IB 

Union Calendar No. 529 

110TH CONGRESS 

2D SESSION H. R. 5293 

[Report No. 110–815] 

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. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 7, 2008 

Mr. HELLER of Nevada introduced the following bill; which was referred to 

the Committee on Natural Resources 

JULY 31, 2008 

Additional sponsor: Ms. BERKLEY

JULY 31, 2008 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on February 7, 2008] 

A BILL 

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. 


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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 Act may be cited as the ‘‘Shoshone-Paiute Tribes 

5 of the Duck Valley Reservation Water Rights Settlement 

6 Act’’. 

7 SEC. 2. FINDINGS. 

8 Congress finds that— 

9 (1) it is the policy of the United States, in ac10 cordance with the trust responsibility of the United 

11 States to Indian tribes, to promote Indian self-deter12 mination and economic self-sufficiency and to settle 

13 Indian water rights claims without lengthy and costly 

14 litigation, if practicable; 

15 (2) quantifying rights to water and development 

16 of facilities needed to use tribal water supplies is es17 sential to the development of viable Indian reserva18 tion economies and the establishment of a permanent 

19 reservation homeland; 

20 (3) uncertainty concerning the extent of the Sho21 shone-Paiute Tribes’ water rights has resulted in lim22 ited access to water and inadequate financial re23 sources necessary to achieve self-determination and 

24 self-sufficiency; 


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1 (4) in 2006, the Tribes, the State of Idaho, the 

2 affected individual water users, and the United States 

3 resolved all tribal claims to water rights in the Snake 

4 River Basin Adjudication through a consent decree 

5 entered by the District Court of the Fifth Judicial 

6 District of the State of Idaho, requiring no further 

7 Federal action to quantify the Tribes’ water rights in 

8 the State of Idaho; 

9 (5) as of the date of enactment of this Act, pro10 ceedings to determine the extent and nature of the 

11 water rights of the Tribes in the East Fork of the 

12 Owyhee River in Nevada are pending before the Ne13 vada State Engineer; 

14 (6) final resolution of the Tribes’ water claims in 

15 the East Fork of the Owyhee River adjudication 

16 will— 

17 (A) take many years; 

18 (B) entail great expense; 

19 (C) continue to limit the access of the Tribes 

20 to water, with economic and social consequences; 

21 (D) prolong uncertainty relating to the 

22 availability of water supplies; and 

23 (E) seriously impair long-term economic 

24 planning and development for all parties to the 

25 litigation; 


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1 (7) after many years of negotiation, the Tribes, 

2 the State, and the upstream water users have entered 

3 into a settlement agreement to resolve permanently all 

4 water rights of the Tribes in the State; and 

5 (8) the Tribes also seek to resolve certain water6 related claims for damages against the United States. 

7 SEC. 3. PURPOSES. 

8 The purposes of this Act are— 

9 (1) to resolve outstanding issues with respect to 

10 the East Fork of the Owyhee River in the State in 

11 such a manner as to provide important benefits to— 

12 (A) the United States; 

13 (B) the State; 

14 (C) the Tribes; and 

15 (D) the upstream water users; 

16 (2) to achieve a fair, equitable, and final settle17 ment of all claims of the Tribes, members of the 

18 Tribes, and the United States on behalf of the Tribes 

19 and members of Tribes to the waters of the East Fork 

20 of the Owyhee River in the State; 

21 (3) to ratify and provide for the enforcement of 

22 the Agreement among the parties to the litigation; 

23 (4) to resolve the Tribes’ water-related claims for 

24 damages against the United States; 


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1 (5) to require the Secretary to perform all obli2 gations of the Secretary under the Agreement and this 

3 Act; and 

4 (6) to authorize the actions and appropriations 

5 necessary to meet the obligations of the United States 

6 under the Agreement and this Act. 

7 SEC. 4. DEFINITIONS. 

8 In this Act: 

9 (1) AGREEMENT.—The term ‘‘Agreement’’ means 

10 the agreement entitled the ‘‘Agreement to Establish 

11 the Relative Water Rights of the Shoshone-Paiute 

12 Tribes of the Duck Valley Reservation and the Up13 stream Water Users, East Fork Owyhee River’’ and 

14 signed in counterpart between, on, or about Sep15 tember 22, 2006, and January 15, 2007 (including 

16 all attachments to that Agreement). 

17 (2) DEVELOPMENT FUND.—The term ‘‘Develop18 ment Fund’’ means the Shoshone-Paiute Tribes Water 

19 Rights Development Fund established by section 

20 8(b)(1). 

21 (3) EAST FORK OF THE OWYHEE RIVER.—The 

22 term ‘‘East Fork of the Owyhee River’’ means the por23 tion of the east fork of the Owyhee River that is lo24 cated in the State. 


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1 (4) MAINTENANCE FUND.—The term ‘‘Mainte2 nance Fund’’ means the Shoshone-Paiute Tribes Op3 eration and Maintenance Fund established by section 

4 8(c)(1). 

5 (5) RESERVATION.—The term ‘‘Reservation’’ 

6 means the Duck Valley Reservation established by the 

7 Executive order dated April 16, 1877, as adjusted 

8 pursuant to the Executive order dated May 4, 1886, 

9 and Executive order numbered 1222 and dated July 

10 1, 1910, for use and occupation by the Western Sho11 shones and the Paddy Cap Band of Paiutes. 

12 (6) SECRETARY.—The term ‘‘Secretary’’ means 

13 the Secretary of the Interior. 

14 (7) STATE.—The term ‘‘State’’ means the State 

15 of Nevada. 

16 (8) TRIBAL WATER RIGHTS.—The term ‘‘tribal 

17 water rights’’ means rights of the Tribes described in 

18 the Agreement relating to water, including ground19 water, storage water, and surface water. 

20 (9) TRIBES.—The term ‘‘Tribes’’ means the Sho21 shone-Paiute Tribes of the Duck Valley Reservation. 

22 (10) UPSTREAM WATER USER.—The term ‘‘up23 stream water user’’ means a non-Federal water user 

24 that— 


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1 (A) is located upstream from the Reserva2 tion on the East Fork of the Owyhee River; and 

3 (B) is a signatory to the Agreement as a 

4 party to the East Fork of the Owyhee River ad5 judication. 

6 SEC. 5. APPROVAL, RATIFICATION, AND CONFIRMATION OF 

7 AGREEMENT; AUTHORIZATION. 

8 (a) IN GENERAL.—Except as provided in subsection 

9 (c) and except to the extent that the Agreement otherwise 

10 conflicts with provisions of this Act, the Agreement is ap11 proved, ratified, and confirmed. 

12 (b) SECRETARIAL AUTHORIZATION.—The Secretary is 

13 authorized and directed to execute the Agreement as ap14 proved by Congress. 

15 (c) EXCEPTION FOR TRIBAL WATER MARKETING.— 

16 Notwithstanding any language in the Agreement to the con17 trary, nothing in this Act authorizes the Tribes to use or 

18 authorize others to use tribal water rights off the Reserva19 tion, other than use for storage at Wild Horse Reservoir 

20 for use on tribal land and for the allocation of 265 acre 

21 feet to Upstream Water Users under the Agreement, or use 

22 on tribal land off the Reservation. 

23 (d) ENVIRONMENTAL COMPLIANCE.—Execution of the 

24 Agreement by the Secretary under this section shall not con25 stitute major Federal action under the National EnvironVerDate Aug 31 2005 03:33 Aug 01, 2008 Jkt 069200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6203 E:\BILLS\H5293.RH H5293

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1 mental Policy Act (42 U.S.C. 4321 et seq.). The Secretary 

2 shall carry out all environmental compliance required by 

3 Federal law in implementing the Agreement. 

4 (e) PERFORMANCE OF OBLIGATIONS.—The Secretary 

5 and any other head of a Federal agency obligated under 

6 the Agreement shall perform actions necessary to carry out 

7 an obligation under the Agreement in accordance with this 

8 Act. 

9 SEC. 6. TRIBAL WATER RIGHTS. 

10 (a) IN GENERAL.—Tribal water rights shall be held 

11 in trust by the United States for the benefit of the Tribes. 

12 (b) ADMINISTRATION.— 

13 (1) ENACTMENT OF WATER CODE.—Not later 

14 than 3 years after the date of enactment of this Act, 

15 the Tribes, in accordance with the provision of the 

16 Tribes’ constitution and subject to the approval of the 

17 Secretary, shall enact a water code to administer trib18 al water rights. 

19 (2) INTERIM ADMINISTRATION.—The Secretary 

20 shall regulate the tribal water rights during the pe21 riod beginning on the date of enactment of this Act 

22 and ending on the date on which the Tribes enact a 

23 water code under paragraph (1). 


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1 (c) TRIBAL WATER RIGHTS NOT SUBJECT TO LOSS.— 

2 The tribal water rights shall not be subject to loss by aban3 donment, forfeiture, or nonuse. 

4 SEC. 7. DUCK VALLEY INDIAN IRRIGATION PROJECT. 

5 (a) STATUS OF THE DUCK VALLEY INDIAN IRRIGATION

6 PROJECT.—Nothing in this Act shall affect the status of the 

7 Duck Valley Indian Irrigation Project under Federal law. 

8 (b) CAPITAL COSTS NONREIMBURSABLE.—The capital 

9 costs associated with the Duck Valley Indian Irrigation 

10 Project as the date of enactment of this Act, including any 

11 capital cost incurred with funds distributed under this Act 

12 for the Duck Valley Indian Irrigation Project, shall be non13 reimbursable. 

14 SEC. 8. DEVELOPMENT AND MAINTENANCE FUNDS. 

15 (a) DEFINITION OF FUNDS.—In this section, the term 

16 ‘‘Funds’’ means— 

17 (1) the Development Fund; and 

18 (2) the Maintenance Fund. 

19 (b) DEVELOPMENT FUND.— 

20 (1) ESTABLISHMENT.—There is established in 

21 the Treasury of the United States a fund to be known 

22 as the ‘‘Shoshone-Paiute Tribes Water Rights Devel23 opment Fund’’. 

24 (2) USE OF FUNDS.—The Tribes shall use 

25 amounts in the Development Fund to rehabilitate 


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1 and, if the Tribes choose, to expand the Duck Valley 

2 Indian Irrigation Project, or for any of the following 

3 purposes: 

4 (A) To pay or reimburse costs incurred by 

5 the Tribes in acquiring land and water rights. 

6 (B) For purposes of cultural preservation. 

7 (C) To restore or improve fish or wildlife 

8 habitat. 

9 (D) For fish or wildlife production, water 

10 resource development, or agricultural develop11 ment. 

12 (E) For water resource planning and devel13 opment. 

14 (F) To pay the costs of— 

15 (i) designing and constructing water 

16 supply and sewer systems for tribal commu17 nities, including a water quality testing 

18 laboratory; 

19 (ii) other appropriate water-related 

20 projects and other related economic develop21 ment projects; 

22 (iii) the development of a water code; 

23 and 

24 (iv) other costs of implementing the 

25 Agreement. 


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1 (3) AUTHORIZATION OF APPROPRIATIONS.— 

2 There is authorized to be appropriated to the Sec3 retary for deposit in the Development Fund 

4 $9,000,000 for each of fiscal years 2008 through 2012. 

5 (c) MAINTENANCE FUND.— 

6 (1) ESTABLISHMENT.—There is established in 

7 the Treasury of the United States a fund to be known 

8 as the ‘‘Shoshone-Paiute Tribes Operation and Main9 tenance Fund’’. 

10 (2) USE OF FUNDS.—The Tribes shall use 

11 amounts in the Maintenance Fund to pay or provide 

12 reimbursement for— 

13 (A) operation, maintenance, and replace14 ment costs of the Duck Valley Indian Irrigation 

15 Project and other water-related projects funded 

16 under this Act; or 

17 (B) operation, maintenance, and replace18 ment costs of water supply and sewer systems for 

19 tribal communities, including the operation and 

20 maintenance costs of a water quality testing lab21 oratory. 

22 (3) AUTHORIZATION OF APPROPRIATIONS.— 

23 There is authorized to be appropriated to the Sec24 retary for deposit in the Maintenance Fund 

25 $3,000,000 for each of fiscal years 2008 through 2012. 


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1 (d) AVAILABILITY OF AMOUNTS FROM FUND.— 

2 Amounts made available under subsections (b)(3) and (c)(3) 

3 shall be available for expenditure or withdrawal only after 

4 the effective date as set forth in section 9(d). 

5 (e) ADMINISTRATION OF FUNDS.—The Secretary, in 

6 accordance with the American Indian Trust Fund Manage7 ment Reform Act of 1994 (25 U.S.C. 4001 et seq.) shall 

8 manage the Funds, including by investing amounts from 

9 the Funds in accordance with the Act of April 1, 1880 (25 

10 U.S.C. 161), and the first section of the Act of June 24, 

11 1938 (25 U.S.C. 162a). 

12 (f) EXPENDITURES AND WITHDRAWAL.— 

13 (1) TRIBAL MANAGEMENT PLAN.— 

14 (A) IN GENERAL.—The Tribes may with15 draw all or part of amounts in the Funds on ap16 proval by the Secretary of a tribal management 

17 plan as described in the American Indian Trust 

18 Fund Management Reform Act of 1994 (25 

19 U.S.C. 4001 et seq.). 

20 (B) REQUIREMENTS.—In addition to the 

21 requirements under the American Indian Trust 

22 Fund Management Reform Act of 1994 (25 

23 U.S.C. 4001 et seq.), the tribal management plan 

24 shall require that the Tribes spend any amounts 

25 withdrawn from the Funds in accordance with 


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1 the purposes described in subsection (b)(2) or 

2 (c)(2). 

3 (C) ENFORCEMENT.—The Secretary may 

4 take judicial or administrative action to enforce 

5 the provisions of any tribal management plan to 

6 ensure that any amounts withdrawn from the 

7 Funds under the plan are used in accordance 

8 with this Act and the Agreement. 

9 (D) LIABILITY.—If the Tribes exercise the 

10 right to withdraw amounts from the Funds, nei11 ther the Secretary nor the Secretary of the Treas12 ury shall retain any liability for the expenditure 

13 or investment of the amounts. 

14 (2) EXPENDITURE PLAN.— 

15 (A) IN GENERAL.—The Tribes shall submit 

16 to the Secretary for approval an expenditure 

17 plan for any portion of the amounts in the 

18 Funds that the Tribes do not withdraw under the 

19 tribal management plan. 

20 (B) DESCRIPTION.—The expenditure plan 

21 shall describe the manner in which, and the pur22 poses for which, amounts of the Tribes remaining 

23 in the Funds will be used. 

24 (C) APPROVAL.—On receipt of an expendi25 ture plan under subparagraph (A), the Secretary 


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1 shall approve the plan if the Secretary deter2 mines that the plan is reasonable and consistent 

3 with this Act and the Agreement. 

4 (D) ANNUAL REPORT.—For each Fund, the 

5 Tribes shall submit to the Secretary an annual 

6 report that describes all expenditures from the 

7 Fund during the year covered by the report. 

8 (3) FUNDING AGREEMENT.—Notwithstanding 

9 any other provision of this Act, on receipt of a request 

10 from the Tribes, the Secretary shall include an 

11 amount from funds made available under this section 

12 in the funding agreement of the Tribes under title IV 

13 of the Indian Self-Determination and Education As14 sistance Act (25 U.S.C. 458aa et seq.), for use in ac15 cordance with subsections (b)(2) and (c)(2). No 

16 amount made available under this Act may be re17 quested until the waivers under section 9(a) take ef18 fect. 

19 (g) NO PER CAPITA PAYMENTS.—No amount from the 

20 Funds (including any interest income accruing to the 

21 Funds) shall be distributed to a member of the Tribes on 

22 a per capita basis. 

23 SEC. 9. TRIBAL WAIVER AND RELEASE OF CLAIMS. 

24 (a) WAIVER AND RELEASE OF CLAIMS BY TRIBES AND

25 UNITED STATES AS TRUSTEE FOR TRIBES.—The Tribes 


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1 and the United States on behalf of the Tribes, are authorized 

2 to execute a waiver and release of— 

3 (1) all claims for water rights in, or for waters 

4 of, the East Fork of the Owyhee River that the Tribes, 

5 or the United States as trustee for the Tribes, asserted 

6 or could have asserted in any court proceeding; and 

7 (2) all claims for damages, losses, or injuries to 

8 water rights in the East Fork Owyhee River, includ9 ing claims of interference, diversion, or taking of 

10 water that the Tribes, or the United States as trustee 

11 for the Tribes, asserted or could have asserted in any 

12 court proceedings. 

13 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

14 UNITED STATES.—The Tribes are authorized to execute a 

15 waiver and release of— 

16 (1) all claims against the United States, its 

17 agencies, or employees, for water rights in, or waters 

18 of, the East Fork of the Owyhee River that the United 

19 States asserted or could have asserted in any court 

20 proceeding; 

21 (2) all claims for damages, losses, or injuries to 

22 water rights, including claims of interference, diver23 sion, or taking of water, or claims for failure to pro24 tect, acquire, or develop water or water rights within 

25 the East Fork of the Owyhee River, and claims for 


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1 fishing rights under any Executive order to the extent 

2 that an injury to such a right resulted from a reduc3 tion in the quantity of water available in the East 

4 Fork Owyhee River; that accrued on or before the ef5 fective date specified in subsection (d), that the Tribes 

6 have asserted or could have asserted against the 

7 United States, its agencies, or employees in any court 

8 proceedings; and 

9 (3) all claims arising out of the negotiation and 

10 adoption of the Agreement. 

11 (c) RETENTION OF RIGHTS.—Notwithstanding the 

12 waivers and releases set forth in subsections (a) and (b), 

13 the Tribes and their members and the United States as 

14 trustee for the Tribes and their members, shall retain— 

15 (1) all claims for enforcement of the Agreement, 

16 the Final Consent Decree, or this Act, through such 

17 legal and equitable remedies as may be available in 

18 any court of competent jurisdiction; 

19 (2) all rights to use and protect water rights ac20 quired pursuant to any State law; 

21 (3) all claims relating to activities affecting the 

22 quality of water; 

23 (4) all rights to land outside the Reservation; 

24 and 


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1 (5) all rights, remedies, privileges, immunities, 

2 and powers not specifically waived and released 

3 under the terms of the Agreement or this Act. 

4 (d) EFFECTIVE DATE.—Notwithstanding anything in 

5 the Agreement to the contrary, the waivers by the Tribes, 

6 or the United States on behalf of the Tribes, under this sec7 tion shall take effect on the date on which the Secretary 

8 publishes in the Federal Register a statement of findings 

9 that includes a finding that— 

10 (1) the Secretary has executed the Agreement as 

11 approved by Congress; 

12 (2) all parties to the Agreement have executed the 

13 Agreement; 

14 (3) the Fourth Judicial District Court, Elko 

15 County, Nevada has issued a judgment and decree 

16 consistent with the Agreement from which no further 

17 appeal can be taken; and 

18 (4) the amounts authorized under subsections 

19 (b)(3) and (c)(3) of section 8 have been appropriated. 

20 (e) FAILURE TO PUBLISH STATEMENT OF FIND21 INGS.—If the Secretary does not publish a statement of 

22 findings under subsection (d) by December 31, 2015— 

23 (1) the Agreement and this Act shall not take ef24 fect; and 


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1 (2) any funds and interest accrued thereon that 

2 have been appropriated under this Act shall imme3 diately revert to the general fund of the United States 

4 Treasury. 

5 (f) TOLLING OF CLAIMS.— 

6 (1) IN GENERAL.—Each applicable period of 

7 limitation and time-based equitable defense relating 

8 to a claim described in this section shall be tolled for 

9 the period beginning on the date of enactment of this 

10 Act and ending on the date on which the amounts au11 thorized to be appropriated under subsections (b)(3) 

12 and (c)(3) of section 8 are appropriated. 

13 (2) EFFECT OF SUBPARAGRAPH.—Nothing in 

14 this subparagraph revives any claim or tolls any pe15 riod of limitation or time-based equitable defense that 

16 expired before the date of enactment of this Act. 

17 (3) FUTURE ACQUISITION OF WATER RIGHTS.— 

18 Nothing in the Agreement or this Act precludes the 

19 Tribes, or the United States as trustee for the Tribes, 

20 from acquiring a water right in a State to the same 

21 extent as any other entity in the State, in accordance 

22 with State law. 


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1 SEC. 10. MISCELLANEOUS. 

2 (a) GENERAL DISCLAIMER.—The parties to the Agree3 ment expressly reserve all rights not specifically granted, 

4 recognized, or relinquished by— 

5 (1) the settlement described in the Agreement; or 

6 (2) this Act. 

7 (b) LIMITATION OF CLAIMS AND RIGHTS.—Nothing in 

8 this Act— 

9 (1) establishes a standard for quantifying— 

10 (A) a Federal reserved water right; 

11 (B) an aboriginal claim; or 

12 (C) any other water right claim of an In13 dian tribe in a judicial or administrative pro14 ceeding; or 

15 (2) limits the right of a party to the Agreement 

16 to litigate any issue not resolved by the Agreement or 

17 this Act. 

18 (c) ADMISSION AGAINST INTEREST.—Nothing in this 

19 Act constitutes an admission against interest by a party 

20 in any legal proceeding. 

21 (d) RESERVATION.—The Reservation shall be shall 

22 be— 

23 (1) considered to be the property of the Tribes; 

24 and 

25 (2) permanently held in trust by the United 

26 States for the sole use and benefit of the Tribes. 


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1 (e) JURISDICTION.— 

2 (1) SUBJECT MATTER JURISDICTION.—Nothing 

3 in the Agreement or this Act restricts, enlarges, or 

4 otherwise determines the subject matter jurisdiction of 

5 any Federal, State, or tribal court. 

6 (2) CIVIL OR REGULATORY JURISDICTION.— 

7 Nothing in the Agreement or this Act impairs or im8 pedes the exercise of any civil or regulatory authority 

9 of the United States, the State, or the Tribes. 

10 (3) CONSENT TO JURISDICTION.—The United 

11 States consents to jurisdiction in a proper forum for 

12 purposes of enforcing the provisions of the Agreement. 

13 (4) EFFECT OF SUBSECTION.—Nothing in this 

14 subsection confers jurisdiction on any State court 

15 to— 

16 (A) enforce Federal environmental laws re17 lating to the duties of the United States under 

18 this Act; or 

19 (B) conduct judicial review of a Federal 

20 agency action. 


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Union Calendar No. 529 

110TH CONGRESS 

2D SESSION H. R. 5293 

[Report No. 110

–815] 

A BILL 

To approve the settlement of the water rights 

tlement, and for other purposes. the Secretary of the Interior to carry out the setDuck Valley Reservation in Nevada, to require claims of the Shoshone-Paiute Tribes of the 

JULY 31, 2008 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 


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