II

106TH CONGRESS

1ST SESSION S. 421

To approve a mutual settlement of the Water Rights of the Gila River

Indian Community and the United States, on behalf of the Community

and the Allottees, and Phelps Dodge Corporation, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 11, 1999

Mr. KYL (by request) introduced the following bill; which was read twice and

referred to the Committee on Indian Affairs

A BILL

To approve a mutual settlement of the Water Rights of

the Gila River Indian Community and the United States,

on behalf of the Community and the Allottees, and

Phelps Dodge Corporation, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This title may be cited as the ‘‘Gila River Indian

5 Community—Phelps Dodge Corporation Water Rights

6 Settlement Act of 1999’’ and is herein referred to as ‘‘this

7 Act’’.
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1 SEC. 2. PURPOSE.

2 It is the purpose of this Act—

3 (1) to ratify, approve and confirm the Settle4 ment Agreement among the Gila River Indian Com5 munity, Phelps Dodge Corporation, and the United

6 States of America;

7 (2) to authorize and direct the Secretary of the

8 interior to execute and perform his duties under the

9 Settlement Agreement and this Act; and

10 (3) to authorize and direct the Secretary to per11 form certain actions which will assist in achieving a

12 settlement of the water rights claims of certain In13 dian tribes in the Little Colorado River Basin in Ari14 zona.

15 SEC. 3. DEFINITIONS.

16 As used in this Act, the following terms have the fol17 lowing meaning:

18 (1) ‘‘Allottees’’ shall mean the owners of bene19 ficial interests in allotted land within the Gila River

20 Indian Reservation.

21 (2) ‘‘Blue Ridge Reservoir’’ means that Res22 ervoir in Navajo County, Arizona, owned by Phelps

23 Dodge, as more fully described in the Settlement

24 Agreement.

25 (3) ‘‘CAP’’ shall mean the Central Arizona

26 Project, a reclamation project constructed by the
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1 United States pursuant to the Colorado River Basin

2 Project Act of September 30, 1968, 82 Stat. 885, as

3 amended.

4 (4) ‘‘CAWCD’’ shall mean the Central Arizona

5 Water Conservation District, a political subdivision

6 of the State of Arizona, which has executed a con7 tract to repay to the United States the reimbursable

8 costs of the CAP.

9 (5) ‘‘Community’’ shall mean the Gila River In10 dian Community, an Indian community organized

11 under section 16 of the Indian Reorganization Act

12 of June 18, 1934, 48 Stat. 987, duly recognized by

13 the Secretary, and its members.

14 (6) ‘‘Community’s CAP Contract’’ shall mean

15 that contract between the Gila River Indian Commu16 nity and the United States, dated October 22, 1992,

17 providing for the delivery to the Gila River Indian

18 Community of up to 173,100 acre-feet per annum of

19 CAP water.

20 (7) ‘‘Globe Equity No. 59’’ shall mean the de21 cree entered June 29, 1935, in that action styled as

22 The United States of America v. Gila Valley Irriga23 tion District, et al., Globe Equity No. 59 in the Dis24 trict Court of the United States in and for the Dis25 trict of Arizona, as amended and supplemented.
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1 (8) ‘‘Hopi tribe’’ shall mean the federally recog2 nized Indian tribe of that name.

3 (9) ‘‘Navajo Nation’’ shall mean the federally

4 recognized Indian tribe of that name.

5 (10) ‘‘Phelps Dodge’’ shall mean Phelps Dodge

6 Corporation, a New York corporation, its subsidi7 aries, affiliates, predecessors, successors and assigns.

8 (11) ‘‘Pueblo of Zuni’’ shall mean the federally

9 recognized Indian tribe of that name.

10 (12) ‘‘Reservation’’ shall mean the Gila River

11 Indian Reservation, as it existed on the Initial Effec12 tive Date of the Settlement Agreement, as shown on

13 the map attached to the Settlement Agreement as

14 exhibit ‘‘B’’ thereto.

15 (13) ‘‘San Juan Southern Paiute Tribe’’ shall

16 mean the federally recognized Indian tribe of that

17 name.

18 (14) ‘‘Secretary’’ shall mean the Secretary of

19 the Interior or his lawful designee.

20 (15) ‘‘Settlement Agreement’’ shall mean that

21 agreement dated as of May 4, 1998, among Phelps

22 Dodge, the Community and the United States.

23 (16) ‘‘SRP’’ shall mean the Salt River Project

24 Agricultural Improvement and Power District, a po25 litical subdivision of the State of Arizona, and the
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1 Salt River Valley Water Users’ Association, an Ari2 zona corporation.

3 (17) ‘‘United States’’ shall mean the United

4 States of America, in its capacity as trustee for the

5 Community and of the Reservation; as trustee for

6 the Allottees and of allotted lands on the Reserva7 tion; and, with respect to section 5.2 of the Settle8 ment Agreement, in all other capacities required in

9 order to execute the agreements and other instru10 ments and to take the actions referred to in section

11 5.2 of the Settlement Agreement, including acting

12 for the part of Defense Plant Corporation.

13 SEC. 4. APPROVAL OF SETTLEMENT AGREEMENT.

14 The Settlement Agreement is ratified, approved and

15 confirmed. The Secretary shall execute the Settlement

16 Agreement within sixty days of the enactment of this Act

17 and shall perform all of the Secretary’s duties thereunder

18 as provided herein and in the Settlement Agreement.

19 SEC. 5. TRANSFER OF RESERVOIRS.

20 The Secretary shall take all actions specified in sec21 tion 5.0 of the Settlement Agreement necessary on the

22 Secretary’s part to obtain title to Blue Ridge Reservoir

23 from Phelps Dodge. The title to Blue Ridge Reservoir,

24 once acquired by the Secretary, shall be held by the Sec25 retary in trust for the benefit of the Navajo Nation. In
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1 connection with the Secretary’s performance of his obliga2 tions under section 5.0 of the Settlement Agreement, the

3 Navajo Nation, the Hopi Tribe, the San Juan Southern

4 Paiute Tribe, the Pueblo of Zuni, and the United States,

5 on behalf of each of them, are authorized to execute waiv6 ers of claims against Phelps Dodge and agreements not

7 to object to certain uses of water by Phelps Dodge in sub8 stantially the form of exhibits ‘‘E’’ and ‘‘J’’ to the Settle9 ment Agreement, which waivers and agreements are here10 by ratified, approved and confirmed. The Navajo Nation,

11 and the United States on behalf of the Navajo Nation,

12 is further authorized to enter into an agreement with the

13 Arizona Game & Fish Department confirming a minimum

14 pool of water in Blue Ridge Reservoir and for other pur15 poses in substantially the form of exhibits ‘‘G’’ and ‘‘I’’

16 to the Settlement Agreement, which agreements are here17 by ratified, approved and confirmed.

18 SEC. 6. REALLOCATION OF CAP WATER.

19 Simultaneously with the transfer of Blue Ridge Res20 ervoir to the United States as provided for in section 5

21 of this Act, the Secretary shall: (i) reallocate to the Com22 munity 12,000 acre-feet of the CAP water available to the

23 Secretary pursuant to section 406(b) of title IV of Public

24 Law 101–628, 104 Stat. 4483; (ii) amend the Commu25 nity’s CAP Contract to include the CAP water reallocated
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1 to the Community pursuant to this section 6; and, (iii)

2 amend the Community’s CAP Contract to extend the term

3 thereof to 100 years, plus such additional term as may

4 result from the exercise of the option provided for in, or

5 other extension of, the Lease referred to in section 7 of

6 this Act.

7 (1) All water service capital charges and other

8 capital charges of any nature associated with the

9 CAP water reallocated to the Community pursuant

10 to this section 6 shall be non-reimbursable to the

11 United States by the Community.

12 (2) All water service capital charges and other

13 capital charges of any nature associated with 10,000

14 acre-feet of that CAP water currently available to

15 the Community under the Community’s CAP Con16 tract which shares a priority with 510,000 acre-feet

17 of non-Indian municipal and industrial CAP water

18 shall be non-reimbursable to the United States by

19 the Community.

20 (3) For purposes of determining the allocation

21 and repayment of costs of the CAP as provided in

22 article 9.3 of Contract Number 14–0906–09W–

23 09245, amendment No. 1, between the United

24 States and CAWCD dated December 1, 1988, and

25 any amendment or revision thereof, all of the water
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1 service capital charges and other capital charges of

2 any nature associated with the water described in

3 subsections 6(a) and 6(b) hereof shall be non-reim4 bursable and shall be excluded from CAWCD’s re5 payment obligation.

6 (4) The United States shall either—

7 (A) not charge operation, maintenance,

8 and replacement (OM&R) charges to the Com9 munity on the first 8,000 acre-feet of CAP

10 water made available to the Community pursu11 ant to this Act, and shall itself pay any such

12 charges as are associated with such 8,000 acre13 feet of CAP water; or

14 (B) charge the Community only that por15 tion of the OM&R charges associated with elec16 trical energy pumping for the entire 12,000

17 acre-feet of CAP water made available to the

18 Community pursuant to this section 6, and

19 shall itself pay other OM&R charges associated

20 with such 12,000 acre-feet of CAP water.

21 (5) In the event the CAP water made available

22 to the Community pursuant to this Act is leased to

23 Phelps Dodge as provided for in section 7 hereof,

24 the charges by the United States to Phelps Dodge

25 for such water when delivered under the Lease shall
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1 be as provided in subsections (d)(1) or (d)(2) of this

2 section 6.

3 (6) In the event the exchange provided for in

4 section 8 of this Act is not approved, the Secretary

5 shall reallocate to Phelps Dodge 8,000 acre-feet of

6 the CAP water referred to in subsection 6(b) hereof,

7 shall amend the Community’s CAP contract to re8 flect such reallocation, and shall enter into a con9 tract with Phelps Dodge for permanent service for

10 the delivery of such water to Phelps Dodge through

11 the works of the CAP. The CAP water shall be free

12 of all capital charges as provided in subsections 6(b)

13 and 6(c) of this Act. The United States shall charge

14 Phelps Dodge OM&R charges for such water only as

15 provided in either subsections 6(d)(1) or 6(d)(2)

16 hereof and shall itself pay such portions of the

17 OM&R charges as are not paid by Phelps Dodge.

18 (7) The provisions of section 226 of Public Law

19 97–293 (96 Stat. 1273, 43 U.S.C. 485h(f)) shall not

20 apply to actions taken by the Secretary pursuant to

21 sections 6, 7 or 8 of this Act.

22 SEC. 7. CAP WATER LEASE.

23 The Lease referred to in section 7.0 of the Settlement

24 Agreement and attached thereto as exhibit ‘‘M’’ is hereby

25 ratified, approved and confirmed. Notwithstanding the
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1 preceding sentence, the Lease shall not be effective as to

2 the United States, and the Secretary shall not execute the

3 Lease, until all environmental compliance associated with

4 the Secretary’s execution of the Lease has been completed

5 and the exchange referred to in section 8 of this Act has

6 been approved as provided in that section. In the event

7 the Lease becomes effective, the Secretary and the Com8 munity may renew or extend the Lease at the end of the

9 initial term, or any extended term of the Lease provided

10 for in the initial Lease, upon such terms as the Commu11 nity, the Secretary and Phelps Dodge may agree, provided

12 that any such renewal or extension shall not exceed 100

13 years in term. Subject to the completion of environmental

14 compliance, CAP water made available pursuant to the

15 Lease may be used in the manner and at the locations

16 provided for therein, including exchange for use in any

17 county in Arizona outside the CAWCD service area.

18 SEC. 8. EXCHANGE AGREEMENT.

19 The Secretary and the Community are authorized to

20 enter into an exchange agreement with Phelps Dodge pur21 suant to which the CAP water leased to Phelps Dodge by

22 the Community under the Lease authorized under section

23 7 hereof is delivered by Phelps Dodge to the Community

24 in return for the right to divert water from the Gila River

25 upstream of the Reservation. The term of any such ex-
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1 change agreement, if approved as required by this section

2 8, shall be for 100 years, plus any additional term occa3 sioned by the exercise of the option contained in the Lease

4 or other extension authorized in the Lease or this Act.

5 The Secretary shall commence negotiations with respect

6 to the exchange agreement forthwith upon the enactment

7 of this Act and shall process all environmental compliance

8 associated with the exchange agreement and the Lease in

9 an expeditious manner. The Secretary shall not execute

10 the exchange agreement until all such environmental com11 pliance has been finally concluded as provided in the Set12 tlement Agreement and any necessary order approving the

13 exchange, or any aspect of the exchange, has been ob14 tained from the United States District Court in Globe Eq15 uity No. 59 and the order is final and subject to no further

16 appeal.

17 SEC. 9. APPROVAL OF WAIVERS.

18 The waivers set forth in section 9.0 of the Settlement

19 Agreement shall be effective, and shall be binding upon,

20 the Community, and the United States, on behalf of the

21 Community and the Allottees, from and after the date ei22 ther of the conditions set forth in section 4(c) of the Set23 tlement Agreement occurs. The United States is author24 ized and directed to execute the Settlement Agreement on

25 behalf of the Allottees in its capacity as trustee for the
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1 Allottees and of allotted lands on the Reservation, and the

2 Settlement Agreement shall be binding upon the Allottees.

3 SEC. 10. MISCELLANEOUS.

4 (a) Execution of the Settlement Agreement by the

5 Secretary as required by this Act, and the Secretary’s per6 formance of the actions necessary to acquire title to Blue

7 Ridge Reservoir for the benefit of the Navajo Nation pur8 suant to section 5.0 of the Settlement Agreement shall not

9 constitute major Federal actions under the National Envi10 ronmental Policy Act (42 U.S.C. 4321 et seq.). The Sec11 retary shall carry out all environmental compliance re12 quired by sections 7 and 8 of this Act. Nothing in this

13 Act shall be construed as exempting the United States

14 from carrying out environmental compliance associated

15 with the use of water from Blue Ridge Reservoir by the

16 United States for the benefit of the Navajo Nation in the

17 Little Colorado River Basin in Arizona.

18 (b) The Navajo Nation, and the United States on be19 half of the Navajo Nation, are authorized to enter into

20 an agreement with the Town of Payson, Arizona, and the

21 unincorporated communities of Pine and Strawberry, Ari22 zona (‘‘the Towns’’) or any one of them, to subordinate

23 water rights held in Blue Ridge Reservoir by the United

24 States for the benefit of the Navajo Nation to rights to

25 the use of not to exceed a cumulative total of 3,000 acre-
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1 feet per annum of water in Blue Ridge Reservoir acquired

2 by the Towns pursuant to the law of the State of Arizona.

3 (c) The Navajo Nation, and the United States on be4 half of the Navajo Nation, are authorized to enter into

5 an agreement with Phelps Dodge to subordinate water

6 rights held in Blue Ridge Reservoir by the United States

7 on behalf of the Navajo Nation to water rights acquired

8 by Phelps Dodge in Blue Ridge Reservoir subsequent to

9 the date of the enactment of this Act pursuant to the law

10 of the State of Arizona for use on land owned by Phelps

11 Dodge around Blue Ridge Reservoir identified in the Set12 tlement Agreement. The term of any such agreement and

13 the consideration to be paid therefor shall be as agreed

14 to among the Navajo Nation and Phelps Dodge.

15 (d) With regard to the environmental compliance re16 quired for the actions contemplated in sections 7 and 8

17 of this Act, the Bureau of Reclamation shall be designated

18 as the lead agency, and shall coordinate and cooperate

19 with the other affected Federal agencies as required under

20 applicable Federal environmental laws.

21 (e) The Secretary and the Community are authorized

22 to execute any amendments of the Settlement Agreement

23 and to perform any action required by any amendments

24 to the Settlement Agreement which may be mutually

25 agreed upon by the parties.
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1 (f) Except for the waivers authorized by section 5 of

2 this Act, nothing in this Act or the Settlement Agreement

3 shall be construed to quantify or otherwise affect the

4 water rights, claims or entitlement to water of any Arizona

5 tribe, band or community or of any claimant in the Gila

6 River Adjudication, other than the Community, the United

7 States on behalf of the Community and the Allottees, and

8 Phelps Dodge.

9 (g) Any party to the Settlement Agreement, and to

10 the Lease and the exchange agreement referred to in sec11 tions 7 and 8 hereof, respectively, if the same are ap12 proved, may bring an action or actions exclusively in the

13 United States District Court for the District of Arizona

14 for the interpretation and enforcement of this Act, the

15 Settlement Agreement, the Lease and the exchange agree16 ment, naming the United States and the Community as

17 parties, and in any such action or actions, any claim by

18 the United States or the Community to sovereign immu19 nity from suit is hereby waived.

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