2017. 

Mutual-benefit projects 

Section 8 would authorize the Secretary of the Interior to provide 

grants to local governments (other than the Taos Pueblo) for 

projects intended to mitigate the impact of diverting water from 

present uses to execute the settlement. The bill would authorize 

the appropriation of $33 million (plus additional amounts needed 

because of increases in constructions costs) over the 2010–2016 period. The funds would be available on the settlement’s enforcement 

date—the beginning of fiscal year 2017. Assuming appropriation of 

the authorized amounts, CBO estimates that implementing this 

grant program would have no cost over the 2010–2014 period and 

would cost $38 million after 2016. 


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Intergovernmental and private-sector impact: S. 965 contains no 

intergovernmental or private-sector mandates as defined in UMRA. 

The bill would authorize water projects and provide other assistance that would benefit state, local, and tribal governments. Any 

costs to those governments would be incurred voluntarily as a condition of federal assistance. 

Estimate prepared by: Federal costs: Jeff LaFave; Impact on 

state, local, and tribal governments: Melissa Merrell; Impact on the 

private sector: Marin Randall. 

Estimate approved by: Theresa Gullo, Deputy Assistant Director 

for Budget Analysis. 


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REGULATORY AND PAPERWORK IMPACT STATEMENT

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

out the bill. The Committee believes that the regulatory and paperwork impact of S. 965 will be minimal. 

CHANGES IN EXISTING LAW

In compliance with subsection 12 of rule XXVI of the Standing 

Rules of the Senate, the Committee finds that the enactment of S. 

965 will not make any changes in existing law. 


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ADDITIONAL VIEWS OF SENATOR TOM UDALL 

I am pleased that the Indian Affairs Committee voted to report 

S. 965, The Taos Pueblo Indian Water Rights Settlement Act. I appreciate the support of my colleagues on this bill and the efforts of 

the Chairman to move this bill forward in a timely manner. 

Following the Committee Business Meeting in which S. 965 was 

reported, the Administration submitted a letter to the Committee, 

through Commissioner of Reclamation Michael L. Connor, expressing its views on S. 965. As explained in Commissioner Connor’s letter, these views supplement his testimony delivered to the House 

Subcommittee on Water and Power on September 9, 2009 on identical companion legislation, H.R. 3254. 

In response to both the letter and the testimony, I received a letter from Pueblo of Taos Governor Ruben A. Romero, and War Chief 

Bernard Lujan discussing some of the issues raised. To ensure clarity and completeness of the Committee’s report on S. 965, I would 

like to submit portions of the Pueblo’s response that address issues 

raised by the Administration and Commissioner Connor. In the 

portions below, the Pueblo refers to the Administration’s testimony 

before the House Subcommittee on Water and Power on September 

9, 2009 as ‘‘Administration Testimony,’’ and the letter submitted by 

Commissioner Conner to the Committee as the ‘‘Connor letter.’’ The 

Pueblo’s letter stated in part: 

We commend Commissioner Connor and this Administration for 

their vision and commitment to our settlement efforts that have resulted in strong Administration support for the core settlement 

components and no objection to the overall cost of our settlement. 

As Commissioner Connor’s letter highlights, substantial compromises by Taos Pueblo have also made this achievement possible. 

We are waiving the vast majority of our formidable senior historic 

water rights claims—approximately 23,000 AFY—and settling for 

11,927.51 AFY of depletion rights. As Commissioner Connor emphasizes, ‘‘[t]his is very valuable water’’ that ‘‘has been estimated 

to be as much as $10,500 to $12,000 per acre-foot of consumptive 

use’’ (Connor letter at 2). Simple math therefore suggests the value 

of this ‘‘tremendous compromise’’ (Administration Testimony at 4) 

ranges over $240 million—far in excess of the settlement funding 

for the Pueblo of $88 million and the total federal settlement funding of $121 million. The Administration further recognizes there is 

‘‘no guarantee that the Pueblo will be able to acquire enough statebased water to put all its forborne water rights to use’’ (Connor letter at 1–2). As Commissioner Connor has noted, ‘‘[t]he United 

States participated actively in the negotiations . . . and was able 

to resolve most issues of concern to the Government’’ (Administration Testimony at 3). ‘‘The willingness of the Pueblo, in particular, 

to agree to reasonable and necessary compromises has been impressive’’ (id). Several of our additional significant compromises 


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and the associated core settlement components are summarized in 

the Administration Testimony under ‘‘Provisions that the Administration Supports’’: 

• Waivers and releases of claims (Administration Testimony at 

4); 

• Funding for the ‘‘central and noteworthy’’ protection of our sacred Buffalo Pasture (id. at 4); 

• ‘‘Perhaps the most significant positive attribute of the negotiated settlement is that it solidifies and makes permanent 

many water sharing arrangements that the Pueblo and its 

non-Indian neighbors have struggled for years to establish’’ (id. 

at 5); and 

• ‘‘Overall, it provides some innovative mechanisms for managing water in Taos Valley to satisfy the Pueblo’s current and 

future water needs, while minimizing disruption to non-Indian 

water users’’ (id. at 6). 

We have made further compromises to address the current Administration’s concerns through amendments (1) deleting the exemption from Secretarial approval of subcontracts of San JuanChama Project (SJCP) water for terms less than 7 years in Section 

7(e)(2), and (2) extending the time for the Secretary to enter into 

the SJCP contracts to six months after enactment. We appreciate 

that the Administration presented its views in the context of its 

support for the fundamental terms of the settlement and the Pueblo’s substantial compromises and leadership. Our views and the 

steps we have taken to address the Administration’s four remaining concerns are as follows: 

1. ‘‘A closer look’’ at the costs of the settlement and the 

United States’’ share has shown they are reasonable and 

appropriate 

A close look at the costs of the settlement and the share of costs 

borne by the United States was taken by the Federal Administration during the many years of settlement negotiations at which the 

Department of the Interior and the Department of Justice were at 

the settlement negotiations table. In addition, in April 2007, Taos 

Pueblo provided the Federal Administration an updated estimate 

and justification for the Pueblo’s settlement funds and the other 

local parties provided updated cost estimates for the Mutual-Benefit Projects. 

2. The early timing of a portion of Pueblo settlement funding is necessary to the linchpin components of this settlement that the Administration supports 

The Administration notes that ‘‘providing early settlement benefits is not good public policy,’’ and acknowledges that ‘‘[l]imited departure from this practice may sometimes be appropriate’’ (Connor 

letter at 2). Such a limited departure is appropriate and justified 

in this case because of the tight connection between the purposes 

and amount of the early funding and the innovative settlement 

mechanisms at the core of the settlement that are supported by the 

Administration as illustrated by the following examples (totaling 

approximately the $25 million authorized by S. 965): 


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• ‘‘The Department understands the Pueblo’s need for immediate 

access to funds, especially to halt deterioration of the condition 

of the Buffalo Pasture’’ (Connor letter at 3), which is included 

in the early funding purposes (Sections 5(a), 5(d)(1) and 

6(f)(1)); 

• Early funding purposes include acquiring water rights to meet 

the critical initial target level of exercise of our Historically Irrigated Acreage water rights and the staffing needed for the 

many other water sharing arrangements which the Administration supports (see Administration Testimony at 5); 

• Early funding for water infrastructure (Sections 5(a)(1), 5(d), 

and 6(f)(1)) includes the irrigation infrastructure improvements 

needed to enable us to reach the HIA initial target; and 

• Certain Pueblo drinking water infrastructure problems identified by the Indian Health Service as in need of urgent attention are eligible for this early funding. 

While the dollar amount of the early funding is greater than that 

of settlements dating back six and ten years ago, it is commonly 

known that the costs of water rights, for instance, have dramatically increased, and the overall costs of the Taos settlement are 

quite modest in comparison with enacted and pending Indian water 

rights settlements, especially given the claims we are waiving. The 

existing language in Section 10(h)(3) allows the United States the 

right ‘‘to set off any funds expended or withdrawn’’ from the early 

funding for water rights purchases and other early funding purposes ‘‘against any claims asserted by the Pueblo against the 

United States relating to water rights in the Taos Valley.’’ Although we believe this sufficiently addresses the Administration’s 

concern ‘‘that no entity can benefit if the settlement fails’’ (Connor 

letter at 2), we welcome their suggestions for clarification. 

3. The remaining exemption from Secretarial approval of 

leases of water rights appurtenant to tribal lands is consistent with exceptions in recent settlement legislation 

We agreed to the Administration’s request to eliminate the exemption in Section (7)(e)(2) from Secretarial approval for subcontracts of our SJCP contract rights. Since the Administration’s 

additional concern about the short-term lease exemption came to 

light, we have explained why retaining the exemption for leases of 

less than 7 years is consistent with precedent, policy and practice 

(compare Pub. L. No. 111–11, § 10701(d) (no Secretarial approval 

required for Navajo Nation leases, contracts or other transfers of 

water rights not under federal water contract) with id. 

§ 10701(c)(1)(B) (Secretarial approval required for subcontracts of 

federal contract water); see also Snake River Water Rights Act of 

2004, Pub. L. No 108–447, § 7(g) (subject to Water Code and without further approval of the Secretary, Snake River Tribe may lease 

reserved water right through state water bank). We appreciate that 

the Secretary’s Office of Indian Water Rights is engaged with us 

in reviewing these and other comparable exceptions from the 

‘‘standard practice’’ (Connor letter at 3). 


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4. The limited waiver of sovereign immunity in Section 

12(a) is appropriate 

Section 12(a) was revisited at length in our negotiation of waivers and releases of claims with the Departments of Justice and Interior last fall. Rather than ‘‘engender additional litigation’’ (Connor letter at 3), we believe the limited waiver in Section 12(a) ‘‘if 

any Party to the Settlement Agreement brings an action in any 

court of competent jurisdiction over the subject matter relating only 

and directly to the interpretation or enforcement of the Settlement 

Agreement or this Act . . . for the limited and sole purpose of such 

interpretation or enforcement’’ will avoid future frivolous litigation 

over whether the McCarran Amendment, 43 U.S.C. § 666, which 

waived the United States’ sovereign immunity for ‘‘adjudication’’ 

and ‘‘administration’’ of water rights, also waived immunity from 

suits to enforce water rights settlements. Moreover, similar provisions to Section 12(a) have been enacted for other Indian water 

rights settlements. 

TOM UDALL. 

Æ 


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