I

106TH CONGRESS

1ST SESSION H. R. 1944

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 HOUSE OF REPRESENTATIVES

MAY 26, 1999

Mr. SHADEGG introduced the following bill; which was referred to the

Committee on Resources

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. CONSTITUTIONAL AUTHORITY.

2 The Constitutional authority upon which this Act

3 rests is the power of Congress to regulate commerce with

4 foreign nations and among the Several States and with

5 the Indian tribes, as set forth in section 8 of Article I

6 of the United States Constitution.

7 SEC. 3. PURPOSE.

8 It is the purpose of this Act—

9 (1) to ratify, approve and confirm the Settle10 ment Agreement among the Gila River Indian Com11 munity, Phelps Dodge Corporation, and the United

12 States of America;

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

14 interior to execute and perform his duties under the

15 Settlement Agreement and this Act; and

16 (3) to authorize and direct the Secretary to per17 form certain actions which will assist in achieving a

18 settlement of the water rights claims of certain In19 dian tribes in the Little Colorado River Basin in Ari20 zona.

21 SEC. 4. DEFINITIONS.

22 As used in this Act, the following terms have the fol23 lowing meaning:

24 (1) ‘‘Allottees’’ shall mean the owners of bene25 ficial interests in allotted land within the Gila River

26 Indian Reservation.
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1 (2) ‘‘Blue Ridge Reservoir’’ means that Res2 ervoir in Navajo County, Arizona, owned by Phelps

3 Dodge, as more fully described in the Settlement

4 Agreement.

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

6 Project, a reclamation project constructed by the

7 United States pursuant to the Colorado River Basin

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

9 amended.

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

11 Water Conservation District, a political subdivision

12 of the State of Arizona, which has executed a con13 tract to repay to the United States the reimbursable

14 costs of the CAP.

15 (5) ‘‘Community’’ shall mean the Gila River In16 dian Community, an Indian community organized

17 under section 16 of the Indian Reorganization Act

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

19 the Secretary, and its members.

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

21 that contract between the Gila River Indian Commu22 nity and the United States, dated October 22, 1992,

23 providing for the delivery to the Gila River Indian

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

25 CAP water.
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1 (7) ‘‘Globe Equity No. 59’’ shall mean the de2 cree entered June 29, 1935, in that action styled as

3 The United States of America v. Gila Valley Irriga4 tion District, et al., Globe Equity No. 59 in the Dis5 trict Court of the United States in and for the Dis6 trict of Arizona, as amended and supplemented.

7 (8) ‘‘Hopi tribe’’ shall mean the federally recog8 nized Indian tribe of that name.

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

10 recognized Indian tribe of that name.

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

12 Corporation, a New York corporation, its subsidi13 aries, affiliates, predecessors, successors and assigns.

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

15 recognized Indian tribe of that name.

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

17 Indian Reservation, as it existed on the Initial Effec18 tive Date of the Settlement Agreement, as shown on

19 the map attached to the Settlement Agreement as

20 exhibit ‘‘B’’ thereto.

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

22 mean the federally recognized Indian tribe of that

23 name.

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

25 the Interior or his lawful designee.
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1 (15) ‘‘Settlement Agreement’’ shall mean that

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

3 Dodge, the Community and the United States.

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

5 Agricultural Improvement and Power District, a po6 litical subdivision of the State of Arizona, and the

7 Salt River Valley Water Users’ Association, an Ari8 zona corporation.

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

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

11 Community and of the Reservation; as trustee for

12 the Allottees and of allotted lands on the Reserva13 tion; and, with respect to section 5.2 of the Settle14 ment Agreement, in all other capacities required in

15 order to execute the agreements and other instru16 ments and to take the actions referred to in section

17 5.2 of the Settlement Agreement, including acting

18 for the part of Defense Plant Corporation.

19 SEC. 5. APPROVAL OF SETTLEMENT AGREEMENT.

20 The Settlement Agreement is ratified, approved and

21 confirmed. The Secretary shall execute the Settlement

22 Agreement within sixty days of the enactment of this Act

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

24 as provided herein and in the Settlement Agreement.
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1 SEC. 6. TRANSFER OF RESERVOIRS.

2 The Secretary shall take all actions specified in sec3 tion 5.0 of the Settlement Agreement necessary on the

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

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

6 once acquired by the Secretary, shall be held by the Sec7 retary in trust for the benefit of the Navajo Nation. In

8 connection with the Secretary’s performance of his obliga9 tions under section 5.0 of the Settlement Agreement, the

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

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

12 on behalf of each of them, are authorized to execute waiv13 ers of claims against Phelps Dodge and agreements not

14 to object to certain uses of water by Phelps Dodge in sub15 stantially the form of exhibits ‘‘E’’ and ‘‘J’’ to the Settle16 ment Agreement, which waivers and agreements are here17 by ratified, approved and confirmed. The Navajo Nation,

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

19 is further authorized to enter into an agreement with the

20 Arizona Game & Fish Department confirming a minimum

21 pool of water in Blue Ridge Reservoir and for other pur22 poses in substantially the form of exhibits ‘‘G’’ and ‘‘I’’

23 to the Settlement Agreement, which agreements are here24 by ratified, approved and confirmed.
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1 SEC. 7. REALLOCATION OF CAP WATER.

2 Simultaneously with the transfer of Blue Ridge Res3 ervoir to the United States as provided for in section 6

4 of this Act, the Secretary shall: (i) reallocate to the Com5 munity 12,000 acre-feet of the CAP water available to the

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

7 Law 101–628, 104 Stat. 4483; (ii) amend the Commu8 nity’s CAP Contract to include the CAP water reallocated

9 to the Community pursuant to this section; and, (iii)

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

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

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

13 other extension of, the Lease referred to in section 8 of

14 this Act.

15 (1) All water service capital charges and other

16 capital charges of any nature associated with the

17 CAP water reallocated to the Community pursuant

18 to this Act shall be non-reimbursable to the United

19 States by the Community.

20 (2) All water service capital charges and other

21 capital charges of any nature associated with 10,000

22 acre-feet of that CAP water currently available to

23 the Community under the Community’s CAP Con24 tract which shares a priority with 510,000 acre-feet

25 of non-Indian municipal and industrial CAP water
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1 shall be non-reimbursable to the United States by

2 the Community.

3 (3) For purposes of determining the allocation

4 and repayment of costs of the CAP as provided in

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

6 09245, amendment No. 1, between the United

7 States and CAWCD dated December 1, 1988, and

8 any amendment or revision thereof, all of the water

9 service capital charges and other capital charges of

10 any nature associated with the water described in

11 subsections 7(a) and 7(b) of this Act shall be non12 reimbursable and shall be excluded from CAWCD’s

13 repayment obligation.

14 (4) The United States shall either—

15 (A) not charge operation, maintenance,

16 and replacement (OM&R) charges to the Com17 munity on the first 8,000 acre-feet of CAP

18 water made available to the Community pursu19 ant to this Act, and shall itself pay any such

20 charges as are associated with such 8,000 acre21 feet of CAP water; or

22 (B) charge the Community only that por23 tion of the OM&R charges associated with elec24 trical energy pumping for the entire 12,000

25 acre-feet of CAP water made available to the
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1 Community pursuant to this Act, and shall

2 itself pay other OM&R charges associated with

3 such 12,000 acre-feet of CAP water.

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

5 to the Community pursuant to this Act is leased to

6 Phelps Dodge as provided for in section 8 of this

7 Act, the charges by the United States to Phelps

8 Dodge for such water when delivered under the

9 Lease shall be as provided in subsections (d)(1) or

10 (d)(2) of this section 6.

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

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

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

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

15 shall amend the Community’s CAP contract to re16 flect such reallocation, and shall enter into a con17 tract with Phelps Dodge for permanent service for

18 the delivery of such water to Phelps Dodge through

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

20 of all capital charges as provided in subsections 7(b)

21 and 7(c) of this Act. The United States shall charge

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

23 provided in either subsections 7(d)(1) or 7(d)(2)

24 hereof and shall itself pay such portions of the

25 OM&R charges as are not paid by Phelps Dodge.
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1 (7) The provisions of section 226 of Public Law

2 97–293 (96 Stat. 1273, 43 U.S.C. 485h(f)) shall not

3 apply to actions taken by the Secretary pursuant to

4 sections 7, 8, or 9 of this Act.

5 SEC. 8. CAP WATER LEASE.

6 The Lease referred to in section 7.0 of the Settlement

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

8 ratified, approved and confirmed. Notwithstanding the

9 preceding sentence, the Lease shall not be effective as to

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

11 Lease, until all environmental compliance associated with

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

13 and the exchange referred to in section 9 of this Act has

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

15 the Lease becomes effective, the Secretary and the Com16 munity may renew or extend the Lease at the end of the

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

18 for in the initial Lease, upon such terms as the Commu19 nity, the Secretary and Phelps Dodge may agree, provided

20 that any such renewal or extension shall not exceed 100

21 years in term. Subject to the completion of environmental

22 compliance, CAP water made available pursuant to the

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

24 provided for therein, including exchange for use in any

25 county in Arizona outside the CAWCD service area.
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1 SEC. 9. EXCHANGE AGREEMENT.

2 The Secretary and the Community are authorized to

3 enter into an exchange agreement with Phelps Dodge pur4 suant to which the CAP water leased to Phelps Dodge by

5 the Community under the Lease authorized under section

6 8 of this Act is delivered by Phelps Dodge to the Commu7 nity in return for the right to divert water from the Gila

8 River upstream of the Reservation. The term of any such

9 exchange agreement, if approved as required by this sec10 tion, shall be for 100 years, plus any additional term occa11 sioned by the exercise of the option contained in the Lease

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

13 The Secretary shall commence negotiations with respect

14 to the exchange agreement forthwith upon the enactment

15 of this Act and shall process all environmental compliance

16 associated with the exchange agreement and the Lease in

17 an expeditious manner. The Secretary shall not execute

18 the exchange agreement until all such environmental com19 pliance has been finally concluded as provided in the Set20 tlement Agreement and any necessary order approving the

21 exchange, or any aspect of the exchange, has been ob22 tained from the United States District Court in Globe Eq23 uity No. 59 and the order is final and subject to no further

24 appeal.
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1 SEC. 10. APPROVAL OF WAIVERS.

2 The waivers set forth in section 9.0 of the Settlement

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

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

5 Community and the Allottees, from and after the date ei6 ther of the conditions set forth in section 4(c) of the Set7 tlement Agreement occurs. The United States is author8 ized and directed to execute the Settlement Agreement on

9 behalf of the Allottees in its capacity as trustee for the

10 Allottees and of allotted lands on the Reservation, and the

11 Settlement Agreement shall be binding upon the Allottees.

12 SEC. 11. MISCELLANEOUS.

13 (a) Execution of the Settlement Agreement by the

14 Secretary as required by this Act, and the Secretary’s per15 formance of the actions necessary to acquire title to Blue

16 Ridge Reservoir for the benefit of the Navajo Nation pur17 suant to section 5.0 of the Settlement Agreement shall not

18 constitute major Federal actions under the National Envi19 ronmental Policy Act (42 U.S.C. 4321 et seq.). The Sec20 retary shall carry out all environmental compliance re21 quired by sections 8 and 9 of this Act. Nothing in this

22 Act shall be construed as exempting the United States

23 from carrying out environmental compliance associated

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

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

26 Little Colorado River Basin in Arizona.
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1 (b) The Navajo Nation, and the United States on be2 half of the Navajo Nation, are authorized to enter into

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

4 unincorporated communities of Pine and Strawberry, Ari5 zona (‘‘the Towns’’) or any one of them, to subordinate

6 water rights held in Blue Ridge Reservoir by the United

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

8 the use of not to exceed a cumulative total of 3,000 acre9 feet per annum of water in Blue Ridge Reservoir acquired

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

11 (c) The Navajo Nation, and the United States on be12 half of the Navajo Nation, are authorized to enter into

13 an agreement with Phelps Dodge to subordinate water

14 rights held in Blue Ridge Reservoir by the United States

15 on behalf of the Navajo Nation to water rights acquired

16 by Phelps Dodge in Blue Ridge Reservoir subsequent to

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

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

19 Dodge around Blue Ridge Reservoir identified in the Set20 tlement Agreement. The term of any such agreement and

21 the consideration to be paid therefor shall be as agreed

22 to among the Navajo Nation and Phelps Dodge.

23 (d) With regard to the environmental compliance re24 quired for the actions contemplated in sections 8 and 9

25 of this Act, the Bureau of Reclamation shall be designated
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1 as the lead agency, and shall coordinate and cooperate

2 with the other affected Federal agencies as required under

3 applicable Federal environmental laws.

4 (e) The Secretary and the Community are authorized

5 to execute any amendments of the Settlement Agreement

6 and to perform any action required by any amendments

7 to the Settlement Agreement which may be mutually

8 agreed upon by the parties.

9 (f) Except for the waivers authorized by section 6 of

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

11 shall be construed to quantify or otherwise affect the

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

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

14 River Adjudication, other than the Community, the United

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

16 Phelps Dodge.

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

18 the Lease and the exchange agreement referred to in sec19 tions 8 and 9 of this Act, respectively, if the same are

20 approved, may bring an action or actions exclusively in

21 the United States District Court for the District of Ari22 zona for the interpretation and enforcement of this Act,

23 the Settlement Agreement, the Lease and the exchange

24 agreement, naming the United States and the Community

25 as parties, and in any such action or actions, any claim
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1 by the United States or the Community to sovereign im2 munity from suit is hereby waived.

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