S 399
112th CONGRESS
1st Session
S. 399
To modify the purposes and operation of certain facilities
of the Bureau of Reclamation to implement the water rights compact among
the State of Montana, the Blackfeet Tribe of the Blackfeet Indian Reservation
of Montana, and the United States, and for other purposes.
IN THE SENATE OF THE UNITED STATES
February 17, 2011
Mr. BAUCUS (for himself and Mr. TESTER) introduced the following bill;
which was read twice and referred to the Committee on Indian Affairs
A BILL
To modify the purposes and operation of certain facilities
of the Bureau of Reclamation to implement the water rights compact among
the State of Montana, the Blackfeet Tribe of the Blackfeet Indian Reservation
of Montana, and the United States, 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 `Blackfeet Water Rights Settlement Act
of 2011'.
SEC. 2. FINDINGS.
(1) the reservation of the Blackfeet Tribe of the Blackfeet Indian
Reservation of Montana was established from the aboriginal territory
of the Tribe by the treaty between the Tribe and the United States
dated October 17, 1855 (11 Stat. 657);
(2) water was reserved by the Tribe in that treaty--
(A) to fulfill the promise of a homeland for members of the Tribe;
and
(B) for the governmental, economic, social, cultural, and religious
well-being of the Tribe and members of the Tribe;
(3) the water rights of the Tribe have not been consistently protected
by the United States regarding--
(A) the use and allocation of water on the Reservation, including--
(i) the allocation of water of the St. Mary River and the Milk
River in the treaty between the United States and Great Britain
relating to boundary waters between the United States and Canada
entered into force on May 13, 1910 (36 Stat. 2448); and
(ii) the diversion of St. Mary River water for use by the Milk
River Project of the Bureau of Reclamation; and
(B) activities for development carried out on and off the Reservation
by non-members of the Tribe;
(4) as of the date of enactment of this Act, civil actions to determine
the water rights of the Tribe are pending in--
(A) the United States District Court for the District of Montana
in the action styled `United States v. Aageson', numbered CIV-79-21-GF,
and filed on April 5, 1979; and
(B) the Montana Water Court in the action styled `In the Matter
of the Adjudication of the Existing and Reserved Rights to the Use
of Water, Both Surface and Underground, of the Blackfeet Tribe of
the Blackfeet Reservation within the State of Montana' and numbered
WC-91-1;
(5) to avoid divisive, expensive, and lengthy litigation of the water
rights of the Tribe, to resolve critical issues relating to administration
and development of those water rights, and to provide for appropriate
mitigation measures, the Tribe, the State of Montana, and the United
States have negotiated the Blackfeet Tribe-Montana Water Rights Compact;
(6) in addition to quantification of the water rights of the Tribe,
development of necessary water supplies on the Reservation through
the planning, design, and construction of facilities and infrastructure
is essential to carrying out the intent of the treaty referred to
in paragraph (1)--
(A) to create a permanent homeland for members of the Tribe;
(B) to provide a viable Reservation economy; and
(C) to implement the Compact; and
(7) to fulfill the trust responsibility of the United States to Indian
tribes and to promote tribal sovereignty and economic self-sufficiency,
it is the policy of the United States to resolve tribal reserved water
rights claims without lengthy and costly litigation.
SEC. 3. PURPOSES.
The purposes of this Act are--
(1) to authorize certain projects on the Reservation to implement
the Compact, the Birch Creek Agreement, and this Act in a manner that--
(A) maximizes the benefits of the water rights of the Tribe established
in the Compact; and
(B) ensures for the Tribe and members of the Tribe the benefits
of a permanent homeland, including cultural, economic, social, and
governmental benefits;
(2) to authorize certain modifications of the purposes and operation
of certain Bureau of Reclamation facilities to implement the Compact
and this Act;
(3) to authorize the rehabilitation, improvement, and completion of
the Blackfeet Irrigation Project--
(A) to maximize the benefits of the Blackfeet Irrigation Project
for all project water users; and
(B) to implement the Compact and the Birch Creek Agreement;
(4) to approve, ratify, and confirm the water rights Compact;
(5) to require the Secretary of the Interior--
(A) to implement the Compact; and
(B) to carry out the obligations of the United States under the
Compact and this Act;
(6) to provide for the final resolution of all water rights claims
among--
(A) the United States, on behalf of the Tribe and members of the
Tribe;
(B) the United States, on behalf of the allottees;
(C) the Tribe, on behalf of the Tribe and members of the Tribe;
and
(D) the State of Montana; and
(7) to authorize the actions, agreements, and appropriations necessary
to implement the Compact and this Act.
SEC. 4. DEFINITIONS.
(1) ALLOTTEE- The term `allottee' means any individual who owns or
holds a trust allotment or interest in a trust allotment on the Reservation
pursuant to the Act of February 8, 1887 (25 U.S.C. 331; 24 Stat. 388,
chapter 119), (commonly known as the `General Allotment Act'), the
matter under the heading `Montana' of title II of the Act of March
1, 1907 (34 Stat. 1035, chapter 2285), and the Act of June 30, 1919
(41 Stat. 3, chapter 4), subject to the terms and conditions of those
Acts.
(2) AVAILABLE ST. MARY RIVER WATER- The term `available St. Mary River
water' means--
(A) water from the St. Mary River allocated to the United States
under the treaty between the United States and Great Britain relating
to boundary waters between the United States and Canada entered
into force on May 13, 1910 (36 Stat. 2448), minus the quantity of
water required for the Milk River Project water right; and
(i) otherwise part of the Milk River Project water right; and
(ii) made available by the United States to the Tribe without
any net reduction of the legal entitlement to water of any water
user under the jurisdiction of an entity that is a party to a
contract for water from the Milk River Project water right, as
determined--
(I) initially, by the Secretary; and
(II) subsequently, by a court of competent jurisdiction.
(3) BIRCH CREEK AGREEMENT- The term `Birch Creek Agreement' means
the agreement between the Tribe and the State regarding Birch Creek
water use dated January 31, 2008.
(4) BLACKFEET IRRIGATION PROJECT- The term `Blackfeet Irrigation Project'
means the irrigation project on the Reservation authorized by the
matter under the heading `Montana' of title II of the Act of March
1, 1907 (34 Stat. 1035, chapter 2285), and administered by the Bureau
of Indian Affairs.
(5) COMPACT- The term `Compact' means the water rights agreement (including
any appendix or amendment to the agreement) among the Tribe, the State,
and the United States that was--
(A) ratified by the legislature of the State, as codified in section
85-20-1501 of the Montana Code Annotated (2009); and
(B) the subject of Blackfeet Resolution No. 184-2008.
(6) JOINT BOARD- The term `Joint Board' means the joint board of control
of the Milk River Project established in accordance with State law.
(7) LAKE ELWELL- The term `Lake Elwell' means the water impounded
on the Marias River in the State by Tiber Dam, a feature of the Lower
Marias Unit of the Pick-Sloan Missouri River Basin Program authorized
by section 9 of the Act of December 22, 1944 (commonly known as the
`Flood Control Act of 1944'), (58 Stat. 891, chapter 665).
(8) LAKE SHERBURNE RESERVOIR- The term `Lake Sherburne Reservoir'
means the storage facility of the Milk River Project authorized by
the Secretary as part of the St. Mary storage unit on March 25, 1905.
(A) IN GENERAL- The term `Milk River Project' means the Bureau of
Reclamation project conditionally approved by the Secretary on March
14, 1903, pursuant to the Act of June 17, 1902 (32 Stat. 388, chapter
1093), commencing at Lake Sherburne Reservoir and providing water
to a point approximately 6 miles east of Nashua, Montana.
(B) INCLUSIONS- The term `Milk River Project' includes--
(i) the St. Mary storage unit;
(iii) the Dodson pumping unit.
(10) MILK RIVER PROJECT WATER RIGHT- The term `Milk River Project
water right' includes any water right held by the Bureau of Reclamation
on behalf of the Milk River Project, as finally adjudicated by the
Montana Water Court.
(11) MISSOURI RIVER BASIN- The term `Missouri River Basin' means the
hydrologic basin of the Missouri River (including tributaries).
(12) MONTANA WATER COURT- The term `Montana Water Court' means the
court established pursuant to chapter 7 of title 3, Montana Code Annotated,
for the adjudication of water rights in the State.
(13) PONDERA COUNTY CANAL AND RESERVOIR COMPANY PROJECT- The term
`Pondera County Canal and Reservoir Company Project' means the project
authorized in part by section 4 of the Act of August 18, 1894 (28
Stat. 422) and lying south of Birch Creek in Montana Water Court Basin
41M.
(14) RESERVATION- The term `Reservation' means the Blackfeet Indian
Reservation of Montana, as in existence on the date of enactment of
this Act.
(15) ST. MARY RIVER WATER RIGHT- The term `St. Mary River water right'
means the water right of the Tribe in the St. Mary River established
by article III.G.1.a.i. of the Compact and implemented in accordance
with article IV.D.4 of the Compact.
(16) SECRETARY- The term `Secretary' means the Secretary of the Interior.
(17) STATE- The term `State' means the State of Montana, including
the officers, agencies, departments, and political subdivisions of
that State.
(18) TRIBAL WATER CODE- The term `tribal water code' means the code
contained in the ordinance of the Tribe numbered 62, adopted by the
business council of the Tribe pursuant to the resolution numbered
127-80 on May 15, 1980, and approved by the Blackfeet Indian Agency
Superintendent of the Bureau of Indian Affairs on May 23, 1980, as
amended in accordance with the Compact and this Act.
(19) TRIBAL WATER RIGHT- The term `tribal water right' means--
(A) any right of the Tribe (including any member of the Tribe or
allottee) to divert, use, or store water, as established in the
Compact;
(B) any allocation of water to the Tribe from Lake Elwell pursuant
to section 5(c); and
(C) any allocation of water to the Tribe from Lake Sherburne Reservoir
and the available St. Mary River water or any other source pursuant
to section 5 that fulfills the St. Mary River water right of the
Tribe under the Compact.
(20) TRIBE- The term `Tribe' means the Blackfeet Tribe of the Blackfeet
Indian Reservation of Montana, including the officers, agencies, and
departments of that tribe.
(21) WATER RIGHTS ARISING UNDER STATE LAW- The term `Water Rights
Arising Under State Law' has the meaning given the term in article
II.52 of the Compact.
SEC. 5. RECLAMATION ACTIVITIES.
(A) IN GENERAL- In providing to the Tribe the St. Mary River water
right, the Secretary shall allocate to the Tribe 50,000 acre-feet
per year of stored water in Lake Sherburne Reservoir as part of
the tribal water right.
(B) COSTS- The Tribe shall not be required to pay any operation,
maintenance, or replacement costs, capital costs, or other costs
associated with the allocation under subparagraph (A).
(C) PROHIBITION ON INCREASE- The allocation under subparagraph (A)
shall not be increased by any year-to-year carryover storage.
(2) LEASE OF ALLOCATED WATER-
(i) IN GENERAL- The Tribe and the Secretary, acting through the
Commissioner of Reclamation, shall enter into an agreement to
lease the water allocated to the Tribe under paragraph (1) for
use by the Secretary for the Milk River Project, in accordance
with such terms and conditions on which the Tribe and the Secretary
may agree.
(I) IN GENERAL- If the Tribe and the Secretary fail to agree
to terms and conditions as described in clause (i) by the date
that is 1 year after the date of enactment of this Act, a mediator
acceptable to the Tribe and the Secretary shall be appointed
by the Chief Judge of the United States District Court for the
District of Montana to assist the parties in reaching an agreement.
(II) COSTS- The costs of a mediator appointed under subclause
(I) shall be paid by the Secretary.
(B) EFFECTIVE PERIOD- A lease under subparagraph (A) shall remain
in effect until the date described in paragraph (3)(E).
(C) MILK RIVER PROJECT WATER USERS- No Milk River Project water
user or other entity that is a party to any contract on behalf of
such a water user shall be required to pay any costs associated
with--
(i) the allocation to the Tribe under paragraph (1); or
(ii) a lease under this paragraph.
(3) IDENTIFICATION OF AVAILABLE ST. MARY RIVER WATER-
(A) INVESTIGATIONS AND STUDIES- The Secretary, in cooperation with
the Tribe, may carry out any appropriate investigation or study
to identify available St. Mary River water to provide to the Tribe
the St. Mary River water right.
(B) FACILITIES- The Secretary may plan, design, and construct such
facilities as the Secretary, the Tribe, and the State determine
to be necessary to provide to the Tribe the St. Mary River water
right.
(C) AGREEMENTS WITH TRIBE- The Secretary may enter into such cooperative
agreements or contracts under the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450 et seq.) with the Tribe
as the Secretary determines to be necessary to carry out subparagraphs
(A) and (B).
(D) MODIFICATIONS TO MILK RIVER PROJECT- The Secretary, in consultation
with the Tribe, the State, the Fort Belknap Indian Community, the
Joint Board, and other affected stakeholders, may make such modifications
as are necessary to carry out this paragraph to--
(i) the operating procedures of the Milk River Project; or
(ii) any federally owned facility of the Milk River Project.
(E) DATE TO BEGIN USE- Beginning on the date on which the Secretary,
the Tribe, and the State agree in writing that water has been identified
from available St. Mary River water or any other source, and is
available to satisfy any portion of the St. Mary River water right
in accordance with articles III.G.1.a.i and IV.D.4 of the Compact--
(i) the Tribe may begin to use that water; and
(ii) the allocation to the Tribe under paragraph (1) and the lease
under paragraph (2) shall terminate with respect to that quantum
of water.
(b) Milk River Project Rights-of-Way and Easements-
(1) IN GENERAL- As soon as practicable after the date of enactment
of this Act, but not later than the enforceability date described
in section 12(e), the Secretary shall resolve all issues relating
to the use by the United States of tribal land or allotted land for
purposes of the Milk River Project, including the payment to the Tribe
and members of the Tribe of compensation for that use, notwithstanding
any other provision of law, if such compensation--
(A) has not previously been paid; or
(2) ACTION BY SECRETARY OF TREASURY- Notwithstanding any other provision
of law, as soon as practicable after the date of enactment of this
Act, but not later than the enforceability date described in section
12(e), the Secretary of the Treasury shall return to the Tribe all
amounts paid by the Tribe for land relinquished to the Tribe pursuant
to the Act of August 28, 1937 (50 Stat. 864, chapter 868), including
interest on those amounts.
(A) IN GENERAL- As part of the tribal water right, the Secretary
shall permanently allocate to the Tribe all remaining unallocated
water in Lake Elwell, as measured at the outlet works of the dam,
minus any quantity of that water that may be allocated to the Fort
Belknap Indian Community, as agreed to by the Tribe and the Fort
Belknap Indian Community, for use by the Tribe for any beneficial
purpose on or off the Reservation.
(B) REQUEST BY TRIBE- The Secretary may enter into an agreement
with the Tribe to establish a procedure through which the Tribe
may request and use the allocation under subparagraph (A).
(2) PRIORITY DATE- The priority date of the allocation to the Tribe
under paragraph (1) shall be the priority date of the Lake Elwell
water right held by the Bureau of Reclamation.
(3) COSTS- The Tribe shall not be required to pay any annual operation,
maintenance, or replacement costs, capital costs, or other costs associated
with the allocation under paragraph (1).
(4) AGREEMENTS BY TRIBE- The Tribe may use, lease, contract, exchange,
or enter into other agreements for use of the water allocated to the
Tribe under paragraph (1) if--
(A) the use of water that is the subject of such an agreement occurs
within the Missouri River Basin; and
(B) the agreement does not permanently alienate any water allocated
to the Tribe under paragraph (1).
(5) EFFECTIVE DATE- The allocation under paragraph (1) takes effect
on the enforceability date described in section 12(e).
(6) PROHIBITION ON INCREASE- The allocation under paragraph (1) shall
not be increased by any year-to-year carryover storage.
(7) EFFECT OF SUBSECTION-
(A) CHIPPEWA CREE TRIBE- Nothing in this subsection alters or diminishes
the allocation from Lake Elwell to the Chippewa Cree Tribe pursuant
to the Chippewa Cree Tribe of The Rocky Boy's Reservation Indian
Reserved Water Rights Settlement and Water Supply Enhancement Act
of 1999 (Public Law 106-163; 113 Stat 1778).
(B) NO TRANSPORTATION FACILITIES REQUIREMENT- Except as otherwise
provided in this Act, nothing in this subsection requires the United
States to provide any facility for transport to the Reservation
or any other location of the water allocated to the Tribe under
this subsection.
(8) DEVELOPMENT AND DELIVERY COSTS- Except as otherwise provided in
this Act, the United States is not required to pay the cost of developing
or delivering to the Reservation any water allocated under this subsection.
(d) Blackfeet Irrigation Project-
(1) IN GENERAL- The Secretary shall carry out such activities as are
necessary relating to--
(A) planning, design, and construction for rehabilitation and improvement
of the Blackfeet Irrigation Project; and
(B) the completion to authorized acreage of the Blackfeet Irrigation
Project.
(2) FOUR HORNS DAM AND RESERVOIR-
(A) IN GENERAL- The Secretary shall carry out such activities as
are necessary relating to planning, design, and construction for
rehabilitation and improvement of the Four Horns Dam and Reservoir
and associated delivery systems of the Blackfeet Irrigation Project,
including--
(i) the rehabilitation and improvement of the Four Horns feeder
canal system to a capacity of not less than 300 cubic feet per
second;
(ii) the enlargement to maximum practical capacity of the off-stream
Four Horns Dam and Reservoir;
(iii) construction of facilities to deliver not less than 15,000
acre-feet of water per year from the enlarged Four Horns Dam and
Reservoir to a point on Birch Creek to be designated by the Tribe
and the State for delivery of water to the water delivery system
of the Pondera County Canal and Reservoir Company Project;
(iv) rehabilitation and improvement of the outlet canal delivery
system from Four Horns Dam and Reservoir to Blacktail Creek;
(v) rehabilitation and improvement of the Badger-Fisher main canal;
and
(vi) measures to enhance on-farm efficiency in the Badger-Fisher
irrigation unit of the Blackfeet Irrigation Project.
(B) COOPERATIVE AGREEMENT- On receipt of a request by the Tribe,
the Secretary shall enter into a cooperative agreement or contract
under the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450 et seq.) with the Tribe to carry out the activities
under this paragraph.
(C) ALLOCATION OF EXCESS WATER- Notwithstanding any other provision
of law, on completion of the activities under this paragraph, the
Secretary shall allocate to the Tribe, at no cost, all stored water
in Four Horns Reservoir in excess of the quantity of water necessary
to serve the land within the Blackfeet Irrigation Project, but not
less than 15,000 acre-feet, for--
(i) fulfillment of the obligations of the Tribe under the Birch
Creek Agreement to deliver water to holders of Water Rights Arising
Under State Law in Birch Creek; and
(ii) use or lease by the Tribe for any purpose in accordance with
this Act, the Compact, and the Birch Creek Agreement.
(D) IDENTIFICATION OF FACILITIES-
(i) IN GENERAL- The Tribe, the State, and the Regional Director
of the Great Plains Region of the Bureau of Reclamation, in consultation
with the Bureau of Indian Affairs, shall--
(I) identify each facility or portion of a facility to be constructed,
rehabilitated, or improved primarily for the purpose of providing
to the Tribe the allocation under subparagraph (C); and
(II) agree on the ownership, operation, maintenance, and replacement
obligations associated with those facilities and portions of
facilities.
(ii) COSTS- No Blackfeet Irrigation Project water user or holder
of Water Rights Arising Under State law in Birch Creek shall be
required to pay any costs associated with any facility or portion
of a facility identified under clause (i).
(E) STATE CONTRIBUTION- As a condition of ratification of the Compact
by this Act, the State shall contribute to the cost of the activities
under this paragraph not less than $20,000,000.
(A) IN GENERAL- Notwithstanding any other provision of law, on receipt
of a request by the Tribe, the Secretary shall transfer to the Tribe,
at no cost, title in and to each facility, asset, and other property
of the Blackfeet Irrigation Project.
(B) OWNERSHIP- On transfer of title under subparagraph (A), the
Blackfeet Irrigation Project shall be considered to be owned, operated,
and managed by the Tribe.
(C) OPERATION AND MAINTENANCE- The Tribe shall promulgate criteria
and procedures, subject to the approval of the Secretary, under
which the Tribe shall operate and maintain the Blackfeet Irrigation
Project, including--
(i) a due process system for the consideration and determination
of any request by a water user for an allocation of water that
provides protection not less stringent than the protection available
under Federal law, including a process for--
(I) appeal and adjudication of denied or disputed distributions
of water; and
(II) resolution of contested administrative decisions; and
(ii) a system for establishing water rates, including the processes
described in subclauses (I) and (II) of clause (i).
(4) IRRIGATION EFFICIENCY IN UPPER BIRCH DRAINAGE- Any activity carried
out by the Tribe in the Upper Birch Drainage (as defined in article
II.50 of the Compact) using funds made available under this Act shall
achieve an irrigation efficiency of not less than 50 percent.
(e) Reclamation Water Settlements Fund- In carrying out this section,
the Secretary may use amounts in the Reclamation Water Settlements Fund
established by subsection (a) of section 10501 of the Omnibus Public
Land Management Act of 2009 (43 U.S.C. 407) pursuant to subsection (c)(3)(B)(iii)
of that section.
SEC. 6. APPROVAL OF COMPACT AND BIRCH CREEK AGREEMENT.
(1) IN GENERAL- Except as modified by this Act, and to the extent
that the Compact and the Birch Creek Agreement do not conflict with
this Act, the Compact and the Birch Creek Agreement are authorized,
ratified, and confirmed.
(2) AMENDMENTS- To the extent that any amendment is executed to ensure
that the Compact or the Birch Creek Agreement is consistent with this
Act, the amendment is authorized, ratified, and confirmed.
(1) IN GENERAL- To the extent that the Compact and the Birch Creek
Agreement do not conflict with this Act, the Secretary shall promptly
execute the Compact and the Birch Creek Agreement.
(2) EFFECT OF SUBSECTION- Nothing in this subsection precludes the
Secretary from approving a modification to any appendix or exhibit
to the Compact or the Birch Creek Agreement that is not inconsistent
with this Act, subject to section 2116 of the Revised Statutes (25
U.S.C. 177) and other applicable Federal law (including regulations).
(c) Action by Other Departments and Agencies- The Secretary and the
head of each other appropriate Federal department or agency shall carry
out such activities as are necessary to implement the Compact, the Birch
Creek Agreement, and this Act.
SEC. 7. TRIBAL WATER RIGHT.
(a) Treatment- The tribal water right--
(1) shall be held in trust by the United States for the benefit of
the Tribe; and
(2) shall not be subject to loss by abandonment, forfeiture, or nonuse.
(b) Allottee Entitlements- Each allottee shall be entitled to a just
and equitable allocation of the tribal water right for irrigation purposes
pursuant to section 7 of the Act of February 8, 1887 (25 U.S.C. 381),
in accordance with the Compact and the tribal water code.
(c) Federal Reserved Water Rights- Any right to Federal reserved water
of a member of the Tribe, an allottee, or an owner of fee land within
the boundaries of the Reservation shall be--
(1) considered to be satisfied by the tribal water right; and
(2) governed in accordance with the terms and conditions of the Compact,
this Act, and the tribal water code (including any applicable requirement
to obtain a permit under the tribal water code).
(d) Limitation on Certain Claims- Notwithstanding any other provision
of law, no claim to a Federal reserved water right of an owner of fee
land that was within the boundaries of the Reservation on June 30, 1996,
as the successor to an allottee may be sustained as a matter of Federal
law if the claim was not filed in the Montana water rights adjudication
(Mont. Code Ann. 85-2-212, et seq.) by the required filing date.
(1) AMENDMENTS- Not later than 180 days after the date of enactment
of this Act, the Tribe shall amend the tribal water code, subject
to the approval of the Secretary under paragraph (2)(A), as necessary
to administer the tribal water right in accordance with article IV.C
of the Compact.
(A) IN GENERAL- No provision of the tribal water code (or any amendment
to the tribal water code) that affects any right of an allottee
shall take effect until the date on which the provision is approved
by the Secretary.
(B) INTERIM ADMINISTRATION-
(i) IN GENERAL- During the period beginning on the date of amendment
of the tribal water code under paragraph (1) and ending on the
date of approval of the amendment by the Secretary under subparagraph
(A), the tribal water right shall be administered by the Tribe
pursuant to the tribal water code as in existence on the day before
the date of enactment of this Act, to the extent that the tribal
water code is not inconsistent with the Compact and this Act.
(ii) INCONSISTENCIES- If any inconsistency exists between the
tribal water code as in existence on the day before the date of
enactment of this Act and the Compact or this Act, the applicable
provision of the Compact or this Act shall control.
(3) EXHAUSTION OF REMEDIES- No member of the Tribe, allottee, or owner
of fee land within the boundaries of the Reservation shall file against
the United States a claim relating to water under the tribal water
right pursuant to section 7 of the Act of February 8, 1887 (25 U.S.C.
381), or any other provision of law or otherwise request relief from
the Secretary until the member, allottee, or owner exhausts each applicable
remedy under the tribal water code or other applicable tribal or Federal
law.
(f) Lease of Tribal Water Right-
(1) IN GENERAL- The Tribe, without approval of the Secretary, may
lease any portion of the tribal water right in accordance with article
IV.D.2 of the Compact for use off the Reservation within the Missouri
River Basin, subject to the tribal water code and the terms and conditions
of the Compact and applicable Federal law.
(2) USE OF FUNDS- Any funds paid to the Tribe under a lease under
this subsection shall be the property of the Tribe, and the United
States shall have no trust or other obligation to monitor, administer,
or account for the funds.
(3) PROHIBITION ON PERMANENT ALIENATION- No portion of the tribal
water right may be permanently alienated pursuant to a lease under
this subsection.
SEC. 8. BLACKFEET LAND AND WATER DEVELOPMENT FUND.
(a) Establishment- There is the established in the Treasury of the United
States a fund, to be known as the `Blackfeet Land and Water Development
Fund' (referred to in this section as the `Fund'), to be used to pay
or reimburse costs incurred by the Tribe for--
(1) the acquisition of land or water rights;
(2) water resources planning, development, and construction, including
storage and irrigation;
(3) agricultural development;
(4) restoring or improving fish or wildlife habitat;
(5) fish or wildlife production;
(6) any other water storage project, land or land-related project,
or water or water-related project;
(7) cultural preservation;
(8)(A) the operation and maintenance of water and water-related projects;
and
(B) environmental compliance relating to those projects constructed
under this Act;
(9) development and support of administrative infrastructure to implement
the Compact, the Birch Creek Agreement, and this Act, including the
development of the tribal water code;
(10) design and construction of water supply and sewer systems and
related facilities for tribal communities;
(11) measures to address environmental conditions on the Reservation;
and
(12) water-related economic development projects.
(b) Management- The Secretary shall manage the Fund in accordance with
the American Indian Trust Fund Management Reform Act of 1994 (25 U.S.C.
4001 et seq.), this Act, and the Compact.
(c) Investment- The Secretary shall invest amounts in the Fund in accordance
with--
(1) the Act of April 1, 1880 (25 U.S.C. 161); and
(2) the first section of the Act of June 24, 1938 (25 U.S.C. 162a).
(d) No Fiscal Year Limitation- Amounts made available under this Act
shall be available for expenditure or withdrawal without fiscal year
limitation.
(e) Expenditures and Withdrawals-
(1) TRIBAL MANAGEMENT PLAN-
(A) IN GENERAL- The Tribe may withdraw any portion of amounts in
the Fund on approval by the Secretary of a tribal management plan
under 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 that Act
(25 U.S.C. 4001 et seq.), the tribal management plan shall require
that the Tribe shall use any amounts withdrawn from the Fund for
the purposes described in subsection (a).
(C) ACTION BY SECRETARY- The Secretary may take judicial or administrative
action to enforce the provisions of a tribal management plan to
ensure that amounts withdrawn from the Fund under the plan are used
in accordance with this Act and the Compact.
(D) LIABILITY- On withdrawal by the Tribe of amounts in the Fund,
the Secretary and the Secretary of the Treasury shall not retain
liability for the expenditure or investment of those amounts.
(A) IN GENERAL- The Tribe shall submit to the Secretary for approval
an expenditure plan for any portion of the amounts in the Fund that
the Tribe does not withdraw pursuant to this subsection.
(B) DESCRIPTION- The expenditure plan shall describe the manner
in which, and the purposes for which, the amounts remaining in the
Fund will be used.
(C) APPROVAL- The Secretary shall approve an expenditure plan under
this paragraph if the Secretary determines that the plan is--
(ii) consistent with this Act and the Compact.
(3) REPORTS- The Tribe shall submit to the Secretary an annual report
that describes each expenditure from the Fund during the year covered
by the report.
(f) Per Capita Distributions- No portion of the Fund or the income accruing
to the Fund shall be distributed to any member of the Tribe on a per
capita basis.
SEC. 9. BIRCH CREEK MITIGATION FUND.
(a) Establishment- There is established in the Treasury of the United
States a fund, to be known as the `Birch Creek Mitigation Fund' (referred
to in this section as the `Fund') to be used to mitigate the impacts
of development of the tribal water right described in article III.C.1.
of the Compact on the Birch Creek water supplies of the Pondera County
Canal and Reservoir Company Project.
(b) Management- The Secretary, acting through the Commissioner of Reclamation,
shall manage the Fund in accordance with this section.
(c) Disbursement of Fund- Amounts from the Fund may not be disbursed
until the expiration of the term of the Birch Creek Agreement.
(d) Authorization of Appropriations- There are authorized to be appropriated
to carry out this section such sums as are necessary.
SEC. 10. WATER RIGHTS IN LEWIS AND CLARK NATIONAL FOREST.
As part of the tribal water right, the Tribe shall hold the rights to
water in the Lewis and Clark National Forest identified in the applicable
claims filed by the United States on behalf of the Tribe, as those claims
are finally decreed by the Montana Water Court.
SEC. 11. MILK RIVER WATER RIGHTS.
(a) Identification of Alternatives- The Secretary shall identify and
implement alternatives to resolve any conflict between the Milk River
water rights of the Tribe and the Fort Belknap Indian Community in a
manner that ensures that the full allocation of the water rights of
each Indian tribe under the water rights compacts of the Indian tribes
are fully satisfied.
(b) Agreement of Tribes- The Secretary shall obtain the agreement of
the Tribe and the Fort Belknap Indian Community to any alternative identified
under subsection (a).
(c) Funding- Amounts used by the Secretary to implement any alternative
identified under subsection (a) shall be in addition to the amounts
authorized for the water rights settlements of the Tribe and the Fort
Belknap Indian Community.
SEC. 12. WAIVERS AND RELEASES OF CLAIMS.
(a) Waiver and Release of Claims by Tribe and United States as Trustee
for Tribe- As a condition for recognition of the tribal water right
and other benefits under the Compact and this Act and subject to the
retention of claims and rights under subsection (c), the Tribe and the
United States, acting as trustee for the Tribe and the allottees, shall
waive and release each claim for a water right that is or could be asserted
in the civil action styled `In the Matter of the Adjudication of the
Existing and Reserved Rights to the Use of Water, Both Surface and Underground,
of the Blackfeet Tribe of the Blackfeet Reservation within the State
of Montana' and numbered WC-91-1, except to the extent that such a claim
is recognized in the Compact or this Act.
(b) Claims Against United States- As a condition of receiving the tribal
water right and other benefits under the Compact and this Act and subject
to the retention of claims and rights under subsection (c), the Tribe
shall waive and release each claim against the United States--
(1) for a water right that is or could be asserted in the civil action
referred to in subsection (a);
(2) for failure to protect, acquire, replace, or develop any water
right that accrued as of the date of enactment of this Act; or
(3) arising from the negotiation or adoption of the Compact.
(c) Retention of Certain Claims and Rights- Notwithstanding the waivers
and releases required under this section, the Tribe and the United States,
acting as trustee for the Tribe and the allottees, shall retain--
(1) all claims for enforcement of--
(B) any consent decree that settles a water right claim of the Tribe;
or
(2) all rights to use and protect any water right acquired after the
date of enactment of this Act;
(3) all claims to water rights filed by the United States on behalf
of the Tribe in Glacier National Park for rights retained under the
agreement dated September 19, 1895, and ratified on June 10, 1896
(29 Stat. 321, chapter 398), unless the water right claims are dismissed
in their entirety on entry of a final nonappelable decision by a court
of competent jurisdiction in any civil action to which the Tribe is
a party;
(4) all claims relating to activities affecting quality of water;
and
(5) all rights, remedies, privileges, immunities, and powers not specifically
waived and released pursuant to the Compact or this Act.
(d) Effective Date of Release and Waivers- The waivers under subsection
(a) shall take effect on the enforceability date.
(1) IN GENERAL- The enforceability date is the date on which the Secretary
publishes in the Federal Register a statement of findings that--
(A) all parties to the Compact have executed the Compact;
(B) the Montana Water Court has issued a final judgment and decree
approving the Compact, or if the Montana Water Court lacks jurisdiction,
the United States district court for the appropriate jurisdiction
has approved the Compact as a consent decree, and that approval
is final;
(C) the Compact has been ratified by a majority of eligible members
of the Tribe voting in a referendum conducted by the Tribe pursuant
to tribal law;
(D) the waivers and releases under subsection (a) have been executed
by the Tribe and the Secretary;
(E) the Tribe and the Secretary have entered into the agreement
described in section 5(a)(2)(A);
(F) the Secretary has fulfilled the requirements of section 5(b)(1);
and
(G) the amounts authorized to be appropriated under section 14 have
been appropriated.
(2) EFFECT OF FAILURE TO PUBLISH- If the Secretary fails to publish
a statement of findings under paragraph (1) by December 31, 2016,
or such extended date as is agreed to by the Tribe and the Secretary
after reasonable notice to the State--
(A) the ratification of the Compact is void;
(B) the waivers and release of claims under this Act are nullified;
(C) the authority provided by this Act shall terminate; and
(D) any unexpended or uncommitted funds made available under section
14 shall revert to the general fund of the Treasury.
(A) 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 to carry out this Act are appropriated.
(B) EFFECT OF SUBSECTION- Nothing in this subsection revives any
claim or tolls any period of limitation or time-based equitable
defense that expired before the date of enactment of this Act.
(f) Effect- Nothing in the Compact or this Act--
(1) affects the ability of the United States to carry out any action--
(A) authorized by law (including regulations), including any law
relating to health, safety, or the environment (including the Federal
Water Pollution Control Act (33 U.S.C. 1251 et seq.), the Safe Drinking
Water Act (42 U.S.C. 300f et seq.), the Comprehensive Environmental
Response, Compensation, and Liability Act of 1980 (42 U.S.C. 9601
et seq.), and the Solid Waste Disposal Act (42 U.S.C. 6901 et seq.));
or
(B) as trustee for any other Indian tribe or the allottees; or
(2) confers jurisdiction on any State court--
(A) to enforce Federal environmental law regarding the duties of
the United States; or
(B) to conduct judicial review of a Federal agency action.
SEC. 13. MISCELLANEOUS PROVISIONS.
(a) Consent to Jurisdiction-
(1) IN GENERAL- Except as provided in paragraph (2), the United States
consents to the jurisdiction of--
(A) the Blackfeet-Montana Compact Board to achieve resolution of
any dispute under the Compact; and
(B) any court of competent jurisdiction for the enforcement of a
decision of that board.
(2) EXCEPTION- The consent of the United States to jurisdiction under
paragraph (1) does not extend to any civil action for monetary damages,
costs, or attorney's fees.
(b) No Effect on Other Indian Tribes- Nothing in this Act quantifies
or diminishes any land or water right, or any claim or entitlement to
land or water, of an Indian tribe other than the Tribe.
(c) No Major Federal Action- The execution of the Compact by the Secretary
shall not constitute a major Federal action under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.).
(d) Compliance With Federal Law- In carrying out the Compact, the Secretary
shall comply with--
(1) the National Environmental Policy Act of 1969 (42 U.S.C. 4321
et seq.);
(2) the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.); and
(3) all other applicable Federal environmental law (including regulations).
(e) Seeking Other Funds- Nothing in this Act prohibits the Tribe from
seeking additional funds for tribal programs or purposes or other funds
from the United States or the State based on the status of the Tribe
as an Indian tribe.
(f) Acquisition and Exercise of Other Water Rights- Nothing in this
Act or the Compact precludes the acquisition or exercise of--
(1) a State water right by the Tribe or any member of the Tribe outside
the Reservation through purchase of the right, establishment of title
to land outside the Reservation, or submission of an application in
accordance with State law, except as provided in article III.J of
the Compact; or
(2) a Federal reserved water right associated with Federal land outside
the Reservation as the result of--
(A) the transfer of that land to the Tribe; or
(B) the establishment of title by the Tribe to the land.
(g) Objections to Claims- Nothing in this Act or the Compact prohibits
the Tribe, a member of the Tribe, an allottee, or the United States
in any capacity from objecting to any claim to a water right filed in
any general stream adjudication in the Montana Water Court.
(h) Import and Storage in Basins- Nothing in this Act or the Compact
prevents the Tribe from participating in any project to import water
to, or improve storage in, any basin affecting the Reservation.
(i) Enforcement of Existing Law; Damage Claims- Nothing in the Compact
or this Act limits--
(1) the ability of the United States, the State, or the Tribe to enforce
any Federal, State, or tribal law (including common law) relating
to the protection of the environment; or
(2) the right to bring any claim of the Tribe, a member of the Tribe,
or an allottee, or of the United States on behalf of the Tribe, a
member of the Tribe, or an allottee, for--
(A) damage to water quality on the Reservation; or
(B) depletion of surface flows or groundwater.
(j) No Precedent- Nothing in this Act establishes a precedent in any
civil action relating to--
(1) a reserved water right; or
(2) the interpretation or administration of any compact between the
United States and any State.
(k) No Effect on Services or Programs for Indians- No payment made or
benefit provided pursuant to this Act shall result in the reduction
or denial of any Federal service or program to any Indian tribe or member
of an Indian tribe to which the Indian tribe or member is otherwise
entitled or eligible for because of--
(1) the status of the Tribe as a federally recognized Indian tribe;
or
(2) the status of such a member as an Indian.
(l) Preference- Applications of the Tribe shall be given preference
under section 7(a) of the Federal Power Act (16 U.S.C. 800(a)) for issuance
of any preliminary permit or license involving a Federal facility within
the Reservation.
(m) Conflicts Between Act and Compact- If a provision of this Act conflicts
with a provision of the Compact, the provision of this Act shall prevail.
SEC. 14. AUTHORIZATION OF APPROPRIATIONS.
(a) St. Mary River Allocation- There are authorized to be appropriated
to the Secretary such sums as are necessary to carry out section 5(a).
(b) Blackfeet Irrigation Project- There is authorized to be appropriated
to the Secretary to carry out section 5(d) $125,000,000, adjusted as
appropriate based on ordinary fluctuations during the period beginning
on May 1, 2011, and ending on the date on which that amount is appropriated
in construction cost indices applicable to the types of construction
involved in the rehabilitation and improvement activities under that
section.
(c) Blackfeet Land and Water Development Fund- There is authorized to
be appropriated to the Secretary for deposit in the Blackfeet Land and
Water Development Fund established by section 8(a) $93,200,000 for each
of fiscal years 2012 through 2016.
(d) Milk River Water Rights- There are authorized to be appropriated
to the Secretary such sums as are necessary to carry out section 11
(including the implementation of alternatives identified under subsection
(a) of that section).
END
