108TH CONGRESS

2D SESSION S. 2605

AN ACT

To direct the Secretary of the Interior and the heads of

other Federal agencies to carry out an agreement resolving major issues relating to the adjudication of water

rights in the Snake River Basin, Idaho, 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 Act may be cited as the ‘‘Snake River Water

5 Rights Act of 2004’’.
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1 SEC. 2. PURPOSES.

2 The purposes of this Act are—

3 (1) to resolve some of the largest outstanding

4 issues with respect to the Snake River Basin Adju5 dication in Idaho in such a manner as to provide im6 portant benefits to the United States, the State of

7 Idaho, the Nez Perce Tribe, the allottees, and citi8 zens of the State;

9 (2) to achieve a fair, equitable, and final settle10 ment of all claims of the Nez Perce Tribe, its mem11 bers, and allottees and the United States on behalf

12 of the Tribe, its members, and allottees to the water

13 of the Snake River Basin within Idaho;

14 (3) to authorize, ratify, and confirm the Agree15 ment among the parties submitted to the Snake

16 River Basin Adjudication Court and provide all par17 ties with the benefits of the Agreement;

18 (4) to direct—

19 (A) the Secretary, acting through the Bu20 reau of Reclamation, the Bureau of Land Man21 agement, the Bureau of Indian Affairs, and

22 other agencies; and

23 (B) the heads of other Federal agencies

24 authorized to execute and perform actions nec25 essary to carry out the Agreement;
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1 to perform all of their obligations under the Agree2 ment and this Act; and

3 (5) to authorize the actions and appropriations

4 necessary for the United States to meet the obliga5 tions of the United States under the Agreement and

6 this Act.

7 SEC. 3. DEFINITIONS.

8 In this Act:

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

10 means the document titled ‘‘Mediator’s Term Sheet’’

11 dated April 20, 2004, and submitted on that date to

12 the SRBA Court in SRBA Consolidated Subcase

13 03–10022 and SRBA Consolidated Subcase 67–

14 13701, with all appendices to the document.

15 (2) ALLOTTEE.—The term ‘‘allottee’’ means a

16 person that holds a beneficial real property interest

17 in an Indian allotment that is—

18 (A) located within the Nez Perce Reserva19 tion; and

20 (B) held in trust by the United States.

21 (3) CONSUMPTIVE USE RESERVED WATER

22 RIGHT.—The term ‘‘consumptive use reserved water

23 right’’ means the Federal reserved water right of

24 50,000 acre-feet per year, as described in the Agree25 ment, to be decreed to the United States in trust for
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1 the Tribe and the allottees, with a priority date of

2 1855.

3 (4) PARTIES.—The term ‘‘parties’’ means the

4 United States, the State, the Tribe, and any other

5 entity or person that submitted, or joined in the sub6 mission of, the Agreement to the SRBA Court on

7 April 20, 2004.

8 (5) SECRETARY.—The term ‘‘Secretary’’ means

9 the Secretary of the Interior.

10 (6) SNAKE RIVER BASIN.—The term ‘‘Snake

11 River Basin’’ means the geographic area in the

12 State described in paragraph 3 of the Commence13 ment Order issued by the SRBA Court on November

14 19, 1987.

15 (7) SPRINGS OR FOUNTAINS WATER RIGHT.—

16 The term ‘‘springs or fountains water right’’ means

17 the Tribe’s treaty right of access to and use of water

18 from springs or fountains on Federal public land

19 within the area ceded by the Tribe in the Treaty of

20 June 9, 1863 (14 Stat. 647), as recognized under

21 the Agreement.

22 (8) SRBA.—The term ‘‘SRBA’’ means the

23 Snake River Basin Adjudication litigation before the

24 SRBA Court styled as In re Snake River Basin Ad25 judication, Case No. 39576.
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1 (9) SRBA COURT.—The term ‘‘SRBA Court’’

2 means the District Court of the Fifth Judicial Dis3 trict of the State of Idaho, In and For the County

4 of Twin Falls in re Snake River Basin Adjudication.

5 (10) STATE.—The term ‘‘State’’ means the

6 State of Idaho.

7 (11) TRIBE.—The term ‘‘Tribe’’ means the Nez

8 Perce Tribe.

9 SEC. 4. APPROVAL, RATIFICATION, AND CONFIRMATION OF

10 AGREEMENT.

11 (a) IN GENERAL.—Except to the extent that the

12 Agreement conflicts with this Act, the Agreement is ap13 proved, ratified, and confirmed.

14 (b) EXECUTION AND PERFORMANCE.—The Secretary

15 and the other heads of Federal agencies with obligations

16 under the Agreement shall execute and perform all ac17 tions, consistent with this Act, that are necessary to carry

18 out the Agreement.

19 SEC. 5. BUREAU OF RECLAMATION WATER USE.

20 (a) IN GENERAL.—As part of the overall implementa21 tion of the Agreement, the Secretary shall take such ac22 tions consistent with the Agreement, this Act, and water

23 law of the State as are necessary to carry out the Snake

24 River Flow Component of the Agreement.

25 (b) MITIGATION FOR CHANGE OF USE OF WATER.—
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1 (1) AUTHORIZATION OFAPPROPRIATIONS.—

2 There is authorized to be appropriated to the Sec3 retary $2,000,000 for a 1-time payment to local gov4 ernments to mitigate for the change of use of water

5 acquired by the Bureau of Reclamation under sec6 tion III.C.6 of the Agreement.

7 (2) DISTRIBUTION OFFUNDS.—Funds made

8 available under paragraph (1) shall be distributed by

9 the Secretary to local governments in accordance

10 with a plan provided to the Secretary by the State.

11 (3) PAYMENTS.—Payments by the Secretary

12 shall be made on a pro rata basis as water rights

13 are acquired by the Bureau of Reclamation.

14 SEC. 6. BUREAU OF LAND MANAGEMENT LAND TRANSFER.

15 (a) TRANSFER.—

16 (1) IN GENERAL.—The Secretary shall transfer

17 land selected by the Tribe under paragraph (2) to

18 the Bureau of Indian Affairs to be held in trust for

19 the Tribe.

20 (2) LAND SELECTION.—The land transferred

21 shall be selected by the Tribe from a list of parcels

22 of land managed by the Bureau of Land Manage23 ment that are available for transfer, as depicted on

24 the map entitled ‘‘North Idaho BLM Land Eligible

25 for Selection by the Nez Perce Tribe’’ dated May
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1 2004, on file with the Director of the Bureau of

2 Land Management, not including any parcel des3 ignated on the map as being on the Clearwater River

4 or Lolo Creek.

5 (3) MAXIMUM VALUE.—The land selected by

6 the Tribe for transfer shall be limited to a maximum

7 value in total of not more than $7,000,000, as deter8 mined by an independent appraisal of fair market

9 value prepared in accordance with the Uniform

10 Standards of Professional Appraisal Practice and

11 the Uniform Appraisal Standards for Federal Land

12 Acquisitions.

13 (b) EXISTING RIGHTS AND USES.—

14 (1) IN GENERAL.—On any land selected by the

15 Tribe under subsection (a)(2), any use in existence

16 on the date of transfer under subsection (a) under

17 a lease or permit with the Bureau of Land Manage18 ment, including grazing, shall remain in effect until

19 the date of expiration of the lease or permit, unless

20 the holder of the lease or permit requests an earlier

21 termination of the lease or permit, in which case the

22 Secretary shall grant the request.

23 (2) AVAILABILITY OFAMOUNTS.—Amounts

24 that accrue to the United States under a lease or

25 permit described in paragraph (1) from sales, bo-
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1 nuses, royalties, and rentals relating to any land

2 transferred to the Tribe under this section shall be

3 made available to the Tribe by the Secretary in the

4 same manner as amounts received from other land

5 held by the Secretary in trust for the Tribe.

6 (c) DATE OF TRANSFER.—No land shall be trans7 ferred to the Bureau of Indian Affairs to be held in trust

8 for the Tribe under this section until the waivers and re9 leases under section 10(a) take effect.

10 (d) AUTHORIZATION OF APPROPRIATIONS.—

11 (1) IN GENERAL.—There is authorized to be

12 appropriated to the Secretary $200,000 for 1-time

13 payments to local governments to mitigate for the

14 transfer of land by the Bureau of Land Management

15 to the Tribe under section I.F of the Agreement.

16 (2) PAYMENTS.—Payments under paragraph

17 (1) shall be made on a pro rata basis as parcels of

18 land are acquired by the Tribe.

19 SEC. 7. WATER RIGHTS.

20 (a) HOLDING IN TRUST.—

21 (1) IN GENERAL.—The consumptive use re22 served water right shall—

23 (A) be held in trust by the United States

24 for the benefit of the Tribe and allottees as set

25 forth in this section; and
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1 (B) be subject to section 7 of the Act of

2 February 8, 1887 (25 U.S.C. 381).

3 (2) SPRINGS OR FOUNTAINS WATER RIGHT.—

4 The springs or fountains water right of the Tribe

5 shall be held in trust by the United States for the

6 benefit of the Tribe.

7 (3) ALLOTTEES.—Allottees shall be entitled to

8 a just and equitable allocation of the consumptive

9 use reserved water right for irrigation purposes.

10 (b) WATER CODE.—

11 (1) ENACTMENT OFWATER CODE.—Not later

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

13 the Tribe shall enact a water code, subject to any

14 applicable provision of law, that—

15 (A) manages, regulates, and controls the

16 consumptive use reserved water right so as to

17 allocate water for irrigation, domestic, commer18 cial, municipal, industrial, cultural, or other

19 uses; and

20 (B) includes, subject to approval of the

21 Secretary—

22 (i) a due process system for the con23 sideration and determination of any re24 quest by an allottee, or any successor in in25 terest to an allottee, for an allocation of
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1 such water for irrigation purposes on allot2 ted land, including a process for an appeal

3 and adjudication of denied or disputed dis4 tribution of water and for resolution of

5 contested administrative decisions; and

6 (ii) a process to protect the interests

7 of allottees when entering into any lease

8 under subsection (e).

9 (2) SECRETARIAL APPROVAL.—Any provision of

10 the water code and any amendments to the water

11 code that affect the rights of the allottees shall be

12 subject to approval by the Secretary, and no such

13 provision or amendment shall be valid until approved

14 by the Secretary.

15 (3) INTERIM ADMINISTRATION.—The Secretary

16 shall administer the consumptive use reserved water

17 right until such date as the water code described in

18 paragraph (2) has been enacted by the Tribe and

19 the Secretary has approved the relevant portions of

20 the water code.

21 (c) EXHAUSTION OF REMEDIES.—Before asserting

22 any claim against the United States under section 7 of

23 the Act of February 8, 1887 (25 U.S.C. 381) or other

24 applicable law, a claimant shall exhaust remedies available

25 under the Tribe’s water code and Tribal law.
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1 (d) PETITION TO THE SECRETARY.—Following ex2 haustion of remedies in accordance with subsection (c), a

3 claimant may petition the Secretary for relief.

4 (e) SATISFACTION OF CLAIMS.—

5 (1) IN GENERAL.—The water rights and other

6 benefits granted or confirmed by the Agreement and

7 this Act shall be in full satisfaction of all claims for

8 water rights and injuries to water rights of the

9 allottees.

10 (2) SATISFACTION OF ENTITLEMENTS.—Any

11 entitlement to water of any allottee under Federal

12 law shall be satisfied out of the consumptive use re13 served water right.

14 (3) COMPLETE SUBSTITUTION.—The water

15 rights, resources, and other benefits provided by this

16 Act are a complete substitution for any rights that

17 may have been held by, or any claims that may have

18 been asserted by, allottees within the exterior bound19 aries of the Reservation before the date of enact20 ment of this Act.

21 (f) ABANDONMENT, FORFEITURE, OR NONUSE.—

22 The consumptive use reserved water right and the springs

23 or fountains water right shall not be subject to loss by

24 abandonment, forfeiture, or nonuse.

25 (g) LEASE OF WATER.—
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1 (1) IN GENERAL.—Subject to the water code,

2 the Tribe, without further approval of the Secretary,

3 may lease water to which the Tribe is entitled under

4 the consumptive use reserved water right through

5 any State water bank in the same manner and sub6 ject to the same rules and requirements that govern

7 any other lessor of water to the water bank.

8 (2) FUNDS.—Any funds accruing to the Tribe

9 from any lease under paragraph (1) shall be the

10 property of the Tribe, and the United States shall

11 have no trust obligation or other obligation to mon12 itor, administer, or account for any consideration re13 ceived by the Tribe under any such lease.

14 SEC. 8. TRIBAL FUNDS.

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

16 ‘‘Fund’’ means—

17 (1) the Nez Perce Tribe Water and Fisheries

18 Fund established under subsection (b)(1); and

19 (2) the Nez Perce Tribe Domestic Water Sup20 ply Fund established under subsection (b)(2).

21 (b) ESTABLISHMENT.—There are established in the

22 Treasury of the United States—

23 (1) a fund to be known as the ‘‘Nez Perce

24 Tribe Water and Fisheries Fund’’, to be used to pay

25 or reimburse costs incurred by the Tribe in acquir-
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1 ing land and water rights, restoring or improving

2 fish habitat, or for fish production, agricultural de3 velopment, cultural preservation, water resource de4 velopment, or fisheries-related projects; and

5 (2) a fund to be known as the ‘‘Nez Perce Do6 mestic Water Supply Fund’’, to be used to pay the

7 costs for design and construction of water supply

8 and sewer systems for tribal communities, including

9 a water quality testing laboratory.

10 (c) MANAGEMENT OFTHE FUNDS.—The Secretary

11 shall manage the Funds, make investments from the

12 Funds, and make amounts available from the Funds for

13 distribution to the Tribe consistent with the American In14 dian Trust Fund Management Reform Act of 1994 (25

15 U.S.C. 4001 et seq.), this Act, and the Agreement.

16 (d) INVESTMENT OFTHE FUNDS.—The Secretary

17 shall invest amounts in the Funds in accordance with—

18 (1) the Act of April 1, 1880 (25 U.S.C. 161;

19 21 Stat. 70, chapter 41);

20 (2) the first section of the Act of June 24,

21 1938 (25 U.S.C. 162a; 52 Stat. 1037, chapter 648);

22 and

23 (3) subsection (c).

24 (e) AVAILABILITY OF AMOUNTS FROM THE

25 FUNDS.—Amounts made available under subsection (h)
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1 shall be available for expenditure or withdrawal only after

2 the waivers and releases under section 10(a) take effect.

3 (f) EXPENDITURES AND WITHDRAWAL.—

4 (1) TRIBAL MANAGEMENT PLAN.—

5 (A) IN GENERAL.—The Tribe may with6 draw all or part of amounts in the Funds on

7 approval by the Secretary of a tribal manage8 ment plan as described in the American Indian

9 Trust Fund Management Reform Act of 1994

10 (25 U.S.C. 4001 et seq.).

11 (B) REQUIREMENTS.—In addition to the

12 requirements under the American Indian Trust

13 Fund Management Reform Act of 1994 (25

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

15 plan shall require that the Tribe spend any

16 amounts withdrawn from the Funds in accord17 ance with the purposes described in subsection

18 (b).

19 (C) ENFORCEMENT.—The Secretary may

20 take judicial or administrative action to enforce

21 the provisions of any tribal management plan to

22 ensure that any amounts withdrawn from the

23 Funds under the plan are used in accordance

24 with this Act and the Agreement.
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1 (D) LIABILITY.—If the Tribe exercises the

2 right to withdraw amounts from the Funds,

3 neither the Secretary nor the Secretary of the

4 Treasury shall retain any liability for the ex5 penditure or investment of the amounts.

6 (2) EXPENDITURE PLAN.—

7 (A) IN GENERAL.—The Tribe shall submit

8 to the Secretary for approval an expenditure

9 plan for any portion of the amounts made avail10 able under subsection (h) that the Tribe does

11 not withdraw under this subsection.

12 (B) DESCRIPTION.—The expenditure plan

13 shall describe the manner in which, and the

14 purposes for which, amounts of the Tribe re15 maining in the Funds will be used.

16 (C) APPROVAL.—On receipt of an expendi17 ture plan under subparagraph (A), the Sec18 retary shall approve the plan if the Secretary

19 determines that the plan is reasonable and con20 sistent with this Act and the Agreement.

21 (D) ANNUAL REPORT.—For each Fund,

22 the Tribe shall submit to the Secretary an an23 nual report that describes all expenditures from

24 the Fund during the year covered by the report.
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1 (g) NO PER CAPITA PAYMENTS.—No part of the

2 principal of the Funds, or of the income accruing in the

3 Funds, shall be distributed to any member of the Tribe

4 on a per capita basis.

5 (h) AUTHORIZATION OF APPROPRIATIONS.—There

6 are authorized to be appropriated—

7 (1) to the Nez Perce Tribe Water and Fisheries

8 Fund—

9 (A) for fiscal year 2007, $7,830,000;

10 (B) for fiscal year 2008, $4,730,000;

11 (C) for fiscal year 2009, $7,380,000;

12 (D) for fiscal year 2010, $10,080,000;

13 (E) for fiscal year 2011, $11,630,000;

14 (F) for fiscal year 2012, $9,450,000; and

15 (G) for fiscal year 2013, $9,000,000; and

16 (2) to the Nez Perce Tribe Domestic Water

17 Supply Fund—

18 (A) for fiscal year 2007, $5,100,000;

19 (B) for fiscal year 2008, $8,200,000;

20 (C) for fiscal year 2009, $5,550,000;

21 (D) for fiscal year 2010, $2,850,000; and

22 (E) for fiscal year 2011, $1,300,000.

23 SEC. 9. SALMON AND CLEARWATER RIVER BASINS HABITAT

24 FUND.

25 (a) ESTABLISHMENT OF FUND.—
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1 (1) IN GENERAL.—There is established in the

2 Treasury of the United States a fund to be known

3 as the ‘‘Salmon and Clearwater River Basins Habi4 tat Fund’’ (referred to in this section as the

5 ‘‘Fund’’), to be administered by the Secretary.

6 (2) ACCOUNTS.—There is established within the

7 Fund—

8 (A) an account to be known as the ‘‘Nez

9 Perce Tribe Salmon and Clearwater River Ba10 sins Habitat Account’’, which shall be adminis11 tered by the Secretary for use by the Tribe sub12 ject to the same provisions for management, in13 vestment, and expenditure as the funds estab14 lished by section 8; and

15 (B) an account to be known as the ‘‘Idaho

16 Salmon and Clearwater River Basins Habitat

17 Account’’, which shall be administered by the

18 Secretary and provided to the State as provided

19 in the Agreement and this Act.

20 (b) USE OFTHE FUND.—

21 (1) IN GENERAL.—The Fund shall be used to

22 supplement amounts made available under any other

23 law for habitat protection and restoration in the

24 Salmon and Clearwater River Basins in Idaho, in25 cluding projects and programs intended to protect
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1 and restore listed fish and their habitat in those ba2 sins, as specified in the Agreement and this Act.

3 (2) RELEASE OFFUNDS.—The Secretary shall

4 release funds from the Idaho Salmon and Clearwater

5 River Basins Habitat Account in accordance with

6 section 6(d)(2) of the Endangered Species Act (16

7 U.S.C. 1535(d)(2)).

8 (3) NO ALLOCATION REQUIREMENT.—The use

9 of the Fund shall not be subject to the allocation

10 procedures under section 6(d)(1) of the Endangered

11 Species Act of 1973 (16 U.S.C. 1535(d)(1)).

12 (c) AVAILABILITY OF AMOUNTS IN THE FUND.—

13 Amounts made available under subsection (d) shall be

14 available for expenditure or withdrawal only after the

15 waivers and releases under section 10(a) take effect.

16 (d) AUTHORIZATION OF APPROPRIATIONS.—There

17 are authorized to be appropriated—

18 (1) to the Nez Perce Tribe Salmon and Clear19 water River Basins Habitat Account, $2,533,334 for

20 each of fiscal years 2007 through 2011; and

21 (2) to the Idaho Salmon and Clearwater River

22 Basins Habitat Account, $5,066,666 for each of fis23 cal years 2007 through 2011.
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1 SEC. 10. TRIBAL WAIVER AND RELEASE OF CLAIMS.

2 (a) WAIVER AND RELEASE OF CLAIMS IN GEN3 ERAL.—

4 (1) CLAIMS TO WATER RIGHTS; CLAIMS FOR IN5 JURIES TO WATER RIGHTS OR TREATY RIGHTS.—Ex6 cept as otherwise provided in this Act, the United

7 States on behalf of the Tribe and the allottees, and

8 the Tribe, waive and release—

9 (A) all claims to water rights within the

10 Snake River Basin (as defined in section 3);

11 (B) all claims for injuries to such water

12 rights; and

13 (C) all claims for injuries to the treaty

14 rights of the Tribe to the extent that such inju15 ries result or resulted from flow modifications

16 or reductions in the quantity of water available

17 that accrued at any time up to and including

18 the effective date of the settlement, and any

19 continuation thereafter of any such claims,

20 against the State, any agency or political sub21 division of the State, or any person, entity, cor22 poration, municipal corporation, or quasi-mu23 nicipal corporation.

24 (2) CLAIMS BASED ON REDUCED WATER QUAL25 ITY OR REDUCTIONS IN WATER QUANTITY.—The

26 United States on behalf of the Tribe and the
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1 allottees, and the Tribe, waive and release any claim,

2 under any treaty theory, based on reduced water

3 quality resulting directly from flow modifications or

4 reductions in the quantity of water available in the

5 Snake River Basin against any party to the Agree6 ment.

7 (3) NO FUTURE ASSERTION OF CLAIMS.—No

8 water right claim that the Tribe or the allottees have

9 asserted or may in the future assert outside the

10 Snake River Basin shall require water to be supplied

11 from the Snake River Basin to satisfy the claim.

12 (4) EFFECT OF WAIVERS AND RELEASES.—The

13 waivers and releases by the United States and the

14 Tribe under this subsection—

15 (A) shall be permanent and enforceable;

16 and

17 (B) shall survive any subsequent termi18 nation of any component of the settlement de19 scribed in the Agreement or this Act.

20 (5) EFFECTIVE DATE.—The waivers and re21 leases under this subsection shall take effect on the

22 date on which the Secretary causes to be published

23 in the Federal Register a statement of findings that

24 the actions set forth in section IV.L of the

25 Agreement—
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1 (A) have been completed, including

2 issuance of a judgment and decree by the

3 SRBA court from which no further appeal may

4 be taken; and

5 (B) have been determined by the United

6 States on behalf of the Tribe and the allottees,

7 the Tribe, and the State of Idaho to be con8 sistent in all material aspects with the Agree9 ment.

10 (b) WAIVER AND RELEASE OF CLAIMS AGAINST THE

11 UNITED STATES.—

12 (1) IN GENERAL.—In consideration of perform13 ance by the United States of all actions required by

14 the Agreement and this Act, including the appro15 priation of all funds authorized under sections 8(h)

16 and 9(d)(1), the Tribe shall execute a waiver and re17 lease of the United States from—

18 (A) all claims for water rights within the

19 Snake River Basin, injuries to such water

20 rights, or breach of trust claims for failure to

21 protect, acquire, or develop such water rights

22 that accrued at any time up to and including

23 the effective date determined under paragraph

24 (2);
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1 (B) all claims for injuries to the Tribe’s

2 treaty fishing rights, to the extent that such in3 juries result or resulted from reductions in the

4 quantity of water available in the Snake River

5 Basin;

6 (C) all claims of breach of trust for failure

7 to protect Nez Perce springs or fountains treaty

8 rights reserved in article VIII of the Treaty of

9 June 9, 1863 (14 Stat. 651); and

10 (D) all claims of breach of trust arising

11 out of the negotiation of or resulting from the

12 adoption of the Agreement.

13 (2) EFFECTIVE DATE.—

14 (A) IN GENERAL.—The waiver and release

15 contained in this subsection shall take effect on

16 the date on which the amounts authorized

17 under sections 8(h) and 9(d)(1) are appro18 priated.

19 (B) PERIODS OFLIMITATION; EQUITABLE

20 CLAIMS.—

21 (i) IN GENERAL.—All periods of limi22 tation and time-based equitable defenses

23 applicable to the claims set forth in para24 graph (1) are tolled for the period between
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1 the date of enactment of this Act until the

2 earlier of—

3 (I) the date on which the

4 amounts authorized under sections

5 8(h) and 9(d)(1) are appropriated; or

6 (II) October 1, 2017.

7 (ii) EFFECT OF SUBPARAGRAPH.—

8 This subparagraph neither revives any

9 claim nor tolls any period of limitation or

10 time-based equitable defense that may have

11 expired before the date of enactment of

12 this Act.

13 (3) DEFENSE.—The making of the amounts of

14 appropriations authorized under sections 8(h) and

15 9(d)(1) shall constitute a complete defense to any

16 claim pending in any court of the United States on

17 the date on which the appropriations are made.

18 (c) RETENTION OF RIGHTS.—

19 (1) IN GENERAL.—The Tribe shall retain all

20 rights not specifically waived or released in the

21 Agreement or this Act.

22 (2) DWORSHAK PROJECT.—Nothing in the

23 Agreement or this Act constitutes a waiver by the

24 Tribe of any claim against the United States result25 ing from the construction and operation of the
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1 Dworshak Project (Project PWI 05090), other than

2 those specified in subparagraphs (A) and (B) of sub3 section (b)(1).

4 (3) FUTURE ACQUISITION OFWATER RIGHTS.—

5 Nothing in the Agreement or this Act precludes the

6 Tribe or allottees, or the United States as trustee

7 for the Tribe or allottees, from purchasing or other8 wise acquiring water rights in the future to the same

9 extent as any other entity in the State.

10 SEC. 11. MISCELLANEOUS.

11 (a) GENERAL DISCLAIMER.—The parties expressly

12 reserve all rights not specifically granted, recognized, or

13 relinquished by the settlement described in the Agreement

14 or this Act.

15 (b) DISCLAIMER REGARDING OTHER AGREEMENTS

16 AND PRECEDENT.—

17 (1) IN GENERAL.—Subject to section 9(b)(3),

18 nothing in this Act amends, supersedes, or preempts

19 any State law, Federal law, Tribal law, or interstate

20 compact that pertains to the Snake River Basin.

21 (2) NO ESTABLISHMENT OFSTANDARD.—Noth22 ing in this Act—

23 (A) establishes any standard for the quan24 tification of Federal reserved water rights or

25 any other Indian water claims of any other In-
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1 dian tribes in any other judicial or administra2 tive proceeding; or

3 (B) limits the rights of the parties to liti4 gate any issue not resolved by the Agreement or

5 this Act.

6 (3) NO ADMISSION AGAINST INTEREST.—Noth7 ing in this Act constitutes an admission against in8 terest against any party in any legal proceeding.

9 (c) TREATY RIGHTS.—Nothing in the Agreement or

10 this Act impairs the treaty fishing, hunting, pasturing, or

11 gathering rights of the Tribe except to the extent expressly

12 provided in the Agreement or this Act.

13 (d) OTHER CLAIMS.—Nothing in the Agreement or

14 this Act quantifies or otherwise affects the water rights,

15 claims, or entitlements to water, or any other treaty right,

16 of any Indian tribe, band, or community other than the

17 Tribe.

18 (e) RECREATION ON DWORSHAK RESERVOIR.—

19 (1) IN GENERAL.—In implementing the provi20 sions of the Agreement and this Act relating to the

21 use of water stored in Dworshak Reservoir for flow

22 augmentation purposes, the heads of the Federal

23 agencies involved in the operational Memorandum of

24 Agreement referred to in the Agreement shall imple-
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1 ment a flow augmentation plan beneficial to fish and

2 consistent with the Agreement.

3 (2) CONTENTS OFPLAN.—The flow augmenta4 tion plan may include provisions beneficial to rec5 reational uses of the reservoir through maintenance

6 of the full level of the reservoir for prolonged periods

7 during the summer months.

8 (f) JURISDICTION.—

9 (1) NO EFFECT ON SUBJECT MATTER JURIS10 DICTION.—Nothing in the Agreement or this Act re11 stricts, enlarges, or otherwise determines the subject

12 matter jurisdiction of any Federal, State, or Tribal

13 court.

14 (2) CONSENT TO JURISDICTION.—The United

15 States consents to jurisdiction in a proper forum for

16 purposes of enforcing the provisions of the Agree17 ment.

18 (3) EFFECT OF SUBSECTION.—Nothing in this

19 subsection confers jurisdiction on any State court

20 to—

21 (A) enforce Federal environmental laws re22 garding the duties of the United States; or
†

27

S 2605 ES

1 (B) conduct judicial review of Federal

2 agency action.

Passed the Senate November 19, 2004.

Attest:

Secretary.
108TH CONGRESS

2D SESSION S. 2605

AN ACT

To direct the Secretary of the Interior and the

heads of other Federal agencies to carry out anagreement resolving major issues relating to theadjudication of water rights in the Snake RiverBasin, Idaho, and for other purposes.