[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[H.R. 3301 Introduced in House (IH)]
112th CONGRESS
1st Session
H. R. 3301
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 HOUSE OF REPRESENTATIVES
November 1, 2011
Mr. Rehberg introduced the following bill; which was referred to the
Committee on Natural Resources
_______________________________________________________________________
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.
Congress finds that--
(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.
In this Act:
(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
(B) water that is--
(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.
(9) Milk river project.--
(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;
(ii) the Fresno Dam; and
(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) St. Mary River.--
(1) Allocation of water.--
(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.--
(A) Agreement.--
(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.
(ii) Mediation.--
(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
(B) was inadequate.
(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.
(c) Lake Elwell.--
(1) Allocation.--
(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.
(3) Transfer of title.--
(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.
(a) Ratification.--
(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.
(b) Execution.--
(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.
(e) Tribal Water Code.--
(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.
(2) Approval required.--
(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 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.
(2) Expenditure plan.--
(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--
(i) reasonable; and
(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.
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--
(A) the Compact;
(B) any consent decree that settles a water right
claim of the Tribe; or
(C) this Act;
(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.
(e) 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.
(3) Tolling of claims.--
(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).
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