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[Congressional Bills 110th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5293 Received in Senate (RDS)]

  2d Session
                                H. R. 5293

_______________________________________________________________________

                   IN THE SENATE OF THE UNITED STATES

           September 22 (legislative day, September 17), 2008

                                Received

_______________________________________________________________________

                                 AN ACT

 
 To approve the settlement of the water rights claims of the Shoshone-
Paiute Tribes of the Duck Valley Reservation in Nevada, to require the 
 Secretary of the Interior to carry out the settlement, and for other 
                               purposes.

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

SECTION 1. SHORT TITLE.

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

SEC. 2. FINDINGS.

    Congress finds that--
            (1) it is the policy of the United States, in accordance 
        with the trust responsibility of the United States to Indian 
        tribes, to promote Indian self-determination and economic self-
        sufficiency and to settle Indian water rights claims without 
        lengthy and costly litigation, if practicable;
            (2) quantifying rights to water and development of 
        facilities needed to use tribal water supplies is essential to 
        the development of viable Indian reservation economies and the 
        establishment of a permanent reservation homeland;
            (3) uncertainty concerning the extent of the Shoshone-
        Paiute Tribes' water rights has resulted in limited access to 
        water and inadequate financial resources necessary to achieve 
        self-determination and self-sufficiency;
            (4) in 2006, the Tribes, the State of Idaho, the affected 
        individual water users, and the United States resolved all 
        tribal claims to water rights in the Snake River Basin 
        Adjudication through a consent decree entered by the District 
        Court of the Fifth Judicial District of the State of Idaho, 
        requiring no further Federal action to quantify the Tribes' 
        water rights in the State of Idaho;
            (5) as of the date of enactment of this Act, proceedings to 
        determine the extent and nature of the water rights of the 
        Tribes in the East Fork of the Owyhee River in Nevada are 
        pending before the Nevada State Engineer;
            (6) final resolution of the Tribes' water claims in the 
        East Fork of the Owyhee River adjudication will--
                    (A) take many years;
                    (B) entail great expense;
                    (C) continue to limit the access of the Tribes to 
                water, with economic and social consequences;
                    (D) prolong uncertainty relating to the 
                availability of water supplies; and
                    (E) seriously impair long-term economic planning 
                and development for all parties to the litigation;
            (7) after many years of negotiation, the Tribes, the State, 
        and the upstream water users have entered into a settlement 
        agreement to resolve permanently all water rights of the Tribes 
        in the State; and
            (8) the Tribes also seek to resolve certain water-related 
        claims for damages against the United States.

SEC. 3. PURPOSES.

    The purposes of this Act are--
            (1) to resolve outstanding issues with respect to the East 
        Fork of the Owyhee River in the State in such a manner as to 
        provide important benefits to--
                    (A) the United States;
                    (B) the State;
                    (C) the Tribes; and
                    (D) the upstream water users;
            (2) to achieve a fair, equitable, and final settlement of 
        all claims of the Tribes, members of the Tribes, and the United 
        States on behalf of the Tribes and members of Tribes to the 
        waters of the East Fork of the Owyhee River in the State;
            (3) to ratify and provide for the enforcement of the 
        Agreement among the parties to the litigation;
            (4) to resolve the Tribes' water-related claims for damages 
        against the United States;
            (5) to require the Secretary to perform all obligations of 
        the Secretary under the Agreement and this Act; and
            (6) to authorize the actions and appropriations necessary 
        to meet the obligations of the United States under the 
        Agreement and this Act.

SEC. 4. DEFINITIONS.

    In this Act:
            (1) Agreement.--The term ``Agreement'' means the agreement 
        entitled the ``Agreement to Establish the Relative Water Rights 
        of the Shoshone-Paiute Tribes of the Duck Valley Reservation 
        and the Upstream Water Users, East Fork Owyhee River'' and 
        signed in counterpart between, on, or about September 22, 2006, 
        and January 15, 2007 (including all attachments to that 
        Agreement).
            (2) Development fund.--The term ``Development Fund'' means 
        the Shoshone-Paiute Tribes Water Rights Development Fund 
        established by section 8(b)(1).
            (3) East fork of the owyhee river.--The term ``East Fork of 
        the Owyhee River'' means the portion of the east fork of the 
        Owyhee River that is located in the State.
            (4) Maintenance fund.--The term ``Maintenance Fund'' means 
        the Shoshone-Paiute Tribes Operation and Maintenance Fund 
        established by section 8(c)(1).
            (5) Reservation.--The term ``Reservation'' means the Duck 
        Valley Reservation established by the Executive order dated 
        April 16, 1877, as adjusted pursuant to the Executive order 
        dated May 4, 1886, and Executive order numbered 1222 and dated 
        July 1, 1910, for use and occupation by the Western Shoshones 
        and the Paddy Cap Band of Paiutes.
            (6) Secretary.--The term ``Secretary'' means the Secretary 
        of the Interior.
            (7) State.--The term ``State'' means the State of Nevada.
            (8) Tribal water rights.--The term ``tribal water rights'' 
        means rights of the Tribes described in the Agreement relating 
        to water, including groundwater, storage water, and surface 
        water.
            (9) Tribes.--The term ``Tribes'' means the Shoshone-Paiute 
        Tribes of the Duck Valley Reservation.
            (10) Upstream water user.--The term ``upstream water user'' 
        means a non-Federal water user that--
                    (A) is located upstream from the Reservation on the 
                East Fork of the Owyhee River; and
                    (B) is a signatory to the Agreement as a party to 
                the East Fork of the Owyhee River adjudication.

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

    (a) In General.--Except as provided in subsection (c) and except to 
the extent that the Agreement otherwise conflicts with provisions of 
this Act, the Agreement is approved, ratified, and confirmed.
    (b) Secretarial Authorization.--The Secretary is authorized and 
directed to execute the Agreement as approved by Congress.
    (c) Exception for Tribal Water Marketing.--Notwithstanding any 
language in the Agreement to the contrary, nothing in this Act 
authorizes the Tribes to use or authorize others to use tribal water 
rights off the Reservation, other than use for storage at Wild Horse 
Reservoir for use on tribal land and for the allocation of 265 acre 
feet to upstream water users under the Agreement, or use on tribal land 
off the Reservation.
    (d) Environmental Compliance.--Execution of the Agreement by the 
Secretary under this section shall not constitute major Federal action 
under the National Environmental Policy Act (42 U.S.C. 4321 et seq.). 
The Secretary shall carry out all environmental compliance required by 
Federal law in implementing the Agreement.
    (e) Performance of Obligations.--The Secretary and any other head 
of a Federal agency obligated under the Agreement shall perform actions 
necessary to carry out an obligation under the Agreement in accordance 
with this Act.

SEC. 6. TRIBAL WATER RIGHTS.

    (a) In General.--Tribal water rights shall be held in trust by the 
United States for the benefit of the Tribes.
    (b) Administration.--
            (1) Enactment of water code.--Not later than 3 years after 
        the date of enactment of this Act, the Tribes, in accordance 
        with provisions of the Tribes' constitution and subject to the 
        approval of the Secretary, shall enact a water code to 
        administer tribal water rights.
            (2) Interim administration.--The Secretary shall regulate 
        the tribal water rights during the period beginning on the date 
        of enactment of this Act and ending on the date on which the 
        Tribes enact a water code under paragraph (1).
    (c) Tribal Water Rights Not Subject to Loss.--The tribal water 
rights shall not be subject to loss by abandonment, forfeiture, or 
nonuse.

SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT.

    (a) Status of the Duck Valley Indian Irrigation Project.--Nothing 
in this Act shall affect the status of the Duck Valley Indian 
Irrigation Project under Federal law.
    (b) Capital Costs Nonreimbursable.--The capital costs associated 
with the Duck Valley Indian Irrigation Project as of the date of 
enactment of this Act, including any capital cost incurred with funds 
distributed under this Act for the Duck Valley Indian Irrigation 
Project, shall be nonreimbursable.

SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS.

    (a) Definition of Funds.--In this section, the term ``Funds'' 
means--
            (1) the Development Fund; and
            (2) the Maintenance Fund.
    (b) Development Fund.--
            (1) Establishment.--There is established in the Treasury of 
        the United States a fund to be known as the ``Shoshone-Paiute 
        Tribes Water Rights Development Fund''.
            (2) Use of funds.--
                    (A) Priority use of funds for rehabilitation.--The 
                Tribes shall use amounts in the Development Fund to--
                            (i) rehabilitate the Duck Valley Indian 
                        Irrigation Project; or
                            (ii) for other purposes under subparagraph 
                        (B), provided that the Tribes have given 
                        written notification to the Secretary that--
                                    (I) the Duck Valley Indian 
                                Irrigation Project has been 
                                rehabilitated to an acceptable 
                                condition; or
                                    (II) sufficient funds will remain 
                                available from the Development Fund to 
                                rehabilitate the Duck Valley Indian 
                                Irrigation Project to an acceptable 
                                condition after expending funds for 
                                other purposes under subparagraph (B).
                    (B) Other uses of funds.--Once the Tribes have 
                provided written notification as provided in 
                subparagraph (A)(ii)(I) or (A)(ii)(II), the Tribes may 
                use amounts from the Development Fund for any of the 
                following purposes:
                            (i) To expand the Duck Valley Indian 
                        Irrigation Project.
                            (ii) To pay or reimburse costs incurred by 
                        the Tribes in acquiring land and water rights.
                            (iii) For purposes of cultural 
                        preservation.
                            (iv) To restore or improve fish or wildlife 
                        habitat.
                            (v) For fish or wildlife production, water 
                        resource development, or agricultural 
                        development.
                            (vi) For water resource planning and 
                        development.
                            (vii) To pay the costs of--
                                    (I) designing and constructing 
                                water supply and sewer systems for 
                                tribal communities, including a water 
                                quality testing laboratory;
                                    (II) other appropriate water-
                                related projects and other related 
                                economic development projects;
                                    (III) the development of a water 
                                code; and
                                    (IV) other costs of implementing 
                                the Agreement.
            (3) Authorization of appropriations.--For each of fiscal 
        years 2009 through 2013, there is authorized to be appropriated 
        to the Secretary for deposit in the Development Fund an amount 
        equal to the sum of--
                    (A) $9,000,000; and
                    (B) the interest that would have accrued during the 
                preceding fiscal year on balances held in the 
                Development Fund, as calculated using the applicable 
                rate for interest-bearing obligations of the United 
                States.
    (c) Maintenance Fund.--
            (1) Establishment.--There is established in the Treasury of 
        the United States a fund to be known as the ``Shoshone-Paiute 
        Tribes Operation and Maintenance Fund''.
            (2) Use of funds.--The Tribes shall use amounts in the 
        Maintenance Fund to pay or provide reimbursement for--
                    (A) operation, maintenance, and replacement costs 
                of the Duck Valley Indian Irrigation Project and other 
                water-related projects funded under this Act; or
                    (B) operation, maintenance, and replacement costs 
                of water supply and sewer systems for tribal 
                communities, including the operation and maintenance 
                costs of a water quality testing laboratory.
            (3) Authorization of appropriations.--For each of fiscal 
        years 2009 through 2013, there is authorized to be appropriated 
        to the Secretary for deposit in the Maintenance Fund an amount 
        equal to the sum of--
                    (A) $3,000,000; and
                    (B) the interest that would have accrued during the 
                preceding fiscal year on balances held in the 
                Maintenance Fund, as calculated using the applicable 
                rate for interest-bearing obligations of the United 
                States.
    (d) Estimate of Accrued Interest.--The President's budget 
submission shall include an estimate of the amount of interest that 
would have accrued under the subsections (b)(3)(B), (c)(3)(B), and 
(e)(2).
    (e) Additional Authorization of Appropriations of Interest.--
            (1) In general.--There is authorized to be appropriated an 
        amount equal to the additional interest that would have accrued 
        on amounts in the Funds during the period beginning on the date 
        of completion of the event described in section 9(d)(3) and 
        ending on the later of--
                    (A) the date of completion of the event described 
                in section 9(d)(1); or
                    (B) the date of completion of the event described 
                in section 9(d)(2).
            (2) Calculation.--The interest authorized to be 
        appropriated under paragraph (1) shall be calculated using the 
        applicable rate for interest-bearing obligations of the United 
        States.
    (f) Availability of Amounts From Funds.--Amounts made available 
under subsections (b)(3), (c)(3), and (e) shall be available for 
expenditure or withdrawal only after the effective date as set forth in 
section 9(d).
    (g) Administration of Funds.--Upon completion of the actions 
described in section 9(d), the Secretary, in accordance with the 
American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C. 
4001 et seq.) shall manage the Funds, including by investing amounts 
from the Funds in accordance with the Act of April 1, 1880 (25 U.S.C. 
161), and the first section of the Act of June 24, 1938 (25 U.S.C. 
162a).
    (h) Expenditures and Withdrawal.--
            (1) Tribal management plan.--
                    (A) In general.--The Tribes may withdraw all or 
                part of amounts in the Funds on approval by the 
                Secretary of a tribal management plan as described in 
                the American Indian Trust Fund Management Reform Act of 
                1994 (25 U.S.C. 4001 et seq.).
                    (B) Requirements.--In addition to the requirements 
                under the American Indian Trust Fund Management Reform 
                Act of 1994 (25 U.S.C. 4001 et seq.), the tribal 
                management plan shall require that the Tribes spend any 
                amounts withdrawn from the Funds in accordance with the 
                purposes described in subsection (b)(2) or (c)(2).
                    (C) Enforcement.--The Secretary may take judicial 
                or administrative action to enforce the provisions of 
                any tribal management plan to ensure that any amounts 
                withdrawn from the Funds under the plan are used in 
                accordance with this Act and the Agreement.
                    (D) Liability.--If the Tribes exercise the right to 
                withdraw amounts from the Funds, neither the Secretary 
                nor the Secretary of the Treasury shall retain any 
                liability for the expenditure or investment of the 
                amounts.
            (2) Expenditure plan.--
                    (A) In general.--The Tribes shall submit to the 
                Secretary for approval an expenditure plan for any 
                portion of the amounts in the Funds that the Tribes do 
                not withdraw under the tribal management plan.
                    (B) Description.--The expenditure plan shall 
                describe the manner in which, and the purposes for 
                which, amounts of the Tribes remaining in the Funds 
                will be used.
                    (C) Approval.--On receipt of an expenditure plan 
                under subparagraph (A), the Secretary shall approve the 
                plan if the Secretary determines that the plan is 
                reasonable and consistent with this Act and the 
                Agreement.
                    (D) Annual report.--For each Fund, the Tribes shall 
                submit to the Secretary an annual report that describes 
                all expenditures from the Fund during the year covered 
                by the report.
            (3) Funding agreement.--Notwithstanding any other provision 
        of this Act, on receipt of a request from the Tribes, the 
        Secretary shall include an amount from funds made available 
        under this section in the funding agreement of the Tribes under 
        title IV of the Indian Self-Determination and Education 
        Assistance Act (25 U.S.C. 458aa et seq.), for use in accordance 
        with subsections (b)(2) and (c)(2). No amount made available 
        under this Act may be requested until the waivers under section 
        9(a) take effect.
    (i) No Per Capita Payments.--No amount from the Funds (including 
any amounts appropriated under subsections (b)(3)(B), (c)(3)(B), and 
(e)(1) for interest income that would have accrued to the Funds) shall 
be distributed to a member of the Tribes on a per capita basis.

SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS.

    (a) Waiver and Release of Claims by Tribes and United States Acting 
as Trustee for Tribes.--In return for recognition of the Tribes' water 
rights and other benefits as set forth in the Agreement and this Act, 
the Tribes, on behalf of themselves and their members, and the United 
States acting in its capacity as trustee for the Tribes are authorized 
to execute a waiver and release of--
            (1) all claims for water rights in the State of Nevada that 
        the Tribes, or the United States acting in its capacity as 
        trustee for the Tribes, asserted, or could have asserted, in 
        any proceeding, including pending proceedings before the Nevada 
        State Engineer to determine the extent and nature of the water 
        rights of the Tribes in the East Fork of the Owyhee River in 
        Nevada, up to and including the effective date, except to the 
        extent that such rights are recognized in the Agreement or this 
        Act; and
            (2) all claims for damages, losses or injuries to water 
        rights or claims of interference with, diversion or taking of 
        water rights (including claims for injury to lands resulting 
        from such damages, losses, injuries, interference with, 
        diversion, or taking of water rights) within the State of 
        Nevada that first accrued at any time up to and including the 
        effective date.
    (b) Waiver and Release of Claims by Tribes Against United States.--
The Tribes, on behalf of themselves and their members, are authorized 
to execute a waiver and release of--
            (1) all claims against the United States, its agencies, or 
        employees, relating in any manner to claims for water rights in 
        or water of the States of Nevada and Idaho that the United 
        States acting in its capacity as trustee for the Tribes 
        asserted, or could have asserted, in any proceeding, including 
        pending proceedings before the Nevada State Engineer to 
        determine the extent and nature of the water rights of the 
        Tribes in the East Fork of the Owyhee River in Nevada, or the 
        Snake River Basin Adjudication in Idaho;
            (2) all claims against the United States, its agencies, or 
        employees relating in any manner to damages, losses, or 
        injuries to water, water rights, land, or other resources due 
        to loss of water or water rights (including damages, losses or 
        injuries to fishing and other similar rights due to loss of 
        water or water rights; claims relating to interference with, 
        diversion or taking of water; or claims relating to failure to 
        protect, acquire, replace, or develop water, water rights or 
        water infrastructure) within the States of Nevada and Idaho 
        that first accrued at any time up to and including the 
        effective date;
            (3) all claims against the United States, its agencies, or 
        employees relating to the operation, maintenance, or 
        rehabilitation of the Duck Valley Indian Irrigation Project 
        that first accrued at any time up to and including the date 
        upon which the Tribes notify the Secretary as provided in 
        section 8(b)(2)(A)(ii)(I) that the rehabilitation of the Duck 
        Valley Indian Irrigation Project under this Act to an 
        acceptable level has been accomplished;
            (4) all claims against the United States, its agencies, or 
        employees relating in any manner to the litigation of claims 
        relating to the Tribes' water rights in pending proceedings 
        before the Nevada State Engineer to determine the extent and 
        nature of the water rights of the Tribes in the East Fork of 
        the Owyhee River in Nevada or the Snake River Basin 
        Adjudication in Idaho; and
            (5) all claims against the United States, its agencies, or 
        employees relating in any manner to the negotiation, execution, 
        or adoption of the Agreement, exhibits thereto, the decree 
        referred to in subsection (d)(2), or this Act.
    (c) Reservation of Rights and Retention of Claims.--Notwithstanding 
the waivers and releases authorized in this Act, the Tribes on their 
own behalf and the United States acting in its capacity as trustee for 
the Tribes retain--
            (1) all claims for enforcement of the Agreement, the decree 
        referred to in subsection (d)(2), or this Act, through such 
        legal and equitable remedies as may be available in the decree 
        court or the appropriate Federal court;
            (2) all rights to acquire a water right in a State to the 
        same extent as any other entity in the State, in accordance 
        with State law, and to use and protect water rights acquired 
        after the date of enactment of this Act;
            (3) all claims relating to activities affecting the quality 
        of water including any claims the Tribes might have under the 
        Comprehensive Environmental Response, Compensation, and 
        Liability Act of 1980 (42 U.S.C. 9601 et seq.) (including 
        claims for damages to natural resources), the Safe Drinking 
        Water Act (42 U.S.C. 300f et seq.), the Federal Water Pollution 
        Control Act (33 U.S.C. 1251 et seq.), and the regulations 
        implementing those Acts; and
            (4) all rights, remedies, privileges, immunities, and 
        powers not specifically waived and released pursuant to this 
        Act.
    (d) Effective Date.--Notwithstanding anything in the Agreement to 
the contrary, the waivers by the Tribes, or the United States on behalf 
of the Tribes, under this section shall take effect on the date on 
which the Secretary publishes in the Federal Register a statement of 
findings that includes a finding that--
            (1) the Agreement and the waivers and releases authorized 
        and set forth in subsections (a) and (b) have been executed by 
        the parties and the Secretary;
            (2) the Fourth Judicial District Court, Elko County, 
        Nevada, has issued a judgment and decree consistent with the 
        Agreement from which no further appeal can be taken; and
            (3) the amounts authorized under subsections (b)(3) and 
        (c)(3) of section 8 have been appropriated.
    (e) Failure To Publish Statement of Findings.--If the Secretary 
does not publish a statement of findings under subsection (d) by March 
31, 2016--
            (1) the Agreement and this Act shall not take effect; and
            (2) any funds and interest accrued thereon that have been 
        appropriated under this Act shall immediately revert to the 
        general fund of the United States Treasury.
    (f) Tolling of Claims.--
            (1) In general.--Each applicable period of limitation and 
        time-based equitable defense relating to a claim described in 
        this section shall be tolled for the period beginning on the 
        date of enactment of this Act and ending on the date on which 
        the amounts authorized to be appropriated under subsections 
        (b)(3) and (c)(3) of section 8 are appropriated.
            (2) Effect of subparagraph.--Nothing in this subparagraph 
        revives any claim or tolls any period of limitation or time-
        based equitable defense that expired before the date of 
        enactment of this Act.

SEC. 10. MISCELLANEOUS.

    (a) General Disclaimer.--The parties to the Agreement expressly 
reserve all rights not specifically granted, recognized, or 
relinquished by--
            (1) the settlement described in the Agreement; or
            (2) this Act.
    (b) Limitation of Claims and Rights.--Nothing in this Act--
            (1) establishes a standard for quantifying--
                    (A) a Federal reserved water right;
                    (B) an aboriginal claim; or
                    (C) any other water right claim of an Indian tribe 
                in a judicial or administrative proceeding;
            (2) affects the ability of the United States, acting in its 
        sovereign capacity, to take actions authorized by law, 
        including any laws relating to health, safety, or the 
        environment, including the Comprehensive Environmental 
        Response, Compensation, and Liability Act of 1980 (42 U.S.C. 
        9601 et seq.), the Safe Drinking Water Act (42 U.S.C. 300f et 
        seq.), the Federal Water Pollution Control Act (33 U.S.C. 1251 
        et seq.), the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.) 
        (commonly known as the ``Resource Conservation and Recovery Act 
        of 1976''), and the regulations implementing those Acts;
            (3) affects the ability of the United States to take 
        actions, acting in its capacity as trustee for any other Tribe, 
        Pueblo, or allottee;
            (4) waives any claim of a member of the Tribes in an 
        individual capacity that does not derive from a right of the 
        Tribes; or
            (5) limits the right of a party to the Agreement to 
        litigate any issue not resolved by the Agreement or this Act.
    (c) Admission Against Interest.--Nothing in this Act constitutes an 
admission against interest by a party in any legal proceeding.
    (d) Reservation.--The Reservation shall be--
            (1) considered to be the property of the Tribes; and
            (2) permanently held in trust by the United States for the 
        sole use and benefit of the Tribes.
    (e) Jurisdiction.--
            (1) Subject matter jurisdiction.--Nothing in the Agreement 
        or this Act restricts, enlarges, or otherwise determines the 
        subject matter jurisdiction of any Federal, State, or tribal 
        court.
            (2) Civil or regulatory jurisdiction.--Nothing in the 
        Agreement or this Act impairs or impedes the exercise of any 
        civil or regulatory authority of the United States, the State, 
        or the Tribes.
            (3) Consent to jurisdiction.--The United States consents to 
        jurisdiction in a proper forum for purposes of enforcing the 
        provisions of the Agreement.
            (4) Effect of subsection.--Nothing in this subsection 
        confers jurisdiction on any State court to--
                    (A) interpret Federal law regarding the health, 
                safety, or the environment or determine the duties of 
                the United States or other parties pursuant to such 
                Federal law; or
                    (B) conduct judicial review of a Federal agency 
                action.

            Passed the House of Representatives September 17, 2008.

            Attest:

                                            LORRAINE C. MILLER,

                                                                 Clerk.
```