The 64th Annual New Mexico Water Conference Buffalo Thunder Resort - - PowerPoint PPT Presentation

Pamela Williams, Director Secretary’s Indian Water Rights Office November 6-8 The 64th Annual New Mexico Water Conference Buffalo Thunder Resort and Casino

Settlement versus Litigation

 For almost 50 years the United States has followed a policy of

preferring negotiated settlements over protracted and divisive litigation

 Many, if not most, tribes, states and local parties also agree that

settlement is the best approach to resolve Indian water rights disputes

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Completed Settlements

Department of the Interior (DOI) has completed 36 Indian water rights settlements since 1978

– Congressionally Approved → 32 – Administratively Approved by DOI & Department of

Justice (DOJ) → 4

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Enacted Settlements

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Settlement Year Public Law State Settlement Year Public Law State

Pechanga 2016 P.L. 114-322 CA Rocky Boys 1999 P.L. 106-163 MT Choctaw-Chickasaw 2016 P.L. 114-322 OK Yavapai-Prescott 1994 P.L. 103-434 AZ Blackfeet 2016 P.L. 114-322 MT Jicarilla Apache 1992 P.L. 102-441 NM Bill Williams River (Hualapai) 2014 P.L. 113-223 AZ Northern Cheyenne 1992 P.L. 102-374 MT Pyramid Lake Paiute-Fish Springs 2014 P.L. 113-169 NV Ute 1992 P.L. 102-575 UT White Mountain Apache 2010 P.L. 111-291 AZ San Carlos Apache 1992 P.L. 102-575 AZ Crow Tribe 2010 P.L. 111-291 MT Fort Hall 1990 P.L. 101-602 ID Taos Pueblo 2010 P.L. 111-291 NM Fort McDowell 1990 P.L. 101-628 AZ Aamodt 2010 P.L. 111-291 NM Fallon Paiute Shoshone 1990 P.L. 101-618 NV Navajo-San Juan 2009 P.L. 111-11 NM Truckee-Carson-Pyramid Lake 1990 P.L. 101-618 NV Duck Valley 2009 P.L. 111-11 NV Colorado Ute 1988 P.L. 100-585 CO Soboba 2008 P.L. 110-297 CA Salt River Pima-Maricopa 1988 P.L. 100-512 AZ Nez Perce 2004 P.L. 108-447 ID San Luis Rey 1988 P.L. 100-675 CA Gila River 2004 P.L. 108-451 AZ Seminole Land Claims 1987 P.L. 100-228 FL Zuni 2003 P.L. 108-34 AZ SAWRSA 1982 P.L. 97-293 AZ Shivwits 2000 P.L. 106-263 UT Ak-Chin 1978 P.L. 95-328 AZ

Settlement Negotiations

 Settlement negotiations frequently evolve from litigation

but can also occur without litigation

 DOI provides technical and other assistance to the tribes  Settlement agreements vary from multi-party agreements

to compacts among the state, tribe, and Federal Government

 When agreement is reached, parties typically seek Federal

approval in the form of Federal legislation

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Benefits of Settlements

 Wet Water

Provide “wet water” to tribes; litigation provides “paper water”

 Win-Win

Provide water to tribes while protecting existing non- Indian water users

 Local Solutions

Allow parties to develop and implement creative solutions to water use problems based on local knowledge and values

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Benefits of Settlements (cont’d)

 Certainty and Economic Development

• Provide certainty to tribes and neighboring communities,

support economic development for tribes, and replace historic tension with cooperation

 Trust Responsibility

• Consistent with the Federal trust responsibility and

Federal policy of promoting Indian self-determination and economic self-sufficiency

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Taos Pueblo

Protecting habitat, natural and cultural resources at Buffalo Pasture at Taos Pueblo

Navajo-Gallup

• By end of 2020
• First project water deliveries will be made through

Cutter Lateral

• All but appx 30 miles of the appx 300 miles of

pipeline will either be: completed, under construction, or under contract to be constructed.

• On track for project completion in 2024.

Navajo- Gallup

A section of 42-inch steel pipe being installed on Block 9-11 Aerial view of construction of Cutter Water Treatment Plant

Navajo-Gallup

Exterior view of the Tohlakai Pumping Plant from the Southeast – 4/12/17

Who is at the Table for the Federal Government?

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 The Department of the Interior's Working Group on Indian Water Settlements

 Chaired by Alan Mikkelsen, Senior Advisor to the Secretary  Composed of all Assistant Secretaries and the Solicitor  Provides Policy Guidance for the Indian Water Rights Settlement Program

 The Secretary’s Indian Water Rights Office

 Manages the Indian Water Rights Settlement Program

 Local Federal Negotiation Teams

 Primary manner in which the Federal Government participates in settlement

activity

 21 - Negotiation Teams  17 - Implementation Teams 

2 - Assessment Team

Team Structure

 Team Membership

 Agencies most typically represented on teams:

 Bureau of Indian Affairs (BIA)  Bureau of Reclamation (BOR)  Fish and Wildlife Service (FWS)  Office of the Solicitor (SOL)  Department of Justice (DOJ)  Can include any DOI or other Federal Department having an interest

 Teams are typically staffed at the local level

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 Negotiation Teams

 Abousleman - Pueblo of Jemez, Publo of Zia, Pueblo of Santa Ana  Kerr McGee - Publo of Acoma, Pueblo of Laguna, & Navajo Nation  Zuni-Ramah - Zuni Tribe & Ramah Navajo Nation

 Implementation Teams

 Aamodt - Pueblo of Nambe, Pueblo of San Ildelfonso, & Pueblo of

Tesuque

 Navajo-San Juan – Navajo Nation  Taos – Pueblo of Taos

 Assessment Teams

 Ohkay Owingeh - Ohkay Owingeh

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Settlement Teams in New Mexico

Criteria and Procedures

The Criteria & Procedures for Participation of Federal Government in Negotiating for Settlement of Indian Water Rights Claims, 55

• Fed. Reg. 9223-9225,
• Mar. 12, 1990

– Provide guidelines for Administration’s participation in

settlements

– Include factors to be considered in deciding Federal

contribution to settlement cost share

– Require non-Federal cost sharing

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Federal Settlement Legislation

 Basic parameters of the settlement and legislation

approved by Working Group and OMB

 Legislation drafted and introduced  Hearings scheduled  DOI prepares initial draft testimony which is then reviewed

and revised through the OMB clearance process before being submitted to Congress

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Federal Costs of Settlements

 Federal funding required by Indian water settlements has

significantly increased over time

 Roughly a billion dollars expended between mid 1980s and

2002 but more than $2 billion authorized between 2009-2016

 Funding of Indian Water Rights Settlements comes out of the

budgets of both the Bureau of Indian Affairs and the Bureau of Reclamation.

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Settlement Funding

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$0 $100 $200 $300 $400 $500 $600 $700 $800 $900 $1,000

1978 1980 1982 1984 1986 1988 1990 1992 1994 1996 1998 2000 2002 2004 2006 2008 2010 2012 2014 2016

Millions $

Share of Settlement Funding by Agency

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0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100%

Share of Settlement Funding by Agency

BIA Reclamation

Settlement Funding (cont’d)

 Omnibus Public Land Management Act (P.L. 111-11)

Established Reclamation Water Settlement Fund

 $120 million for each of 10 years beginning in 2020 (total

• f $1.2 billion)

 Funding is allocated based on priorities within the Act:

Navajo-Gallup Water Supply Project; other NM Settlements; Montana Settlements; Arizona Settlement (Navajo Nation’s claims in the Lower CO River Basin)

 Will not provide a funding source for all new settlements

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RWSF Priorities

 Priority I. Navajo-Gallup Water Supply Project (Mandated to be fully

appropriated by December 2024)

 Priority II. Other New Mexico Settlements:

 Aamodt Litigation Settlement (Mandated to be fully appropriated by June 2024)  Taos Pueblo Indian Water Rights (Fully funded)

 Priority III. Montana Settlements:

 Blackfeet Water Rights Settlement (Mandated to be fully appropriated by

January 2025)

 Crow Tribe Water Rights Settlement (Mandated to be fully appropriated by June

2030)

 Ft. Belknap Indian Reservation (if settlement is authorized by December 31,

2019)

 Priority IV. Arizona Settlements:

 Arizona—Navajo Nation: Lower Colorado River basin (if settlement is

authorized by December 31, 2019)

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DOI Funding

FY 2018 FY 2019 FY 2020 (Request) SIWRO $1,370,000 $1,380,000 $1,370,000 Reclamation $6,069,000 $7,330,000 $5,992,000 BIA $18,061,000 $18,011,000 $16,571,000 TOTAL* $27,094,000 $26,917,000 $25,025,000 *includes funding provided by other DOI Bureaus

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Fiscal Year 2020 Appropriations

 The House passed both the Interior-Environment and the Energy and

Water Development appropriations bills.

 The Senate passed the Interior-Environment bill but not the Energy

and Water Development bill. The Interior-Environment bill will go to conference between the House and the Senate.

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Recent Settlements

 Amendment to the White Mountain Apache Tribe Water Rights

Quantification Act of 2010 (P.L. 115-227)  Amendment to the Blackfeet Water Rights Settlement Act of 2016

(P.L. 115-270)

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Pending Legislation

 Settlements introduced in 116th Congress:

 RWSF Extension – S. 886/H.R. 1904 introduced in March 2019.

Hearings held in April and July 2019.

 Navajo Utah - S. 1207/H.R. 644 introduced in January and April

• 2019. Hearing held in June 2019. Reported out of Senate

Committee on Indian Affairs in September 2019.

 Aamodt Amendment - S. 1875/H.R. 3292 introduced in June 2019.

Hearing held in June 2019.

 Hualapai- S. 1277/H.R. 2459 introduced in May 2019. Hearing

held in June 2019.

 Kickapoo- S. 1977/H.R. 3491 introduced in June 2019

 Legislation not yet introduced in Congress but expected soon:

 Confederated Salish and Kootenai Tribes

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Future Challenges

 We are facing great challenges in seeing that Indian tribes

receive the substantial economic benefit that the Federal Indian reserved water rights doctrine can confer

 While it has always been important for tribes to realize this

economic potential, it has become even more important in the current era of strained Federal budgets

 Now, more than ever, tribes need to seize the opportunity

inherent in their reserved water rights to become economically self sufficient