in the united states court of appeals crow allottees … · 2017. 7. 7. · 208 f.2d 406 (9th cir....

No. 15-35679

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CROW ALLOTTEES ASSOCIATION, et al.,

Plaintiffs-Appellants

v.

UNITED STATES BUREAU OF INDIAN AFFAIRS, et al.,

Defendants-Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MONTANA

RESPONSE BRIEF OF THE FEDERAL APPELLEES

JOHN C. CRUDEN Assistant Attorney General

JOHN L. SMELTZER MARY GABRIELLE SPRAGUE

Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415 Washington, D.C. 20044 (202) 514-2753 [email protected]

Case: 15-35679, 06/08/2016, ID: 10007223, DktEntry: 28, of 153

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TABLE OF CONTENTS

PAGE JURISDICTIONAL STATEMENT .......................................................................... 1 STATEMENT OF THE ISSUES............................................................................... 1 STATEMENT OF THE CASE .................................................................................. 3

A. Background ........................................................................................... 3 1. The Crow Reservation ................................................................ 3

2. Indian Water Rights .................................................................... 5

3. The Compact ............................................................................... 7

4. The Settlement Act...................................................................... 8

5. Montana Water Court Proceedings ........................................... 13

6. Montana Supreme Court and U.S. Supreme Court

Proceedings ............................................................................... 15

B. The District Court Proceedings ........................................................... 17 1. The Complaint ........................................................................... 17

2. The Federal Defendants’ Motion for Judgment on the

Pleadings ................................................................................... 19

3. The District Court’s Orders ...................................................... 22

C. The Allottees’ Voluntary Dismissal of the Appeal as to the State Water Judges ....................................................................................... 24

SUMMARY OF ARGUMENT ............................................................................... 24


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STANDARD OF REVIEW ..................................................................................... 26 ARGUMENT ........................................................................................................... 27

I. The Allottees’ Assertion of Procedural Injury During the Negotiation of the Compact and Settlement Act Is Subject to Dismissal for Lack of Standing .......................................................................................... 28

II. The Allottees’ Assertion of Substantive Injury from Congress’s Ratification of the Compact through the Settlement Act Is Subject to Dismissal for Failure to State a Claim ................................................ 33

III. The Allottees’ Claim for Procedural Injury during the Montana

Water Court Proceedings Is Subject to Dismissal Because They Failed to State a Claim and Any Claim Is Now Moot ........................ 40

IV. The District Court Correctly Concluded that the Allottees Have Not

Established a Relevant Waiver of Sovereign Immunity ..................... 45

CONCLUSION ........................................................................................................ 51 STATEMENT OF RELATED CASES CERTIFICATE OF COMPLIANCE CERTIFICATE OF SERVICE


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TABLE OF AUTHORITIES CASES: Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972)................................................................................. 47, 48 Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975)....................................................................................... 43 Arenas v. Preston, 181 F.2d 62 (9th Cir. 1950) ........................................................................... 47 Big Horn County Elec. Coop., Inc. v. Adams, 219 F.3d 944 (9th Cir. 2000) ........................................................................... 5 Cappaert v. United States, 426 U.S. 128 (1976)......................................................................................... 5 Christoffel v. United States, 338 U.S. 84 (1949) ......................................................................................... 31 Colorado River Conservation District v. United States, 424 U.S. 800 (1976)......................................................................................... 6 Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) ............................................................................. 6 Cunningham v. United States, 786 F.2d 1445 (9th Cir. 1986) ....................................................................... 46 Gator.com Corp. v. L.L. Bean, Inc., 398 F.3d 1125 (9th Cir. 2006) ....................................................................... 45 Gerard v. United States, 167 F.2d 951 (9th Cir. 1948) ......................................................................... 47 Gros Ventre Tribe v. United States, 469 F.3d 801 (9th Cir. 2006) ......................................................................... 32


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Guggenheim v. City of Goleta, 638 F.3d 1111 (9th Cir. 2010) (en banc) ....................................................... 39 Harger v. Dept. of Labor, 569 F.3d 898 (9th Cir. 2009) ................................................................... 26, 46 Heckler v. Chaney, 470 U.S. 821 (1985)....................................................................................... 43 Hodel v. Irving, 481 U.S. 704 (1987)......................................................................................... 4 In re Crow Water Compact, 354 P.3d 1217 (Mont. 2015) ................................................................ 8, 13-16 In re Crow Water Compact, 364 P.3d 584 (Mont. 2015) ............................................................................ 16 Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502 (9th Cir. 1997) ................................................................... 26, 44 INS v. Chadha, 462 U.S. 919 (1983)....................................................................................... 31 Jachetta v. United States, 653 F.3d 898 (9th Cir. 2011) ................................................................... 23, 48 Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221 (1986)....................................................................................... 44 Kougasian v. TMSL, Inc., 359 F.3d 1136 (9th Cir. 2004) ....................................................................... 23 Lane v. Pena, 518 U.S. 187 (1996)....................................................................................... 46 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....................................................................................... 29


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McGlinchy v. Shell Chem. Co., 845 F.2d 802 (9th Cir. 1988) ......................................................................... 26 Montana v. Crow Tribe, 523 U.S. 696 (1998)......................................................................................... 7 Montana v. United States, 450 U.S. 544 (1981)..................................................................................... 2-5 Muniz v. United Parcel Service, Inc., 738 F.3d 214 (9th Cir. 2013) ......................................................................... 26 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) ......................................................................... 26 Norton v. S. Utah Wilderness Alliance, 542 U.S. 55 (2004) ......................................................................................... 20 Oregon Natural Resources Council v. Harrell, 52 F.3d 1499 (9th Cir. 1995) ......................................................................... 44 Pence v. Kleppe, 529 F.2d 135 (9th Cir. 1976) ......................................................................... 47 Pinkham v. Lewiston Orchards Irrigation Dist., 862 F.2d 184 (9th Cir. 1988) ......................................................................... 48 Pyramid Lake Paiute Tribe of Indians v. Morton, 499 F.2d 1095 (D.C. Cir. 1974) ..................................................................... 43 Rincon Band of Mission Indians v. Escondido Mut. Water Co., 459 F.2d 1082 (9th Cir. 1972) ................................................................. 20, 42 Ruckelshaus v. Monsanto Co., 467 U.S. 986 (1984)....................................................................................... 39 Ruvalcaba v. City of Los Angeles, 167 F.3d 514 (9th Cir. 1999) ......................................................................... 45


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Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) ......................................................................................... 41 Scholder v. United States, 428 F.2d 1123 (9th Cir. 1970) ................................................................. 47-49 Shoshone Tribe of Indians v. United States, 299 U.S. 476 (1937)....................................................................................... 34 Shoshone-Bannock Tribes v. Reno, 56 F.3d 1476 (D.C. Cir. 1995) ....................................................................... 43 Siniscal v. United States, 208 F.2d 406 (9th Cir. 1953) ................................................................... 42, 43 Taylor v. Yee, 780 F.3d 928 (9th Cir. 2015) ......................................................................... 26 United States v. Creek Nation, 295 U.S. 103 (1935)....................................................................................... 34 United States v. Eastman, 118 F.2d 421 (9th Cir. 1941) ................................................................... 46, 47 United States v. Gila River Pima-Maricopa Indian Community, 391 F.2d 53 (9th Cir. 1968) ........................................................................... 42 United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) ............................................................................. 32, 34 United States v. Mottaz, 476 U.S. 834 (1986)........................................................................... 22-23, 48 United States v. Pierce, 235 F.2d 885 (9th Cir. 1956) ......................................................................... 48 United States v. Powers, 305 U.S. 527 (1939)............................................................................. 4, 16, 37


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United States v. Preston, 352 F.2d 352 (9th Cir. 1965) ......................................................................... 46 United States v. Shoshone Tribe, 304 U.S. 111 (1938)......................................................................................... 5 United States v. Sioux Nation of Indians, 448 U.S. 371 (1980)................................................................................. 34, 35 United States v. White Mountain Apache Tribe, 784 F.2d 917 (9th Cir. 1986) ........................................................................... 5 Washington Environmental Council v. Bellon, 732 F.3d 1131 (9th Cir. 2013) ........................................................... 26, 28-29 Winters v. United States, 207 U.S. 564 (1908)........................................................... 3, 5, 25, 35, 47, 49


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STATUTES: Administrative Procedure Act: 5 U.S.C. 704 ....................................................................................... 27, 45, 49 5 U.S.C. 706(1) ............................................................................ 20, 44, 45, 49 5 U.S.C. 706(2) ......................................................................21, 22, 23, 27, 49 25 U.S.C. 175 ............................................................. 3, 18, 20, 21, 25, 29, 32, 40-43 25 U.S.C. 345 ................................................................................... 21, 22, 27, 45-49 25 U.S.C. 348 ............................................................................................................. 4 25 U.S.C. 381 ................................................................................................. 6, 10, 37 25 U.S.C. 462 ............................................................................................................. 4 25 U.S.C. 463 ............................................................................................................. 4 28 U.S.C. 1291 ........................................................................................................... 1 28 U.S.C. 1331 ........................................................................................................... 1 28 U.S.C. 1346(a)(2) ................................................................................................ 38 28 U.S.C. 1353 .................................................................................21, 22, 27, 45, 49 28 U.S.C. 1361 ......................................................................................................... 44 28 U.S.C. 1491(a)(1) ................................................................................................ 38 28 U.S.C. 2412 ......................................................................................................... 44 43 U.S.C. 666 ............................................................................................................. 6


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Treaty of Fort Laramie of May 7, 1868, 15 Stat. 649 ...................................................................................................... 3 General Allotment Act, ch. 119, 24 Stat. 388 (1887) ............................................................................. 4 Act of March 3, 1893, ch. 209, 27 Stat. 631 ...................................................................................... 42 Act of August 15, 1894, ch. 290, 28 Stat. 305 ...................................................................................... 46 Crow Allotment Act of 1920, ch. 224, 41 Stat. 751 ........................................................................................ 4 Indian Reorganization Act, ch. 576, 48 Stat. 984 (1934) ............................................................................. 4 Indian Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 77 ..................................................................... 41 Pub. L. No. 93-351, 88 Stat. 1712 (1974) ................................................................ 42 Snake River Water Rights Act of 2004, Pub. L. No. 108-447, 118 Stat. 3431 ............................................................. 37 Arizona Water Settlements Act of 2004, Pub. L. No. 108-451, 118 Stat. 3502 ............................................................. 37 Crow Tribe Water Rights Settlement Act of 2010, Pub. L. No. 111-291, 124 Stat. 3097 ................................. 8-13, 35, 36, 38, 50 U.S. CONSTITUTION: U.S. Const. art. I, § 5, cl. 2 ....................................................................................... 31 U.S. Const. art. I, § 8, cl. 3 ....................................................................................... 34 U.S. Const. art. III, § 2 ............................................................................................. 28


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U.S. Const. Amendment V ................................................................................ 25, 34 RULES AND REGULATIONS: Fed. R. App. P. 32(a) ................................................................................................. 1 Fed. R. App. P. 28(j) ................................................................................................ 45 Fed. R. App. P. 43(c)(2) ............................................................................................. 1 Fed. R. Civ. P. 12(b)(1) ...................................................................................... 28, 40 Fed. R. Civ. P. 12(b)(6) ................................................................................ 26, 33, 40 Fed. R. Civ. P. 12(c) ................................................................................................. 26 Fed. R. Civ. P. 42(b) ................................................................................................ 24 STATE STATUTES: Mont. Code Ann. § 85-2-212 (1979) ............................................................... 6 Mont. Code Ann. § 85-2-702 (1979) ........................................................... 6-7 Crow Tribe-Montana Water Rights Compact: Mont. Code. Ann. § 85-20-901 (1999) ........................................................ 7, 8 TREATISES: 10 Moore’s Federal Practice 3d § 54.170, at 54-265 (2015) .................................. 43 2 Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 10.9 (5th ed. 2012) ................................... 31 3 Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 17.8(c) (5th ed. 2012) ........................ 31-32


JURISDICTIONAL STATEMENT

The Crow Allottees Association and fifteen individual allottees (the

“Allottees”)1 filed a putative class action against the Bureau of Indian Affairs, the

United States Department of the Interior, Sally Jewell in her official capacity as

Secretary of the Interior (the “Secretary”), and Lawrence Roberts in his official

capacity as Acting Assistant Secretary-Indian Affairs2 (collectively, the “Federal

Defendants”), asserting a breach of trust and other claims related to a water rights

compact and the federal statute ratifying the compact. They invoked the district

court’s jurisdiction under 28 U.S.C. 1331. In a June 30, 2015 Order and Judgment,

the district court dismissed the suit for lack of jurisdiction on the ground that the

United States had not waived its sovereign immunity as to any of the Allottees’

claims. The Allottees timely appealed. This Court has jurisdiction pursuant to 28

U.S.C. 1291.

STATEMENT OF THE ISSUES

In 1999, the Crow Tribe and the State of Montana entered into the Crow

Tribe-Montana Water Rights Compact (the “Compact”). Congress ratified the

1 The Allottees are members of the Crow Tribe who hold allotments on the Crow Indian Reservation in Montana. A class was never certified in this case. As used herein, “Allottees” refers to the plaintiffs in this case, not to all allottees on the Crow Indian Reservation. 2 Lawrence Roberts is automatically substituted as Assistant Secretary-Indian Affairs pursuant to Fed. R. App. P. 43(c)(2).


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Compact in 2010 through the Crow Tribe Water Rights Settlement Act (the

“Settlement Act”). In 2012, pursuant to the Compact and Settlement Act, the

Crow Tribe, Montana, and the United States filed a motion for entry of a proposed

decree in Montana Water Court. Some allottees objected on various grounds. The

Montana Water Court dismissed their objections, the Montana Supreme Court

affirmed, and the United States Supreme Court denied review. While these

objections were pending in the Montana Water Court, the Allottees filed this action

in federal district court against the Federal Defendants, complaining of both

procedural injuries and a substantive injury, and seeking declaratory and injunctive

relief.

The questions presented in this appeal are:

1. Whether the Allottees’ assertion of procedural injury (that the Federal

Defendants failed to provide private counsel to them and did not adequately

consult with them) during the negotiation of the Compact and Settlement Act is

properly dismissed on the ground that the Allottees lack standing because, even if

the Allottees stated a claim on which relief could be granted, upon Congress’s

enactment of the Settlement Act, the federal district court had no power to redress

their asserted procedural injury that allegedly occurred before Congress enacted

the Settlement Act.


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2. Whether the Allottees’ assertion of substantive injury (that the

Settlement Act deprived them of their federal water rights under Winters v. United

States, 207 U.S. 564 (1908)) is properly dismissed for failure to state a claim on

which relief can be granted because their only potential claim is a claim against the

United States for just compensation for a taking of their property, which claim they

have not asserted.

3. Whether the Allottees’ assertion of procedural injury (failure to

provide private counsel) during the Montana Water Court proceedings is properly

dismissed for failure to state a claim on which relief can be granted and mootness

because 25 U.S.C. 175 did not require the Federal Defendants to fund private

counsel for the Allottees, the requirements for mandamus are not met, and the

Allottees’ participation in the Montana Water Court proceedings has ended.

4. Whether the district court correctly concluded that the Allottees did

not establish a relevant waiver of sovereign immunity in this case.

STATEMENT OF THE CASE

A. Background

1. The Crow Reservation.

The Crow Tribe has lived in Montana for centuries. The Treaty of Fort

Laramie of May 7, 1868, 15 Stat. 649, reserved a large tract of land within the

Tribe’s aboriginal territory to serve as a homeland for the Tribe. See Montana v.


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United States, 450 U.S. 544, 547-548 (1981); United States v. Powers, 305 U.S.

527, 528 (1939). The Crow Reservation originally encompassed approximately

8 million acres, but subsequent congressional acts reduced the Reservation to its

present size of just under 2.3 million acres. See Montana, 450 U.S. at 548.

Decades after the Crow Reservation was established, Congress enacted the

General Allotment Act, ch. 119, 24 Stat. 388, which authorized the President to

“allot” land within Indian reservations for use by individual Indians for farming or

ranching. See Montana, 450 U.S. at 548. Congress also provided for the allotment

of irrigation and grazing lands on the Crow Reservation through the Crow

Allotment Act of 1920, ch. 224, 41 Stat. 751. Both acts provided that the allotted

land would be held by the United States in trust for a period of 25 years, after

which the Secretary of the Interior was to issue a fee patent to the named allottee.

See Montana, 450 U.S. at 548; see also 25 U.S.C. 348 (patents to be held in trust

for allottees).

The allotment policy proved “disastrous for the Indians” and was ended in

1934 by Congress upon enactment of the Indian Reorganization Act (“IRA”),

ch. 576, 48 Stat. 984. Hodel v. Irving, 481 U.S. 704, 707-708 (1987). The IRA

restored to tribal ownership unallotted reservation lands, 25 U.S.C. 463, and it

“extended and continued” indefinitely all “restriction[s] on alienation” on Indian

lands, 25 U.S.C. 462. Those actions left the Crow Reservation divided primarily


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into three categories of land ownership: (1) unallotted lands held by the United

States in trust for the Crow Tribe; (2) allotments as to which fee patents never

issued, which the United States holds in trust for individual Indians; and (3) fee

lands that were allotted and patented prior to the IRA, which are now owned

mostly by non-Indians. See Montana, 450 U.S. at 548; see also Big Horn County

Elec. Coop., Inc. v. Adams, 219 F.3d 944, 948 (9th Cir. 2000). Approximately

5,000 individual Indians have an interest in allotments on or near the Crow

Reservation. See Excerpts of Record (“ER”) 45 [Complaint ¶ 33].

2. Indian Water Rights

The establishment of an Indian reservation under federal law includes an

implied reservation of water necessary to accomplish the purposes of the

reservation. See Winters v. United States, 207 U.S. 564, 576-78 (1908). Upon the

establishment of a reservation, “the United States acquires a reserved right in

unappropriated water,” Cappaert v. United States, 426 U.S. 128, 138 (1976),

which it holds in trust for the benefit of the tribe. See, e.g., United States v.

Shoshone Tribe, 304 U.S. 111, 116-18 (1938) (United States holds legal title to

reservation lands, but tribe holds beneficial ownership of land and resources);

United States v. White Mountain Apache Tribe, 784 F.2d 917, 920 (9th Cir. 1986)

(United States as trustee has duty to preserve title to tribal water rights).


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Beginning with the General Allotment Act, Congress has authorized the

Secretary of the Interior to ensure an equitable sharing of reservation water among

Indian residents:

In cases where the use of water for irrigation is necessary to render the lands within any Indian reservation available for agricultural purposes, the Secretary of the Interior is authorized to prescribe such rules and regulations as he may deem necessary to secure a just and equal distribution thereof among the Indians residing on any such reservation . . . .

25 U.S.C. 381. See also Colville Confederated Tribes v. Walton, 647 F.2d 42, 51

(9th Cir. 1981) (applying the “just and equal” distribution standard).

The McCarran Amendment, ch. 651, 66 Stat. 560 (43 U.S.C. 666), waives

the sovereign immunity of the United States in a suit “for the adjudication of rights

to the use of water of a river system or other source.” In Colorado River

Conservation District v. United States, 424 U.S. 800 (1976), the Supreme Court

held that the McCarran Amendment gives state courts “concurrent” jurisdiction to

adjudicate federal water rights, including “federal reserved rights held on behalf of

Indians.” Id. at 809.

In the wake of that decision, the State of Montana enacted a statute

providing for the statewide adjudication of all water rights, including rights held by

“the United States of America on its own behalf or as trustee for any Indian or

Indian tribe.” Mont. Code Ann. § 85-2-212 (1979). Montana established a

commission to negotiate compacts to settle Indian water rights claims. Mont. Code


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Ann. § 85-2-702 (1979). Montana initiated a general stream adjudication which

included Crow tribal water rights, but that litigation was suspended during compact

negotiations. See Compact Art. I. The Compact is included in the Addendum at

1-37.

3. The Compact

In 1999, the efforts of the United States, the State of Montana, and the Crow

Tribe to resolve disputes over the quantification and administration of water rights

on the Crow Reservation culminated in the Crow Tribe-Montana Water Rights

Compact (which appears, as ratified, at Mont. Code. Ann. § 85-20-901 (1999)).

The Compact is intended to “settl[e] any and all existing water rights claims of or

on behalf of the Crow Tribe of Indians in the State of Montana.” Compact Pmbl.

It sets forth an agreed “Tribal Water Right” that includes specified rights to divert

and use water from the Bighorn River, the Little Bighorn River, and creeks and

drainages within the Crow Reservation and the “Ceded Strip” (defined to comprise

certain former reservation lands, now outside the Crow Reservation, that the

United States holds in trust for the Crow Tribe). Id. Art. III; see id. Art. II.7; see

Montana v. Crow Tribe, 523 U.S. 696, 700-01 (1998) (describing the ceded strip).

The Tribal Water Right encompasses “the right[s] of the Crow Tribe, including any

Tribal member,” Compact Art. II.30, which are to be held in trust by the United

States, id. Art. IV.A.1.


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The Compact assigns responsibility for administering the Tribal Water Right

to the Crow’s Tribal Water Resources Department. Compact Art. IV.A.2; see id.

Art. II.28. The Compact also requires the Crow Tribe to develop and adopt a

Tribal Water Code. Id. Art. IV.A.2.b. In administering water rights, “the Tribe

may not limit or deprive Indians residing on the Reservation or in the Ceded Strip

of any right, pursuant to 25 U.S.C. § 381, to a just and equal portion of the Tribal

Water Right.” Id. Art. IV.B.1.

The Compact specifies that, once it has been ratified by the Crow Tribal

Council, by the State of Montana, and by Congress, the parties shall file in the

Montana Water Court a “motion for entry of [a] proposed decree,” as set forth in

an appendix to the compact. Compact Art. VII.B.2; see id. App. 1 (proposed

decree). In June 1999, the Compact was ratified and enacted into law by the

Montana legislature. Mont. Code Ann. § 85-20-901 (1999). The Crow Tribe

ratified the Compact by a vote of its members in 2011. See In re Crow Water

Compact, 354 P.3d 1217, 1218 (Mont. 2015).

4. The Settlement Act

Congress approved the Crow Compact by enacting the Crow Tribe Water

Rights Settlement Act of 2010, Pub. L. No. 111-291, §§ 401-416, 124 Stat. 3097.

The Settlement Act is included in the Addendum at 38-63. The Settlement Act is

designed “to achieve a fair, equitable, and final settlement of claims to water rights


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in the State of Montana for the Crow Tribe and the United States for the benefit of

the Tribe and allottees,” as well as “to authorize, ratify, and confirm the

[Compact].” § 402(1) and (2), 124 Stat. 3097 (headings and punctuation altered).

Interior Department officials had testified against earlier bills to ratify the

Compact on the ground that the bills did not “adequately protect the rights to

which allottees are entitled under federal law.” S. Rep. No. 111-118, at 20-23

(2010).3 Interior expressed its support for a later bill if Congress would accept

amendments proposed to protect the allottees’ rights. Supplemental Excerpts of

Record (“SER”) 15-19 [Letter from Interior to Byron Dorgan, Chairman, Senate

Committee on Indian Affairs (July 8, 2010), Doc. 35, Ex. 3].

The Settlement Act, as enacted with amendments to protect allottee rights,

provides that the tribal water rights described in the Compact “are ratified,

confirmed, and declared to be valid” and shall be “held in trust by the United

States for the use and benefit of the Tribe and the allottees.” § 407(b)(1) and (c),

124 Stat. 3104. With respect to allottees in particular, the Act confirms Congress’s

3 See also SER 1-5 [Legislative Hearing on H.R. 3563, H.R. 2288, and H.R. 2316 Before the Subcomm. On Water & Power of the H. Comm. On Natural Resources, 111th Cong. (unpublished) (2009) (statement of Michael L. Connor, Comm’r, Bureau of Reclamation, Dep’t of the Interior, at 2, 5), Doc. 35, Ex. 1]; SER 6-14 [Hearing on S. 3355 The Crow Tribe Water Rights Settlement Act of 2008 Before the S. Comm. On Indian Affairs, 110th Cong. 13-20 (2008) (statement of Kris Polly, Deputy Assistant Secretary for Water & Science, Dep’t of the Interior), Doc. 35, Ex. 2].


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intent “to provide to each allottee benefits that are equivalent to or exceed the

benefits allottees possess[ed]” at the time of its enactment, “taking into

consideration”:

(1) the potential risks, cost, and time delay associated with litigation that would be resolved by the Compact and [the Settlement Act];

(2) the availability of funding under [the Settlement Act] and from other sources;

(3) the availability of water from the tribal water rights; and

(4) the applicability of . . . (25 U.S.C. 381) and [the Settlement Act] to protect the interests of allottees.

§ 407(a), 124 Stat. 3104 (formatting altered). The Act also provides that “[a]ny

entitlement to water of an allottee under Federal law shall be satisfied from the

tribal water rights,” and that “[a]llottees shall be entitled to a just and equitable

allocation of water for irrigation purposes.” § 407(d)(2) and (3), 124 Stat. 3105;

see § 407(d)(1), 124 Stat. 3104 (specifying that 25 U.S.C. 381 “shall apply”).

The Settlement Act gives the Crow Tribe “authority to allocate, distribute,

and lease the tribal water rights in accordance with the Compact.” § 407(e)(1), 124

Stat. 3105 (formatting and punctuation altered). The Tribe must establish a Tribal

Water Code, as specified in the Compact, that contains protections for allottee

rights, including “a process by which an allottee may request that the Tribe provide

water for irrigation use in accordance with [the Settlement Act].” § 407(f)(2)(C),


11

124 Stat. 3105. The Tribal Water Code must also contain “a due process system

for the consideration and determination by the Tribe of any request by an allottee

. . . for an allocation of such water for irrigation purposes on allotted land,”

including a process for “appeal and adjudication of any denied or disputed

distribution.” § 407(f)(2)(D), 124 Stat. 3105.

Congress authorized the Secretary of the Interior “to protect the rights of

allottees.” Settlement Act § 407(d)(6), 124 Stat. 3105. The Secretary must

confirm that the Tribal Water Code contains necessary protections for allottees

before it goes into effect. § 407(f)(3), 124 Stat. 3106. Further, after exhausting

remedies under tribal law with respect to requests for allocation of water, allottees

may appeal to the Secretary or initiate an action against the United States.

§ 407(f)(2)(E), 124 Stat. 3106.

The Settlement Act further authorizes hundreds of millions of dollars in

federal appropriations for projects to benefit all users of the Tribal Water Right,

including projects to rehabilitate and improve the Crow Reservation’s municipal,

rural, and industrial water system and to maintain and improve the Crow Irrigation

Project. §§ 405-406, 411, 414, 124 Stat. 3100-04, 3113-16, 3120-21. The Act

assigns responsibility for carrying out such projects to the Secretary and directs

that the final design of irrigation improvements “take into consideration the

equitable distribution of water to allottees.” § 405(c)(2), 124 Stat. 3100.


12

In exchange for the Tribal Water Right, funding for water projects, and other

benefits, the Settlement Act contains a comprehensive release of claims. The

Settlement Act specifies that the “benefits realized by the allottees” under the Act

“shall be in complete replacement of and substitution for, and full satisfaction of ,”

the allottees’ water rights claims, including “any claims of the allottees against the

United States that the allottees have or could have asserted.” § 409(a)(2), 124 Stat.

3108; see § 410(a)(3), 124 Stat. 3110 (describing claims released). It also directs

the United States to waive and release any claim that the United States, “acting as

trustee for the allottees,” had asserted or could have asserted on the allottees’

behalf. § 410(a)(2), 124 Stat. 3109. However, the Settlement Act reserves “all

claims for enforcement of the Compact, and any final decree, or [the Settlement

Act]” itself. § 410(c)(1), 124 Stat. 3111. As authorized by § 404(b), 124 Stat.

3099, the United States formally became a party to the Compact, as modified by

the Settlement Act, upon the Secretary of the Interior’s execution of the Compact

in 2012.

The Settlement Act provides for an “enforceability date,” which is the date

that the Secretary of the Interior publishes, in the Federal Register, a statement of

findings that specified conditions have been met. § 410(e), 124 Stat. 3112; see

§ 410(b), 124 Stat. 3111 (Act’s claim waivers “shall take effect on the

enforceability date”). Among other things, the Secretary must state that:


13

(i) the Montana Water Court has issued a final judgment and decree approving the Compact; or

(ii) if the Montana Water Court is found to lack jurisdiction, the district court of jurisdiction has approved the Compact as a consent decree and such approval is final . . . .

§ 410(e)(1)(A), 124 Stat. 3112; see § 403(7), 124 Stat. 3098 (defining “[t]he term

‘final’ with reference to approval of the decree”). If the Secretary does not publish

the required findings by March 31, 2016, or by an “extended date agreed to by the

Tribe and the Secretary, after reasonable notice to the State of Montana,” the

Settlement Act will be repealed. § 415, 124 Stat. 3121. The date for publishing

the findings was extended to June 30, 2016, as documented in letters from

Secretary Jewell to the Chairman of the Crow Nation and the Governor of Montana

dated March 21, 2016.

5. Montana Water Court Proceedings

In accordance with the Settlement Act, the United States, Montana, and the

Crow Tribe jointly submitted a Proposed Decree to the Montana Water Court and

moved for “‘entry of a final order issuing the decree of the reserved water right of

the Tribe held in trust by the United States as quantified in the Compact.’” See In

re Crow Water Compact, 354 P.3d at 1219 (quoting Compact Art. VII.C). The

court issued a preliminary decree containing the Compact, and published and

served notice on affected parties of the preliminary decree. Id. Of more than


14

16,000 persons and entities who received notice, approximately 100 submitted

objections to the court. Id.

Among those filing objections in the Spring of 2013 were allottees who are

members of the Crow Tribe (including the Appellants). Id. The allottees filed

their objections pro se. They alleged that they possess reserved water rights

distinct from the rights of the Crow Tribe; that the Crow Compact would impair

their rights by subordinating them to the Tribe’s rights; and that the United States

had failed, in its capacity as trustee, to adequately represent their interests. Id. at

1219-20. The allottees also argued that the Water Court was without jurisdiction

to adjudicate their rights. Id. at 1220. Hertha L. Lund subsequently entered an

appearance for the allottees. In May 2014, the Allottees moved to stay proceedings

in the Water Court pending the resolution of the instant suit that the Allottees filed

simultaneously in federal district court. Id.

On July 30, 2014, the Water Court dismissed the allottees’ objections and

denied their request for a stay. In the Matter of the Adjudication of Existing and

Reserved Rights to the Use of Water, Both Surface and Underground, of the Crow

Tribe of Indians of the State of Montana, Case No. WC-2012-06, Order Dismissing

Allottee Objections and Denying Request for Relief (entered July 30, 2014). This

Water Court Order is included in the Addendum at 64-87. The court stated that the

purpose of reviewing the Proposed Decree was not to assess its merits, but rather to


15

determine whether it was “fair and reasonable to those parties and the public

interest that were not represented in the negotiation.” Slip op. at 13 (citation

omitted). Because the United States had, in its capacity as trustee, represented the

allottees in negotiating and approving the Crow Compact, id. at 11, the court

determined that the allottees could object only on the basis of “fraud, overreaching,

or collusion” by the settling parties, id. at 13, 19. Although the allottees had

alleged that representation by the United States was “not adequate,” id. at 11, they

did not allege fraud, overreaching, or collusion, id. at 14. Accordingly, the court

held that the allottees had failed to state a valid claim for relief, id. at 15, 20, and it

denied as moot their motion for a stay, id. at 20. The allottees sought interlocutory

review in the Montana Supreme Court of the Water Court’s dismissal of their

objections.

On May 27, 2015, after dismissing all the non-Indian objections, the Water

Court issued a final judgment approving the Crow Compact. A group of the non-

Indian objectors separately appealed from that judgment to the Montana Supreme

Court.

6. Montana Supreme Court and U.S. Supreme Court Proceedings

In a unanimous opinion issued July 30, 2015, the Montana Supreme Court

affirmed the Water Court’s dismissal of the allottees’ objections, rejecting all of

the allottees’ arguments. In re Crow Water Compact, 354 P.3d at 1218-24. The


16

Montana Supreme Court also held that the Water Court had not abused its

discretion in denying the allottees’ request for a stay pending resolution of their

federal suit, which would have “work[ed] a hardship and a potential injustice on

the parties who have worked for many years to develop and implement the

Compact.” Id. at 1223.

The allottees filed a petition for a writ of certiorari in the United States

Supreme Court, presenting two questions: (1) whether “the water rights owned by

individual Crow Indian allottees—which this Court in United States v. Powers, 305

U.S. 527 (1939) recognized as distinct individual rights, separate from water rights

possessed by the Crow Tribe—[can] be awarded to the Crow Tribe in negotiations

between the United States, the tribe and the State of Montana”; and (2) whether

“the Montana Courts have jurisdiction to decide these questions of federal law

related to allottees’ rights.” Crow Allottees v. U.S. Department of Justice, No. 15-

779. The petition was denied on April 25, 2016.

Meanwhile, on December 30, 2015, the Montana Supreme Court affirmed

the Water Court’s final judgment, rejecting the arguments of the non-Indian

objectors. See In re Crow Water Compact, 364 P.3d 584 (Mont. 2015). A petition

for rehearing was largely denied on February 3, 2016 (other than the correction of

a factual error in the opinion). The non-Indian objectors filed a petition for a writ

of certiorari in the United States Supreme Court on April 27, 2016, presenting the


17

question whether “the Crow Tribe and State of Montana violated federal law by

failing to quantify the amount of water that is allocated to the Crow Tribe and

when the total volume of water allocated to the Crow Tribe is far in excess of the

amount of water the Crow Tribe could possibly use.” Abel Family Limited

Partnership v. United States, No. 15-1327. That petition is currently pending.

B. The District Court Proceedings

1. The Complaint

The Allottees filed this putative class action on May 15, 2014 in the United

States District Court for the District of Montana against the Federal Defendants

and two judges of the Montana Water Court (Chief Judge Russell McElyea and

Associate Judge Douglas Ritter). The Allottees filed a First Amended Complaint

(the “Complaint”) on September 11, 2014. ER 34-86 [Doc. 3]. The Complaint

asserted six counts:

In Count I, “Declaratory Judgment” (ER 68-69), the Allottees asked for a

declaration stating nine points of law regarding their federal water rights under

Winters. In brief, the Allottees sought a declaration stating that each Allottee had a

right under Winters to a ratable share of the federal reserved water right for the

Crow Reservation, with a priority date of September 7, 1851, for all practically

irrigable acreage and for domestic, stock, and hunting and fishing purposes,

without loss for nonuse.


18

In Count II, “Violation of the United States’ Fiduciary Duties to Named

Plaintiffs and the Indian Allottees, Including the Duty to Provide Counsel to

Named Plaintiffs and the Allottees” (ER 69-72), the Allottees complained that the

United States negotiated the Compact and Settlement Act without their

participation or consent. They also complained that the terms of the Compact and

Settlement Act deprive them of their Winters rights. See ER 71, ¶ 119 (“The

Allottees are giving up a valuable right and are receiving no consideration in

return.”).

In Count III, “Violation of the Allottees’ Right to Due Process of Law”

(ER 72-74), the Allottees similarly complained that the United States negotiated

the Compact and Settlement Act, which deprived them of their federal water rights,

“which are real property” (¶ 130), without their participation or consent, and that

the United States also failed to provide them with counsel for the Montana Water

Court proceedings, all in violation of their rights to due process under the Montana

Constitution, the United States Constitution, and the Indian Civil Rights Act.

In Count IV, “Violation of 25 U.S.C. § 175”4 (ER 74), the Allottees again

complained that the United States failed to provide them with independent legal

counsel for the ongoing Montana Water Court proceedings, and in Count V,

4 25 U.S.C. 175 provides: “In all states and Territories where there are reservations or allotted Indians the United States attorney shall represent them in all suits at law and equity.”


19

“Mandamus” (ER 75), they asked the court to compel the Federal Defendants to

provide them with independent legal counsel.

Finally, in Count VI, “Injunction” (ER 75-78), the Crow Allottees asked the

court to enjoin the defendant Montana Water Court judges from proceeding with

the Montana Water Court proceedings.

2. The Federal Defendants’ Motion for Judgment on the Pleadings

The Federal Defendants moved for Judgment on the Pleadings (Doc. 35,

filed Feb. 25, 2015), on three separate grounds. First, with respect to the Allottees’

assertion that the Compact and Settlement Act deprived them of their federal water

rights, the Federal Defendants explained that the Compact and Settlement Act

provide the Allottees with substitute resources equal to or greater than the value of

their federal water rights that will be waived on the enforceability date, and that

any claim of injury is premature prior to that date and/or prior to the determination

of a request for an allocation of water as provided in the Compact and Settlement

Act. Id. at 16-17. The Federal Defendants thus argued that the Allottees lacked

standing and that this claim was not ripe. Id. at 17-18.

Second, the Federal Defendants argued that the Allottees had not identified

any applicable waiver of sovereign immunity. The Federal Defendants explained

that Congress had waived the United States’ sovereign immunity for claims against

federal officials for the causes of action provided in the Administrative Procedure


20

Act (“APA”), 5 U.S.C. 706(1) and 706(2), but that the Allottees’ Complaint did

not state such claims. Section 706(1) only provides a claim where an “‘agency has

failed to take a discrete action that it is required to take,’” quoting Norton v. S.

Utah Wilderness Alliance, 542 U.S. 55, 64 (2004), which did not occur, and

Section 706(2) requires a “final agency action,” which the Allottees failed to

identify. Doc. 35 at 18-22.

Third, the Federal Defendants argued that the Allottees failed to state any

claim on which relief could be granted. Doc. 35 at 22-31. They argued, inter alia,

that Count I requested declaratory relief but did not plead any cause of action. Id.

at 22. They also argued that courts have repeatedly held that 25 U.S.C. 175 is

discretionary and does not provide a cause of action for failure to provide counsel,

id. at 23-24 (quoting Rincon Band of Mission Indians v. Escondido Mut. Water

Co., 459 F.2d 1082, 1084 (9th Cir. 1972)), and that the Allottees did not identify

any other statute imposing a mandatory duty to provide counsel to them, id. at 24-

31.

In response, the Allottees argued that they had standing because the

Compact and Settlement Act deprived them of their federal water rights, which the

Montana Water Court proceedings could not change, and that their claims were

ripe for the same reason. Doc. 38 at 9-16. As to sovereign immunity, the Allottees


21

argued that 25 U.S.C. 3455 and 28 U.S.C. 13536 (statutes they had not cited in their

Complaint) waived the Federal Defendants’ sovereign immunity. Id. at 16-20. In

the alternative, the Allottees argued that 5 U.S.C. 706(2) provides a waiver of

sovereign immunity, identifying the Compact and the Settlement Act as the final

agency actions. Id. at 22. As to failure to state a claim, the Allottees argued, inter

alia, that the Federal Defendants abused their discretion under 25 U.S.C. 175,

5 25 U.S.C. 345 provides:

All persons who are in whole or in part of Indian blood or descent who are entitled to an allotment of land under any law of Congress, or who claim to be so entitled to land under any allotment Act or under any grant made by Congress, or who claim to have been unlawfully denied or excluded from any allotment or any parcel of land to which they claim to be lawfully entitled by virtue of any Act of Congress, may commence and prosecute or defend any action, suit, or proceeding in relation to their right thereto in the proper district court of the United States; and said district courts are given jurisdiction to try and determine any action, suit, or proceeding arising within their respective jurisdictions involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty (and in said suit the parties thereto shall be the claimant as plaintiff and the United States as party defendant); and the judgment or decree of any such court in favor of any claimant to an allotment of land shall have the same effect, when properly certified to the Secretary of the Interior, as if such allotment had been allowed and approved by him . . . .

6 28 U.S.C. 1353 restates the jurisdictional provision of 25 U.S.C. 345: “The district courts shall have original jurisdiction of any civil action involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land.”


22

which they asserted is a factual question not subject to dismissal for failure to state

a claim. Id. at 26-27.

The Federal Defendants replied, arguing, inter alia, that 25 U.S.C. 345 only

waives the United States’ sovereign immunity for cases seeking an original

allotment, and that 28 U.S.C. 1353 is a jurisdictional provision, not a waiver of

sovereign immunity. Doc. 42 at 5-7. The Federal Defendants disagreed that there

was any final agency action within the meaning of 5 U.S.C. 706(2) because the

United States continues to hold the allottees’ water rights in trust under the

Settlement Act, and the Settlement Act’s waiver of the Allottees’ claims for federal

water rights was not yet effective. Id. at 7-8. The Federal Defendants reiterated

their arguments that the Allottees lack standing and fail to state any claim on which

relief can be granted. Id. at 1-5, 8-15.

3. The District Court’s Orders

On June 30, 2015, the district court granted judgment on the pleadings to the

Federal Defendants, concluding that the United States had not waived its sovereign

immunity. See ER 15-19 [Doc. 59]. The court agreed with the Federal Defendants

that 25 U.S.C. 345 waives the United States’ sovereign immunity only with respect

to claims seeking an allotment, not those involving the Indian’s interest in the

allotment after he has acquired it. ER 28-30 (citing United States v. Mottaz, 476

U.S. 834, 845 (1986)). It also agreed that 28 U.S.C. 1353 is not a waiver of


23

sovereign immunity. Id. (citing Jachetta v. United States, 653 F.3d 898, 906-907

(9th Cir. 2011)). Finally, the Court agreed that 5 U.S.C. 706(2) did not waive the

United States’ sovereign immunity: there was no final agency action with respect

to the Settlement Act’s waiver of the Allottees’ federal water rights claims since

the waiver was not effective until the Montana Water Court proceedings were

completed and until the Secretary published a statement of findings in the Federal

Register (which has not yet occurred). ER 30-33. The district court did not

address the Federal Defendants’ other arguments for dismissal.

Meanwhile, the Montana Water Court judges had moved to dismiss the

claim against them (Count VI) for failure to state a claim on which relief can be

granted. Doc. 22 (filed Dec. 8, 2014). Following the Montana Water Court’s

approval of the Compact on May 27, 2015, they moved to dismiss the claim

against them on the additional ground of mootness. Doc. 48 (filed June 4, 2015).

On July 27, 2015, the district court dismissed the claim against the Water Court

judges, finding the allottees’ requests for relief against them to be moot and barred

by the Rooker-Feldman doctrine, which “‘prohibits a federal district court from

exercising subject matter jurisdiction over a suit that is a de facto appeal from a

state court judgment.’” See ER 11 [Doc. 62 at 7] (quoting Kougasian v. TMSL,

Inc., 359 F.3d 1136, 1139 (9th Cir. 2004)).


24

C. The Allottees’ Voluntary Dismissal of the Appeal as to the State Water Judges

The Montana Water Court judges moved to dismiss the appeal as to them on

the ground that the Allottees’ Opening Brief did not challenge the district court’s

July 27, 2015 Order. Doc. 15 (filed Feb. 16, 2016). The Allottees did not object.

Doc. 21 (filed Mar. 7, 2016). This Court construed the Allottees’ response as a

motion to dismiss the appeal as to the claims against the judges under Fed. R. Civ.

P. 42(b).

SUMMARY OF ARGUMENT

The Allottees’ primary objective in filing this action appeared to be to

suspend the Montana Water Court proceedings, which would prevent the

enforceability of the Settlement Act, until they could obtain declarations from the

federal district court relating to their Winters rights, which declarations would then

guide the Montana Water Court proceedings upon their resumption. The Allottees

also sought to compel the Federal Defendants to provide them with government-

funded private counsel for the resumed Montana Water Court proceedings. The

Allottees’ claims in this action are fundamentally misguided.

If the Allottees have any injury, it is because of Congress’s enactment of the

Settlement Act in 2010, which supersedes any injury they might have suffered

from the negotiation of the Compact. The district court was bound by the terms of

the Settlement Act, which incorporates and ratifies the Compact, without regard to


25

the Federal Defendants’ actions or omissions during the negotiation of the

Compact and Settlement Act. The district court could not provide any relief with

respect to the Allottees’ asserted pre-Settlement Act procedural injury (failure to

provide private counsel and inadequate representation by the Federal Defendants).

The Allottees thus lack standing to assert any claim based on this pre-Settlement

Act conduct.

Once Congress enacted the Settlement Act, the Allottees’ focus needed to be

on the Settlement Act itself. The claim theoretically available to the Allottees is

that the Settlement Act effected a taking of their property entitling them to just

compensation under the Fifth Amendment. But the Allottees expressly disavowed

making any taking claim. Moreover, because Congress acted in good faith to

provide statutory water rights that equal or exceed the Allottees’ Winters rights, a

taking claim would have no merit.

The Allottees’ demand for government-funded private counsel for the

Montana Water Court proceedings also fails to state a claim on which relief can be

granted because the Federal Defendants had no mandatory duty to provide such

counsel under 25 U.S.C. 175 or any other statute. This claim is also moot because

the Allottees’ participation in the Montana Water Court proceedings has ended.


26

Finally, although this Court can affirm the district court without regard to the

United States’ sovereign immunity, the district court correctly concluded that the

Allottees failed to establish a relevant waiver of sovereign immunity.

STANDARD OF REVIEW

This Court may affirm the district court’s dismissal of this action “on any

basis supported by the record, whether or not relied upon by the district court.”

Muniz v. United Parcel Service, Inc., 738 F.3d 214, 219 (9th Cir. 2013).

This Court “review[s] de novo the district court’s assumption of

jurisdiction.” Washington Environmental Council v. Bellon, 732 F.3d 1131, 1138

(9th Cir. 2013). This Court also reviews de novo a district court’s dismissal for

lack of subject matter jurisdiction on the ground that the United States has not

waived its sovereign immunity. Harger v. Dept. of Labor, 569 F.3d 898, 903 (9th

Cir. 2009).

Whether a claim is subject to dismissal for failure to state a claim on which

relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), is a question of law to be

addressed de novo. Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015). Dismissal is

proper where there is “no cognizable legal theory.” Id. (quoting Navarro v. Block,

250 F.3d 729, 732 (9th Cir. 2001)). A motion for judgment on the pleadings under

Fed. R. Civ. P. 12(c) “faces the same test” as a motion to dismiss under Rule 12(b).

McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988).


27

“Whether the elements of the mandamus test are satisfied is a question of

law reviewed de novo.” Independence Mining Co., Inc. v. Babbitt, 105 F.3d 502,

505 (9th Cir. 1997).

ARGUMENT

The district court dismissed the Allottees’ Complaint on the ground of

sovereign immunity, rejecting the Allottees’ reliance on 25 U.S.C. 345, 28 U.S.C.

1353, and the APA’s waiver of sovereign immunity for challenges to final agency

action, 5 U.S.C. 704 and 5 U.S.C. 706(2). In their Opening Brief, the Allottees

argue that the district court erred as to all three provisions. The Allottees’

arguments are not persuasive, but even if the district court erred in dismissing their

claims based on sovereign immunity, there are other grounds for dismissing each

of the Allottees’ claims.

In order to determine whether the United States’ sovereign immunity bars

Allottees’ claims, it is necessary first to properly characterize those claims. While

the Allottees’ Complaint is not entirely clear, the Allottees appear to be claiming

three separate injuries relevant to the Federal Defendants: (1) a procedural injury

caused by the Federal Defendants during the negotiation of the Compact and

Settlement Act, specifically that the Federal Defendants failed to adequately

represent the Allottees’ interests and failed to provide them with private counsel;

(2) a substantive injury caused by Congress in its enactment of the Settlement Act,


28

specifically that the Settlement Act deprived the Allottees of their Winters rights;

and (3) a second procedural injury caused by the Federal Defendants during the

Montana Water Court proceedings, specifically that the Federal Defendants failed

to provide them with private counsel for the Montana Water Court proceedings.

When the Allottees’ claims are properly characterized, it becomes evident

that their claims are subject to dismissal without regard to sovereign immunity

because the district court could not provide the Allottees any relief for any of their

asserted injuries

I. The Allottees’ Assertion of Procedural Injury During the Negotiation of the Compact and Settlement Act Is Subject to Dismissal for Lack of Standing.

The Allottees’ assertion of procedural injury during the negotiation of the

Compact and Settlement Act is subject to dismissal for lack of subject matter

jurisdiction under Fed. R. Civ. P. 12(b)(1) because the district court had no power

to redress these pre-Settlement Act procedural injuries. Once Congress enacted the

Settlement Act, there was nothing the Federal Defendants or the district court

could do to change the Settlement Act’s terms, and the Allottees thus lacked

standing to assert claims arising from these asserted procedural injuries.

“The jurisdiction of the federal courts is limited to ‘cases’ and

‘controversies.’” Washington Environmental Council, 732 F.3d at 1138 (quoting

U.S. Const. art. III, § 2). To satisfy Article III’s “case or controversy”


29

requirement, a plaintiff must satisfy three requirements: “(1) he or she suffered an

injury in fact that is concrete, particularized, and actual or imminent; (2) the injury

is fairly traceable to the challenged conduct; and (3) the injury is likely to be

redressed by a favorable court decision.” Id. at 1139-40 (citing Lujan v. Defenders

of Wildlife, 504 U.S. 555, 560-61 (1992)).

The Allottees assert that the Federal Defendants did not adequately protect

their interests in the negotiation of the Compact and Settlement Act and failed to

provide them with government-funded private counsel so that they could protect

their own interests. While the Federal Defendants do not agree that the Allottees

are injured by the Compact and Settlement Act (as explained in Part II below), it is

readily apparent that the Allottees did not present a justiciable case or controversy

with respect to their claim of pre-Settlement Act procedural injury (whether

characterized as a breach of a fiduciary duty, violation of due process, or breach of

25 U.S.C. 175) because the district court could not afford any relief to redress such

an injury.

The Allottees filed this action more than two years after Congress enacted

the Settlement Act. In their Opening Brief, the Allottees assert (at 22) that “the

United States cannot go back and change the facts that it violated the Crow

Allottees’ due process rights, failed to provide them with legal counsel, and

negotiated away their Winters Indian reserved water rights.” The Allottees are


30

correct that the Federal Defendants cannot change the terms of the Compact or

Settlement Act. Whatever the merits of the Allottees’ grievances about what the

Federal Defendants did (or did not do) during the negotiation of the Compact and

Settlement Act, once Congress enacted the Settlement Act, the Federal Defendants

could do nothing to redress the Allottees’ asserted pre-Settlement Act procedural

injuries. The Federal Defendants could not turn back the clock to allow for

renegotiation of the terms of the Compact or Settlement Act, either through the

Federal Defendants’ own efforts or through funding private counsel for the

Allottees.

Nor was there any relief the district court could order that would redress this

alleged procedural injury. The Allottees properly did not seek to enjoin the

Federal Defendants from implementing the Settlement Act on the ground that

Congress did not give adequate attention to their interests while it was considering

the Settlement Act. A federal court may not enjoin a federal statute for this reason.

Congress is not required to pay any particular level of attention to each interest

potentially affected by proposed legislation. The Allottees generally invoked

procedural due process, but we are aware of no precedent holding that a court may

review whether duly-elected Representatives and Senators afforded adequate

consideration to all potential interests before enacting legislation.


31

Article I of the United States Constitution imposes a limited number of

procedural requirements on Congress, but the Allottees have not relied on any of

these specific requirements. See generally 2 Ronald D. Rotunda and John E.

Nowak, Treatise on Constitutional Law § 10.9, at 190-93 (5th ed. 2012). Each

House has broad latitude to “determine the rules of its proceedings.” U.S. Const.

art. I, § 5, cl. 2. While courts may be called upon to interpret these rules in limited

circumstances, the Supreme Court has explained that, as a general matter,

“Congressional practice in the transaction of ordinary legislative business is of

course none of our concern.” Christoffel v. United States, 338 U.S. 84, 88 (1949)

(interpreting a House quorum rule in reviewing a criminal conviction for perjurious

testimony to a House Committee).7 If the legislative process, for whatever reason,

produces a statute that arguably violates the United States Constitution, a challenge

to the statute focuses on the product (the statute), not the process. See generally 3

Ronald D. Rotunda and John E. Nowak, Treatise on Constitutional Law § 17.8(c),

at 130 (5th ed. 2012) (explaining that procedural due process in the context of

7 Constitutional structural principles of bicameralism and separation of powers also impose constraints on Congress’s procedures, see, e.g., INS v. Chadha, 462 U.S. 919 (1983), but the Allottees’ asserted procedural injury does not implicate such fundamental concerns.


32

legislation is the legislative process, and that “challenges to such laws must be

based on their substantive compatibility with constitutional guarantees”).8

Accordingly, the Federal Defendants’ pre-Settlement Act conduct became

irrelevant when Congress enacted the Settlement Act. At that point, the Allottees

could only attack the Settlement Act itself (a challenge we address in Part II

below). Whether the Allottees’ asserted pre-Settlement Act procedural injury is

characterized as resulting from a breach of a fiduciary duty, violation of due

process, or breach of a statutory duty, the redressability element of standing is not

satisfied as to any of these claims. The Allottees’ assertion of pre-Settlement Act

procedural injury presented no justiciable case or controversy and thus had to be

dismissed.9

8 Legislative history may be examined for the light it sheds on Congress’s intent in drafting a statute, but the focus is still on the statute itself. 9 If it were somehow possible for the district court to provide any relief for this asserted pre-Settlement Act procedural injury, the Allottees’ claims would nonetheless fail on the merits. The Federal Defendants owed no duty to the Allottees during the negotiation of the Compact and Settlement Act that they failed to fulfill. As explained below in Part III, 25 U.S.C. 175, the only statute on which the Allottees rely, does not require the government to fund private counsel for Indians. And Indians “cannot allege a common law cause of action for breach of trust that is wholly separate from any statutorily granted right.” Gros Ventre Tribe v. United States, 469 F.3d 801, 810 (9th Cir. 2006); see also United States v. Jicarilla Apache Nation, 131 S. Ct. 2313, 2325 (2011) (without “identify[ing] a specific, applicable, trust-creating statute or regulation that the Government violated . . . common-law trust principles [do not] matter.”). Further, the record


33

II. The Allottees’ Assertion of Substantive Injury from Congress’s Ratification of the Compact through the Settlement Act Is Subject to Dismissal for Failure to State a Claim.

The Allottees’ assertion of substantive injury from Congress’s ratification of

the Compact through the Settlement Act is subject to dismissal for failure to state a

claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6) because their

Complaint does not assert any cognizable claim in this regard. Rather, their only

potential claim is a claim against the United States for just compensation for an

alleged taking of their property, a claim which they have not asserted.

The relief the Allottees seek for this alleged substantive injury appears to be

a declaration of their Winters rights. See, e.g., ER 77 [Complaint ¶ 149] (“the

Named Plaintiffs and Allottees are seeking a determination of their Winters’

Doctrine reserved water rights so [that the] water can be allocated, quantified, and

determined to be appurtenant to their allotments”). But in the Settlement Act,

Congress substituted the water rights provided in that statute for the allottees’

Winters rights. The district court could not simply declare that the Allottees still

had rights that Congress intended to eliminate. The Allottees elsewhere assert in

their Complaint that the terms of the Settlement Act deprive them of their Winters

rights, which are valuable property rights. See supra, at 18. While their

reflects that Interior officials acted appropriately to protect the interests of the Allottees in the Settlement Act. See supra, at 9.


34

Complaint is not entirely clear in all respects, the Allottees explicitly state that they

are not asserting the claim that could potentially redress this alleged substantive

injury—a claim for just compensation under the Fifth Amendment for a taking of

their property. See ER 77 [Complaint ¶ 149] (“At this time, the Named Plaintiffs

and Allottees are not seeking monetary damages for the taking of their property

and the violation of their constitutional and other federal rights.”). Moreover, as

explained below, we believe that any taking claim would fail.

The Constitution grants Congress plenary authority over Indian affairs. U.S.

Const. art. I, § 8, cl. 3. That plenary authority extends to “the Indian trust

relationship,” including the power to protect, control, and manage Indian trust

assets. United States v. Jicarilla Apache Nation, 131 S. Ct. at 2323-24. Where an

allotment is held in trust, both the land and associated water rights are subject to

Congress’s plenary authority. Congress’s “[p]ower to control and manage the

property and affairs of Indians in good faith for their betterment and welfare may

be exerted in many ways.” Shoshone Tribe of Indians v. United States, 299 U.S.

476, 497 (1937). However, where Congress goes so far as “‘to give tribal lands to

others, or to appropriate them to its own purposes,’” Congress assumes an

obligation to render just compensation. Id. (quoting United States v. Creek Nation,

295 U.S. 103, 110 (1935)). But Congress may “change the form of [Indian] trust

assets” without subjecting the United States to liability for a taking as long as it


35

acts, in good faith, to “provide [trust beneficiaries] with property of equivalent

value.” United States v. Sioux Nation of Indians, 448 U.S. 371, 416 (1980)

(citation omitted). “If [a trustee] does that, he cannot be faulted if hindsight should

demonstrate a lack of precise equivalence.” Id.

While this Court does not have to decide this question, there should be no

doubt that Congress here acted in good faith and intended the Settlement Act to

effect an equivalent exchange of trust assets. The Settlement Act guarantees

allottees a portion of the Tribal Water Right specified in the Compact, as well as

other benefits, in exchange for a waiver of their claims for Winters rights. The

Settlement Act is a proper exercise of Congress’s power to manage trust property

for the benefit of the Crow Tribe, its members, and allottees, without incurring any

liability for taking their property.

In the Settlement Act, Congress exercised its authority, as trustee for the

Tribe and for allottees within the Crow Reservation, to “achieve a fair, equitable,

and final settlement of claims to water rights in the State of Montana.” Settlement

Act § 402(1), 124 Stat. 3097. The Act recognizes that the beneficial use of water

by allottees is subject to a number of factors, including “the potential risks, cost,

and time delay associated with litigation,” “the availability of funding,” and “the

availability of water from the tribal water rights.” Id. § 407(a)(1)-(3), 124 Stat.

3104. Congress stated its intention to provide allottees with “benefits that are


36

equivalent to or exceed” their pre-settlement federal rights. Id. § 407(a), 124 Stat.

3104. To achieve that goal, the Settlement Act endorses the Tribal Water Right

specified in the Compact (which encompasses “the right[s] of the Crow Tribe,

including any Tribal member,” Compact Art. II.30), and affirms that “[a]ny

entitlement to water of an allottee under Federal law shall be satisfied from the

tribal water rights,” and that “[a]llottees shall be entitled to a just and equitable

allocation of water for irrigation purposes.” Settlement Act § 407(d)(2) and (3),

124 Stat. 3105. The Act also specifies the applicability of 25 U.S.C. 381, which

authorizes the Secretary of the Interior to prescribe rules and regulations as

“necessary to secure a just and equitable distribution [of water] among the Indians

residing upon any . . . reservation.” See Settlement Act § 407(d)(1), 124 Stat.

3104. The Settlement Act thus entitles allottees to a “just and equitable share” of

water, to be satisfied from the Tribal Water Right specified in the Compact.

The Act further specifies that “the benefits realized by the allottees” under

the Compact are “in complete replacement of and substitution for, and full

satisfaction of” any claims that the allottees otherwise might have, including “any

claims of the allottees against the United States.” Id. §§ 409(a)(2)(A) and (B), 124

Stat. 3108; see id. § 410(a)(3)(D), 124 Stat. 3110 (waiver of claims “relating to the

negotiation, execution, or the adoption of the Compact” or Settlement Act). The

Settlement Act was thus an exercise of Congress’s authority to settle claims to


37

water rights that the United States holds in trust for the benefit of the Crow Tribe,

its members, and allottees, in exchange for the quantified Tribal Water Right,

funds for infrastructure improvements, and other valuable benefits.10

The Allottees rely (Br. 8, 12, 13) on United States v. Powers, 305 U.S. 527

(1939), in which the Supreme Court recognized that when “waters within the

[Crow] Reservation were reserved for the equal benefit of tribal members,” and

“allotments of land” were made within the Reservation, “the right to use some

portion of tribal waters” “passed to the owners” of the allotments (and then on to

the non-Indian purchaser plaintiffs in that case) absent “Congressional intent” to

the contrary. Id. at 532 (citing Winters). Powers explained that the right of

allottees on the Crow Reservation to “participat[e] in the use of waters” was

subject to the Secretary’s authority under the General Allotment Act “to prescribe

rules and regulations deemed necessary to secure just and equal distribution of

waters.” 305 U.S. at 533. The “just and equal distribution” standard mentioned in

Powers is the same standard that has long applied to the water rights of Indians

residing on a reservation. 25 U.S.C. 381 (“just and equal distribution”). At the

urging of the Federal Defendants (see supra, at 9), Congress expressly addressed

10 The global resolution of water-rights claims in the Settlement Act is similar to the approach that Congress has taken in other recent Indian water-rights settlements. See, e.g., Snake River Water Rights Act, Pub. L. No. 108-447, tit. X, 118 Stat. 3431-32, 3434-35 (2004); Arizona Water Settlements Act, Pub. L. No. 108-451, § 204, 118 Stat. 3502-03 (2004).


38

allottees’ water rights in the Settlement Act. As explained above, the Settlement

Act affirms that “[a]llottees shall be entitled to a just and equitable allocation of

water for irrigation purposes,” Settlement Act § 407(d)(3), 124 Stat. 3105, that 25

U.S.C. 381 “shall apply to the tribal water rights,” id. § 407(d)(1), 124 Stat. 3104,

and that Congress intended for the Act “to provide to each allottee benefits that are

equivalent to or exceed the benefits allottees possess[ed]” at the time of its

enactment, id. § 407(a), 124 Stat. 3104. There is therefore no basis for the

Allottees to argue that the water rights secured under the Settlement Act are

materially different from the implied rights to a share of the water right reserved to

the Tribe under Winters that they possessed before the Act.

The Allottees, however, apparently believe that Congress was mistaken and

that the “just and equitable” share of water to which the Settlement Act entitles

allottees is not in fact equivalent to the rights that allottees possessed under federal

law before the Act’s passage. If the Allottees choose, they can assert that

argument in the form of a taking claim at the appropriate time. Under the Tucker

Act, 28 U.S.C. 1491(a)(1), the Court of Federal Claims has exclusive jurisdiction

over such claims against the United States in excess of $10,000. Under the Little

Tucker Act, 28 U.S.C. 1346(a)(2), district courts have concurrent jurisdiction over

such claims not exceeding $10,000. The remedy for an alleged taking of property

by the federal Government presumptively lies under the Tucker Act (or Little


39

Tucker Act). See Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1019 (1984)

(holding that the district court erred in enjoining provisions of the Federal

Insecticide, Fungicide, and Rodenticide Act that effected a taking of property

because the Tucker Act provided an adequate remedy). But the Allottees’

Complaint in federal district court could not include a claim under the Tucker Act

and did not include a claim under the Little Tucker Act.

Further, the Allottees did not have a ripe taking claim when they filed their

Complaint. A facial taking claim is ordinarily considered ripe upon the enactment

of the statute or regulation asserted to have effected a taking. See, e.g.,

Guggenheim v. City of Goleta, 638 F.3d 1111 (9th Cir. 2010) (en banc). In this

case, however, although the Settlement Act was enacted in 2010, the waiver of the

Allottees’ claims for Winters reserved water rights (which is the alleged

deprivation of their property) will not be effective until the enforceability date

(which will occur on or before June 30, 2016, unless the Secretary and the Tribe

agree to a further extension of the enforceability date). Any taking claim would

thus not accrue until the enforceability date, at the earliest. And even if the

Allottees could theoretically make a taking claim as of the enforceability date or

thereafter, such a claim would fail for the reasons explained above.


40

III. The Allottees’ Claim for Procedural Injury during the Montana Water Court Proceedings Is Subject to Dismissal Because They Failed to State a Claim and Any Claim Is Now Moot.

The Allottees’ claim of procedural injury during the Montana Water Court

proceedings is subject to dismissal for failure to state a claim on which relief can

be granted under Fed. R. Civ. P. 12(b)(6) because neither 25 U.S.C. 175 nor any

other statute required the Federal Defendants to provide private counsel to the

Allottees during that proceeding and the requirements for mandamus are not met.

The claim is also subject to dismissal for mootness under Fed. R. Civ. P. 12(b)(1)

because the Allottees’ participation in the Montana Water Court proceedings has

ended.

In Count IV of their Complaint (Violation of 25 U.S.C. § 175), the Allottees

assert (in ¶ 135) that “[t]he United States is required by 25 U.S.C. § 175 to provide

independent legal counsel, not subject to conflicts of interest, to represent the

Allottees and protect and assert their water rights in both federal and state law

water rights adjudications and in water rights settlement negotiations.” ER 74. In

this regard, they specifically reference (in ¶ 136) the “ongoing” Montana Water

Court proceeding. ER 74. In Count V (“Mandamus”), the Allottees again


41

reference Section 175 and ask the district court (in ¶ 143) to “compel the United

States to provide the Allottees with independent legal counsel.”11 ER 75.

Section 175 provides: “In all states and Territories where there are

reservations or allotted Indians the United States attorney shall represent them in

all suits at law and equity” (emphasis added). But in Exhibit 1 to their Complaint,

a November 16, 2009 letter from the Crow Allottees Association to the Assistant

Secretary-Indian Affairs (ER 85), the Allottees make clear that the “independent

legal counsel” they are seeking is private counsel of their choosing to be funded by

Interior. Section 175 did not require the United States to provide government-

funded private counsel to the Allottees for the Montana Water Court proceedings.

First, by its express terms, Section 175 addresses representation by the U.S.

Attorney, not private counsel funded by the government. The single sentence that

11 In Count III of their Complaint (Violation of the Allottees’ Right to Due Process of Law), the Allottees reference (in ¶¶ 125, 126, 132) the Montana Constitution, the United States Constitution, and the Indian Civil Rights Act as providing protection for their property rights. ER 72-74. Among other allegations, the Allottees state (in ¶ 129) that they “have not been represented by legal counsel during the Montana Water Court proceedings related to the Crow Compact.” ER 73. But Count III does not specifically reference any constitutional provision or statute assertedly entitling them to government-provided legal counsel for the Montana Water Court proceedings. We note that the Indian Civil Rights Act was enacted as Titles II through VII of the Civil Rights Act of 1968, Pub. L. No. 90-284, 82 Stat. 77. It requires tribal governments to afford certain protections to their members, but does not impose such obligations on federal officials and provides no cause of action against federal officials. See generally Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (describing the Act’s provisions).


42

is now codified as Section 175 was originally enacted as the last sentence of a

paragraph in the Act of March 3, 1893, ch. 209, § 1, 27 Stat. 631, providing for

Interior to pay the fees of private counsel retained by Indians in certain actions

relating to public lands during the fiscal year ending June 30, 1894. See Rincon

Band of Mission Indians v. Escondido Mut. Water Co., 459 F.2d 1082, 1084 (9th

Cir. 1972). The sentence which is now Section 175 “was added as an economy

measure.” Id. The authorization for Interior to pay the fees of private counsel for

the specified actions expired, but the authorization for the U.S. Attorney to

represent Indians survived through codification as Section 175. Through the years,

Congress has provided in various other statutes for Interior to pay the fees of

private counsel to represent Indians in specific actions. See, e.g., id. at 1085

(quoting United States v. Gila River Pima-Maricopa Indian Community, 391 F.2d

53, 56-57 (9th Cir. 1968)); see also Pub. L. No. 93-351, § 8(e), 88 Stat 1712, 1716

(1974) (“The Secretary of the Interior is authorized to pay any or all appropriate

legal fees, court costs, and other related expenses arising out of, or in connection

with, the commencing of, or defending against, any action brought by the Navajo

or Hopi Tribe under this section.”). But no such statute is applicable here.

Second, even as to representation by the U.S. Attorney, Section 175 is

discretionary, not mandatory. Rincon Band, 459 F.2d at 1085 (citing Gila River

Pima-Maricopa Indian Community, 391 F.2d at 56; Siniscal v. United States, 208


43

F.2d 406, 410 (9th Cir. 1953)). One reason for the U.S. Attorney to exercise

his/her discretion to decline to represent Indians is if he/she would have a conflict

of interest in representing them. Id. at 1084-85. But that is not the only

permissible basis for a U.S. Attorney to decline to represent Indians. The D.C.

Circuit has held that Section 175 provides no basis for Indian tribes to compel the

Attorney General to file claims on their behalf because Section 175 “contains no

‘meaningful standard’ limiting her prosecutorial discretion.” Shoshone-Bannock

Tribes v. Reno, 56 F.3d 1476, 1481 (D.C. Cir. 1995). Section “175 is one of those

statutes ‘drawn in such broad terms that in a given case there is no law to apply.’”

Id. at 1482 (quoting Heckler v. Chaney, 470 U.S. 821, 830 (1985)).

Third, in May 2014, Ms. Lund undertook the representation of the Allottees

in both the Montana Water Court proceedings and in this action. Under the

“American Rule,” the presumption is that each party bears its own attorney’s fees.

See, e.g., Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 270-71

(1975); 10 Moore’s Federal Practice 3d § 54.170, at 54-265 (2015). Congress has

enacted various fee-shifting statutes that provide for the losing party to pay the

prevailing party’s attorney’s fees in specified circumstances, including statutes that

apply to the United States. See, e.g., Equal Access to Justice Act, 28 U.S.C. 2412.

But in Pyramid Lake Paiute Tribe of Indians v. Morton, 499 F.2d 1095, 1096-97

(D.C. Cir. 1974), the D.C. Circuit held that 25 U.S.C. 175 was not such a fee-


44

shifting statute and provided no authority for the United States to pay the

prevailing tribe’s attorneys’ fees. In any event, the Allottees did not prevail in the

Montana Water Court proceedings.

Moreover, the Allottees styled Count V as a request for mandamus relief.

Under 28 U.S.C. 1361, a district court has “original jurisdiction of any action in the

nature of mandamus to compel an officer or employee of the United States or any

agency thereof to perform a duty owed to the plaintiff.” This Court has explained

that “[m]andamus may be granted when (1) the plaintiff's claim is clear and

certain; (2) the duty is ministerial and so plainly prescribed as to be free from

doubt; and (3) no other adequate remedy is available.” Oregon Natural Resources

Council v. Harrell, 52 F.3d 1499, 1508 (9th Cir. 1995) (citations and internal

quotations omitted). This standard plainly is not satisfied here as a matter of law.12

Finally, the Allottees’ participation in the Montana Water Court proceedings

has ended, and thus the Allottees’ claim for mandamus relief is moot. The

Allottees’ objections in the Montana Water Court were dismissed, the dismissal

12 Even where these three elements are satisfied, “[t]he extraordinary remedy of mandamus lies within the discretion of the trial court.” Id. The APA similarly authorizes a court to compel “agency action unlawfully withheld or unreasonably delayed.” 5 U.S.C. 706(1). This Court has observed that, “[a]lthough the exact interplay between these two statutory schemes has not been thoroughly examined by the courts,” the two claims are “‘in essence’” the same. Independence Mining Co., 105 F.3d at 507 (quoting Japan Whaling Ass’n v. American Cetacean Soc’y, 478 U.S. 221, 230 n.4 (1986)).


45

was affirmed by the Montana Supreme Court, and the United States Supreme

Court denied the Allottees’ petition for certiorari.13 A claim becomes moot “when

changes in the circumstances that prevailed at the beginning of the litigation have

forestalled any occasion for meaningful relief.” Gator.com Corp. v. L.L. Bean,

Inc., 398 F.3d 1125, 1129 (9th Cir. 2006) (internal quotation marks omitted); see

also Ruvalcaba v. City of Los Angeles, 167 F.3d 514, 521 (9th Cir. 1999) (“If there

is no longer a possibility that an appellant can obtain relief for his claim, that claim

is moot and must be dismissed for lack of jurisdiction.”). The proceedings in

which the Allottees claim they were entitled to counsel have concluded, and there

would thus no longer be any remedy available to them even if their claims had

merit.

IV. The District Court Correctly Concluded that the Allottees Have Not Established a Relevant Waiver of Sovereign Immunity.

The district court dismissed the Allottees’ Complaint on the sole ground of

sovereign immunity, explaining that neither 25 U.S.C. 345, 28 U.S.C. 1353, nor

the APA (5 U.S.C. 704 and 706(2)), waived the United States’ sovereign

13 As explained supra, at 16-17, a petition for a writ of certiorari filed by certain non-Indian objectors is currently pending in the U.S. Supreme Court. The Supreme Court may decide that petition by the end of the current term. Even if the Supreme Court were to grant the petition, it is not apparent that the Allottees would have any role to play in any future Montana Water Court proceedings. We will advise the Court of the Supreme Court’s disposition of the petition for certiorari by letter pursuant to Fed. R. App. P. 28(j).


46

immunity. The Allottees focused their Brief on arguing that the district court was

wrong as to all of these statutes. As explained above, however, the Allottees’

claims were all subject to dismissal without regard to the bar of sovereign

immunity. While the Court does not need to address whether there is an applicable

waiver of sovereign immunity, we briefly answer the Allottees’ arguments in their

Opening Brief.

A party may assert a cause of action against the United States only to the

extent the United States has waived its sovereign immunity, and the burden is on

the plaintiff to establish an applicable waiver of federal sovereign immunity.

Cunningham v. United States, 786 F.2d 1445, 1446 (9th Cir. 1986). “‘A waiver of

the Federal Government’s sovereign immunity must be unequivocally expressed in

statutory text” and its scope “‘will be strictly construed . . . in favor of the

sovereign.’” Harger, 569 F.3d at 903 (quoting Lane v. Pena, 518 U.S. 187, 192

(1996)).

The district court correctly concluded (ER 27-30) that the Act of August 15,

1894, c. 290, § 1, 28 Stat. 305, codified as amended at 25 U.S.C. 345, did not

waive the United States’ sovereign immunity for the Allottees’ claims. The text of

Section 345, addressing certain claims regarding allotments, is set out supra, at 21

n.5.


47

This Court first interpreted Section 345 in United States v. Eastman, 118

F.2d 421, 425 (9th Cir. 1941), a suit challenging Interior’s management of timber

on allotments, and held that Section 345 did not waive the United States’ sovereign

immunity for that suit. “It is plain from the whole statute that Congress intended

merely to authorize suits to compel the making of allotments in the first instance,”

not “suits of Indians dissatisfied with the administration of their individual

holdings.” Id. See also United States v. Preston, 352 F.2d 352, 358 (9th Cir.

1965) (“We think it is equally plain that the Indian allottee is not authorized by

§ 345 to sue the United States for the purpose of claiming or establishing any

assignment or distribution of water rights, rights which he automatically acquired

as a result of the creation of the reservation as demonstrated in the Winters case.”).

This Court has in some other cases given Section 345 “a more liberal

construction.” Pence v. Kleppe, 529 F.2d 135, 139 (9th Cir. 1976) (citing United

States v. Pierce, 235 F.2d 885 (9th Cir. 1956); Arenas v. Preston, 181 F.2d 62 (9th

Cir. 1950); and Gerard v. United States, 167 F.2d 951 (9th Cir. 1948)); see also

Scholder v. United States, 428 F.2d 1123, 1125-27 (9th Cir. 1970). But the

Supreme Court has endorsed this Court’s original interpretation and rejected the

broader interpretation.

In Affiliated Ute Citizens v. United States, 406 U.S. 128, 142 (1972), the

Supreme Court held that “Section 345 authorizes, and provides governmental


48

consent for, only actions for allotment,” citing, inter alia, this Court’s decision in

United States v. Preston. The Supreme Court then confirmed this interpretation of

Section 345 in United States v. Mottaz, 476 U.S. 834, 845–46 (1986), where it

expressly rejected the broader view of Pierce and Scholder:

Section 345 grants federal district courts jurisdiction over two types of cases: (i) proceedings “involving the right of any person, in whole or in part of Indian blood or descent, to any allotment of land under any law or treaty,” and (ii) proceedings “in relation to” the claimed right of a person of Indian descent to land that was once allotted. Section 345 thus contemplates two types of suits involving allotments: suits seeking the issuance of an allotment . . . and suits involving “‘the interests and rights of the Indian in his allotment or patent after he has acquired it,’” Scholder v. United States, 428 F.2d 1123, 1129 (CA9), cert. denied, 400 U.S. 942 (1970), quoting United States v. Pierce, 235 F.2d 885, 889 (CA9 1956).

The structure of § 345 strongly suggests, however, that § 345 itself waives the Government’s immunity only with respect to the former class of cases: those seeking an original allotment. . . . Accordingly, in Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972), this Court held that, to the extent that § 345 involves a waiver of federal immunity, as opposed to a grant of subject-matter jurisdiction to the district courts, that section “authorizes, and provides governmental consent for, only actions for allotments.” 406 U.S., at 142 (emphasis added).

This Court has found no ambiguity in the Supreme Court’s interpretation of

Section 345. See Pinkham v. Lewiston Orchards Irrigation Dist., 862 F.2d 184,

187 (9th Cir. 1988) (“In Mottaz, the Supreme Court made clear that section 345

waives the government’s immunity only with regard to . . . cases seeking an

original allotment, and not those involving the interests and rights in an allotment


49

after it has been acquired.”); see also Jachetta v. United States, 653 F.3d 898, 906-

07 (9th Cir. 2011) (summarizing the Supreme Court’s Mottaz analysis). The

Allottees’ effort (Br. at 14-19) to distinguish these cases on their facts is

unavailing.

The Allottees incorrectly cite (Br. 19) 28 U.S.C. 1353 as a separate waiver

of sovereign immunity. This Court has “held that ‘28 U.S.C. § 1353 is a

recodification of the jurisdictional portion of § 345.’” Jachetta, 653 F.3d at 906

(quoting Scholder, 428 F.2d at 1126 n.2 (9th Cir. 1970)). As the district court held

(ER 30), it is not a separate waiver of sovereign immunity.

Finally, with regard to the APA’s waiver of sovereign immunity, for the

same reasons the Allottees failed to establish the requirements for mandamus relief

with respect to their request for government-funded private counsel, they likewise

failed to establish the requirements for the APA’s waiver of sovereign immunity

with respect to claims under 5 U.S.C. 706(1) to “compel agency action unlawfully

withheld.”

The Allottees, however, have focused on the APA’s waiver of sovereign

immunity applicable to challenges to “final agency action,” 5 U.S.C. 704 and

706(2), apparently with respect to their complaint of substantive injury

(deprivation of their Winters rights). The district court correctly explained (ER 30-

33) that the waiver of the Allottees’ claims for Winters rights would not be final


50

until the enforceability date. Further, the Allottees’ identification of the Compact

and the Settlement Act as “final agency actions” (Br. 19-22; Doc. 38 at 22) is

incorrect for other reasons. Interior participated in the negotiations that led to the

Compact, but, by its terms, the Compact had no legal effect unless Congress

ratified it through the Settlement Act. Compact Art. VII.A.1. The Settlement Act

incorporated, and expanded upon, the Compact. See Compact Arts. III.A.1.b.(1),

VI.C; Settlement Act §§ 405-406, 408, 411, 414, 124 Stat. 3100-04, 3106-08,

3113-16, 3120-21. Congress’s enactment of the Settlement Act thus superseded

any action by Interior with respect to the Compact. And contrary to the Allottees’

characterization, the enactment of the Settlement Act was not “agency” action; it

was legislative action. As explained in Part II above, the Tucker Act, not the APA,

provides the relevant waiver of sovereign immunity for a claim that the Settlement

Act deprived the Allottees of their Winters rights (although we believe that a taking

claim would fail on the merits). Finally, as explained supra, at 11, the Settlement

Act provides that the Department of the Interior has a role in water rights

administration. These future agency actions may potentially be subject to judicial

review under the APA at the appropriate time, but they obviously afford no basis

for judicial review at the present time.


51

CONCLUSION

The district court’s judgment dismissing this action should be affirmed.

Respectfully submitted,

JOHN C. CRUDEN Assistant Attorney General

s/ Mary Gabrielle Sprague JOHN L. SMELTZER MARY GABRIELLE SPRAGUE

Appellate Section Environment and Natural Resources Division U.S. Department of Justice P.O. Box 7415 Washington, D.C. 20044 (202) 514-2753 [email protected]

JUNE 8, 2016 90-2-4-14220


STATEMENT OF RELATED CASES

Federal Appellees are unaware of any related cases within the meaning of

Ninth Circuit Rule 28-2.6 that are pending in this Court.

s/ Mary Gabrielle Sprague

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitation, typeface requirements

and type style requirements of Federal Rule of Appellate Procedure 32(a). This

brief contains 12,424 words in 14-point Times New Roman font (excluding the

parts of the brief exempted by Rule 32(a)(7)).



Addendum


Index to Addendum

Description Page Water Rights Compact Entered into by the State of Montana and the Crow Tribe on June 22, 1999, and executed by the United States in 2012

1

Crow Tribe Water Rights Settlement Act of 2010, 124 Stat. 3097-3122 (December 8, 2010)

38

Order of the Montana Water Court Dismissing Allottee Objections and Denying Request for Stay, Case No. WC-2012-06 (July 30, 2014)

64


85-20-901. Crow Tribe-Montana compact ratified, MT ST 85-20-901

© 2016 Thomson Reuters. No claim to original U.S. Government Works. 1

The compact entered into by the State of Montana and the Crow Tribe and filed with the Secretary of State of the State ofMontana under the provisions of 85-2-702 on June 22, 1999, is ratified. The compact is as follows:

WATER RIGHTS COMPACT ENTERED INTO BY THE STATE OF MONTANA,

THE CROW TRIBE, AND THE UNITED STATES OF AMERICA

This Compact is entered into by and among the State of Montana, the Crow Tribe, and the United States of America for thepurpose of settling any and all existing water rights claims of or on behalf of the Crow Tribe of Indians in the State of Montana.

ARTICLE I--RECITALS

WHEREAS, in 1975, the United States, on behalf of the Crow Tribe, brought suit in the United States District Court for theDistrict of Montana to obtain a final determination of the Tribe's water rights, see, U.S. v. Big Horn Low Line Canal Company,et al., No. CIV-75-34-BLG (filed April 17, 1975); and

WHEREAS, Congress consented to state court jurisdiction over the quantification of claims to water rights held by the UnitedStates of America in trust for the Tribe; see, “the McCarran Amendment”, 43 U.S.C. 666(a)(1)(1952); Colorado River WaterConservation Dist. v. United States, 424 U.S. 800 (1976); Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983); and

WHEREAS, the State of Montana initiated a general stream adjudication pursuant to the provisions of Chapter 697, Laws ofMontana 1979, which includes Crow tribal water rights; and

WHEREAS, the United States has filed claims on behalf of the Crow Tribe in the general stream adjudication initiated by theState of Montana; and

WHEREAS, the lands and waters constituting the Crow Indian Reservation and Tribal Interests in the Ceded Strip were part ofthe area recognized as the territory of the Crow Indians under the Treaty of Fort Laramie of September 17, 1851 and also werepart of the area set apart for the Crow Tribe under the Treaty of Fort Laramie of May 7, 1868; and

WHEREAS, for the purposes of this Compact, the priority date for the Tribal Water recognized is May 7, 1868, which is thesenior water right on the water sources covered by this Compact; and

WHEREAS, the Montana Reserved Water Rights Compact Commission, under 85-2-702(1), MCA, is authorized to negotiatesettlement of water rights claims filed by Indian tribes or on their behalf by the United States claiming reserved waters withinthe State of Montana; and

ADD. 1




WHEREAS, the federal district court litigation was stayed in 1983 pending the outcome of Montana State court wateradjudication proceedings, see, Northern Cheyenne Tribe v. Adsit, 721 F.2d 1187, 1189 (9th Cir. 1983); and

WHEREAS, the adjudication of Crow tribal water rights in the state court proceedings has been suspended while negotiationsare proceeding to conclude a compact resolving all water rights claims of the Crow Tribe within the State of Montana; and

WHEREAS, the Crow Tribal Council, or its duly designated representatives, have authority to negotiate this Compact pursuantto Resolution No. 99-33; and

WHEREAS, the United States Attorney General, or a duly designated official of the United States Department of Justice, hasauthority to execute this Compact on behalf of the United States pursuant to the authority to settle litigation contained in 28U.S.C. Sections 516-17 (1993); and

WHEREAS, the Secretary of the Interior, or a duly designated official of the United States Department of the Interior, hasauthority to execute this Compact on behalf of the United States Department of the Interior pursuant to 43 U.S.C. Section 1457(1986, Supp. 1992), inter alia; and

WHEREAS, the Crow Tribe, the State of Montana, and the United States agree that the Tribal Water Right described in thisCompact shall be in satisfaction of all the Tribe's water rights claims within the State of Montana; and

WHEREAS, it is in the best interest of all Parties that the water rights claims of the Crow Tribe be settled through agreementbetween and among the Tribe, the State of Montana, and the United States; and

WHEREAS, in settling the water rights claims of the Crow Tribe the Parties do not intend to alter or amend or to adopt orpreclude any interpretation of the Yellowstone River Compact (Act of October 10, 1951, ch. 629, 65 Stat.663 (1951));

NOW THEREFORE, the Parties agree to enter into this Compact for the purpose of settling the water rights claims of the CrowTribe within the State of Montana.

ARTICLE II--DEFINITIONS

The following definitions shall apply for purposes of this Compact:

1. “Acre-foot” or “AF” means the amount of water necessary to cover one acre to a depth of one foot and is equivalent to43,560 cubic feet.

2. “Acre Feet Per Year” or “AFY” means the quantity of water to which the Tribe has a right each year measured in acrefeet over a period of a year.

3. “Adverse Affect” or “Adversely Affect” means interference with or to interfere with the reasonable exercise of a waterright.

4. “Bighorn River Basin” means Water Court Basin 43P, the mainstem of the Bighorn River and its tributaries (exclusiveof the Little Bighorn River and its tributaries) within Montana to its confluence with the Yellowstone River, as depicted onthe map attached as Appendix 2.

ADD. 2




5. “Bighorn Lake” means the body of water impounded on the Bighorn River by Yellowtail Dam, Yellowtail Unit, LowerBighorn Division, Pick-Sloan Missouri Program, Montana.

6. “Board” means the Crow--Montana Compact Board established by Section F, of Article IV of this Compact.

7. “Ceded Strip” means the area covered by Article III of the Act of April 27, 1904 (33 Stat.352), as depicted on the mapattached as Appendix 5.

8. “Change in Use” as applied to the Tribal Water Right, means a change in the point of diversion, the place of use, thepurpose of use, or the place or the means of storage.

9. “Clarks Fork Yellowstone River Basin” means Water Court Basin 43D, the mainstem of the Clarks Fork YellowstoneRiver and its tributaries from the Montana-Wyoming border to its confluence with the Yellowstone River, as depicted onthe map attached as Appendix 2.

10. “Crow Irrigation Project” means the irrigation project authorized by the Act of March 3, 1891 (26 Stat. 989, 1040)managed by the United States, Department of the Interior, Bureau of Indian Affairs, as of the date this Compact has beenratified by the Montana legislature, consisting of the following project units: Agency, Big Horn, Forty Mile, Lodge Grass 1,Lodge Grass 2, Pryor, Reno, Soap Creek, and Upper Little Horn; and including land held in trust by the United States forthe Tribe or a Tribal member within the Bozeman Trail and Two Leggins districts which are managed by private irrigationassociations as of the date this Compact has been ratified by the Montana legislature.

11. “DNRC” means the Montana Department of Natural Resources and Conservation, or any successor agency.

12. “Effective Date” means the date on which the Compact is ratified by the Crow Tribal Council, by the Montana legislature,and by the Congress of the United States, whichever date is latest.

13. “Groundwater” means any water that is beneath the ground surface.

14. “Little Bighorn River Basin” means Water Court Basin 43O, the mainstem of the Little Bighorn River and its tributariesfrom the Montana-Wyoming border to its confluence with the Bighorn River, as depicted on the map attached as Appendix 2.

15. “Natural Flow” means water that would exist in the Bighorn River and its tributaries in the absence of human intervention.

16. “Parties” means the Tribe, the State, and the United States.

17. “Person” means an individual or any other entity, public or private, including the State, the Tribe, and the United Statesand all officers, agents, and departments of each of the above.

ADD. 3




18. “Pryor Creek Basin” means Water Court Basin 43E, the mainstem of Pryor Creek and its tributaries from its headwatersto its confluence with the Yellowstone River, as depicted on the map attached as Appendix 2.

19. “Recognized Under State Law” when referring to a water right, means a water right arising under Montana law or a waterright held by a nonmember of the Tribe on land not held in trust by the United States for the Tribe or a Tribal member.

20. “Release” means to discharge water from storage, or the discharge of water from storage.

21. “Reservation” means the Crow Indian Reservation consisting of the area as presently set apart for the Crow Tribe pursuantto the following Treaty and laws: Article 2 of the Fort Laramie Treaty of May 7, 1868 (15 Stat. 649); the Act of April 11,1882 (22 Stat. 42); the Act of March 3, 1891 (26 Stat. 989); the Act of April 27, 1904 (33 Stat.352); the Act of August 31,1937 (50 Stat. 884); and, the Act of November 2, 1994 (108 Stat. 4636), as depicted on the map attached as Appendix 4.

22. “Rosebud Creek Basin” means Water Court Basin 42A, the mainstem of Rosebud Creek and its tributaries from itsheadwaters to its confluence with the Yellowstone River, as depicted on the map attached as Appendix 2.

23. “Secretary” means the Secretary of the United States Department of the Interior, or his or her duly authorizedrepresentative.

24. “Shoshone River Basin” means Water Court Basin 43N, the mainstem of the Shoshone River and its tributaries withinMontana, as depicted on the map attached as Appendix 2.

25. “State” means the State of Montana and all officers, agents, departments, and political subdivisions thereof.

26. “Tongue River Basin” means Water Court Basin 42B, the mainstem of the Tongue River and its tributaries from theMontana-Wyoming border to above and including Hanging Woman Creek, as depicted on the map attached as Appendix 2.

27. “Transfer” as applied to the Tribal Water Right, means to authorize a person to use all or any part of the Tribal WaterRight through a service contract, lease, or other similar agreement of limited duration.

28. “Tribal Water Resources Department” or “TWRD” means the Crow Tribal Water Resources Department, or any successoragency.

29. “Tribal Interests in the Ceded Strip” means all present and acquired interests in real property, including mineral interests,held in trust by the United States for the Tribe or Tribal members within the Ceded Strip, consisting of: Crow Indian allotmentsheld in trust by the United States for the Tribe or Tribal members; interests restored to the Tribe pursuant to the Act of May19, 1958 (72 Stat. 121), as modified by the Act of August 14, 1958 (72 Stat. 575); and other interests held in trust by theUnited States for the Tribe or Tribal members.

ADD. 4




30. “Tribal Water Right” means the right of the Crow Tribe, including any Tribal member, to divert, use, or store water asdescribed in Article III of this Compact.

31. “Tribe” means the Crow Tribe and all officers, agents, and departments thereof.

32. “United States” means the federal government and all officers, agencies, and departments thereof.

33. “Yellowstone River Basin between Bighorn River and Tongue River” means Water Court Basin 42KJ, the mainstemof the Yellowstone River and its tributaries between Bighorn River and Tongue River, as depicted on the map attached asAppendix 2.

34. “Yellowstone River Basin between Clarks Fork Yellowstone River and Bighorn River” means Water Court Basin 43Q,the mainstem of the Yellowstone River and its tributaries between Clarks Fork Yellowstone River and Bighorn River, asdepicted on the map attached as Appendix 2.

ARTICLE III--TRIBAL WATER RIGHT

A. Basin 43P: Bighorn River.

1. Quantification--Source--Volume.

a. Natural Flow. The Tribe has a quantified water right to the Natural Flow of the Bighorn River for current uses developedas of the date this Compact has been ratified by the Montana legislature and new development within the Reservation of500,000 AFY. The use of this right is subject to Sections A.6. and A.8.a., of Article III, and the terms and conditions ofthe streamflow and lake level management plan agreed to in accordance with Section A.7., of Article III.

(1). The Tribe has a right to divert or use or to authorize the diversion or use of water from the Natural Flow of theBighorn River within the Reservation, subject to the terms and conditions in Section C., of Article IV.

(2). The Tribe may change the source of water from the Natural Flow of the Bighorn River to surface flow or storage ofany tributary within the Bighorn River Basin within the Reservation or to Groundwater within the Bighorn River Basinwithin the Reservation, subject to the terms and conditions in Section C.2.a., of Article IV.

(3). The use of the Tribal Water Right on units of the Crow Irrigation Project that divert water from the Bighorn Riveras part of that project is a use of the Natural Flow Tribal Water Right set forth in Section A.1.a., of Article III, in theBighorn River Basin, and the use of this water shall be subject to federal law.

b. Storage in Bighorn Lake.

ADD. 5




(1). Subject to the approval of, and any terms and conditions specified by, Congress and to the terms and conditionsof the streamflow and lake level management plan agreed to in accordance with Section A.7., of Article III, the Tribeshall be entitled to an allocation of 300,000 AFY of water stored in Bighorn Lake. The Tribe and the State agree to seekas a part of that allocation the following:

(a). not more than 150,000 AFY of the allocation provided in Section A.1. b.(1)., of Article III may be used or divertedas authorized by the Tribe, subject to the terms and conditions in Section C., of Article IV; provided that, not more than50,000 AFY may be used outside the Reservation subject to the terms and conditions in Section C.2.c., of Article IV.This storage allocation is in addition to the Natural Flow Tribal Water Right provided in Section A.1.a., of Article III.

(b). not less than 150,000 AFY of the allocation provided in Section A.1. b.(1) of Article III shall only be:

(i) managed so as to be available as a Release during low flow periods pursuant to streamflow and lake levelmanagement plan agreed to under Section A.7., of Article III; or

(ii) used for beneficial purposes including diversions for consumptive uses in years of excess Natural Flowsand excess storage, if any, when unappropriated or unallocated water is available, and subject to the terms andconditions in Section C., of Article IV.

(2). All other water stored in Bighorn Lake, except for the 6,000 AFY currently allocated by contract to the MontanaPower Company, or its successor-in-interest, and the 30,000 AFY allocated by Congress to the Northern CheyenneTribe, shall be used only for flood control, production of power, maintenance of instream flows, maintenance of lakelevels and carryover storage, consistent with Section A.7., of Article III and federal law.

2. Priority Date.

a. Natural Flow. The priority date of the Natural Flow Tribal Water Right set forth in Section A.1.a., of Article III shallbe May 7, 1868.

b. Storage. The priority date of the Tribal Water Right to waters stored in Bighorn Lake set forth in Section A.1.b.(1)., ofArticle III shall be the priority date of the water right held by the Bureau of Reclamation as decreed or to be decreed bythe Montana Water Court pursuant to 85-2-234, MCA.

3. Period of Use. The period of use of this water right shall be from January 1 through December 31 of each year.

4. Points and Means of Diversion. Subject to the terms and conditions in Article IV, and except for the 50,000 AFY thatmay be used outside the Reservation as provided in Section A.1.b.(1).(a)., of Article III, the Tribe may divert or permit thediversion of this water right from any place and by any means within the Reservation for use within the Reservation, providedthat, any diversion structure of the Tribal Water Right upstream of the Two Leggins diversion on the Bighorn River will beconstructed to bypass streamflows established or modified pursuant to Section A.7., of Article III.

ADD. 6




5. Purposes. Subject to the terms and conditions in Article IV, the Tribal Water Right may be used for any purpose withinthe Reservation allowed by Tribal and federal law.

6. Protection of Water Rights Recognized Under State Law.

a. Except as provided in Section G.2., of Article III, water rights Recognized Under State Law in the Bighorn River Basinwith a priority date before this Compact has been ratified by the Montana legislature or excepted rights that are providedin Section D.1., of Article IV, are protected from:

(1). an assertion of senior priority in the exercise of current uses of the Tribal Water Right developed as of the date thisCompact has been ratified by the Montana legislature.

(2). new development of the Tribal Water Right after the date this Compact has been ratified by the Montana legislature.New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized UnderState Law in the Bighorn River Basin with a priority date before this Compact has been ratified by the Montanalegislature or excepted rights that are provided in Section D.1., of Article IV.

b. The protection of water rights Recognized Under State Law set forth in Sections A.6.a.(1). and (2)., of Article III extendsto: valid existing water rights as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234, MCA;permits issued by DNRC; state water reservations issued by the Montana Board of Natural Resources and Conservation orDNRC (except for Water Reservation No. 1781-r (g)); water rights exempt from filing in the state adjudication pursuantto 85-2-222, MCA; and, water rights excepted from the permit process pursuant to 85-2-306, MCA. With the exception ofrights exempt from filing in the state adjudication pursuant to 85-2-222, MCA, and rights excepted from the permit processpursuant to 85-2-306, MCA, a list of existing water rights as currently claimed and permits and reservations issued isattached as Appendix 3. Appendix 3 shall be modified by decrees resolving claims on the affected basin. Prior to issuanceof the final decree, water rights protected shall be as recognized under state law, and all remedies available under state lawshall be applicable. Appendix 3 may be modified due to clerical error or omission or to make Appendix 3 consistent withmodifications in accordance with 85-2-237, 85-2-314, or 85-2-316(10) through (13), MCA.

c. Administration and distribution between State and Tribal water uses within the Reservation shall be as provided inSection A.4., of Article IV.

d. New development, Change in Use, or Transfer of the Tribal Water Right shall not Adversely Affect the exercise ofwater rights Recognized Under State Law in the Bighorn River Basin with a priority date before this Compact has beenratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IV. Measures to preventAdverse Affect may include Release of water from Bighorn Lake.

e. Existing uses of the Tribal Water Right shall not be Adversely Affected by new development, Change in Use, or Transferof the Tribal Water Right, except that the Tribe may allow Adverse Affect on uses of the Tribal Water Right on Triballyowned land.

ADD. 7




7. Streamflow and Lake Level Management Plan. Pursuant to this Compact, the Tribe, the Secretary, and the State shalldevelop a streamflow and lake level management plan for the Bighorn River, from the Yellowtail Afterbay Dam to a pointimmediately upstream of the Two Leggins diversion, and for Bighorn Lake. The streamflow and lake level managementplan shall be agreed to within one (1) year after this Compact has been ratified by the Montana legislature. If the streamflowand lake level management plan is not agreed to by the Tribe, the Secretary, or the State the provisions of Section A.4.d.,of Article VII apply. The streamflow and lake level management plan is not required to be implemented until the EffectiveDate of this Compact. The streamflow and lake level management plan may be modified at any time with the consent of theTribe, the Secretary, and the State. The Montana legislature intends that the streamflow management plan should provideenforceable mechanisms that protect the long-term biological viability of the blue ribbon wild trout fishery on the BighornRiver from the Yellowtail Afterbay Dam to the Two Leggins diversion.

8. Basin Closure within the Bighorn River Basin.

a. In the Bighorn River Basin, DNRC shall not process or grant an application for an appropriation after this Compact hasbeen ratified by the Montana legislature, provided that, in accordance with the terms and conditions in Section D.1., ofArticle IV, the DNRC may issue a certificate of water right or permit for use on fee land for:

(1). an appropriation of Groundwater by means of a well or developed spring with a maximum appropriation of 35gallons per minute or less, not to exceed 10 acre-feet per year, unless the appropriation is a combined appropriationfrom the same source from two or more wells or developed springs exceeding the limitation.

(2). an appropriation of water for use by livestock if the maximum capacity of the impoundment or pit is less than 15 acre-feet and the appropriation is less than 30 acre-feet per year and is from a source other than a perennial flowing stream.

(3). temporary emergency appropriations as provided in 85-2-113(3), MCA.

b. The basin closure applies only to appropriations not excepted from the permit process, as provided in Section D.1., ofArticle IV, issued under state law and is not a limit on new development of the Tribal Water Right as set forth in thisCompact.

c. The basin closure applies only to new appropriations not excepted from the permit process, as provided in Section D.1.,of Article IV, and is not a limit on change of use or transfers of water rights Recognized Under State Law, subject to theterms and conditions in Section D.2., of Article IV.

B. Basin 43O: Little Bighorn River.


a. The Tribe has a water right for all surface flow, Groundwater, and storage within the Little Bighorn River Basin, except asprovided for in Sections B.6., and B.7.a., of Article III, and except for water apportioned to Wyoming, if any, as determined

ADD. 8




by a court of competent jurisdiction or Congress. Development of the Tribal Water Right shall be subject to the terms andconditions in Section C., of Article IV.

b. The use of the Tribal Water Right on units of the Crow Irrigation Project that divert water in the Little Bighorn RiverBasin as part of that project is a use of the Tribal Water Right set forth in Section B.1.a., of Article III, and the use of thiswater shall be subject to federal law. Water stored in Willow Creek Reservoir also is a use of the Tribal Water Right.

2. Priority Date. The priority date of the Tribal Water Right set forth in Section B.1., of Article III shall be May 7, 1868.


4. Points and Means of Diversion. Subject to the terms and conditions in Article IV, the Tribe may divert or permit thediversion of the Tribal Water Right from any place and by any means within the Little Bighorn River Basin within theReservation for use within the Reservation or in connection with Tribal Interests in the Ceded Strip subject to the terms andconditions in Section F., of Article III and Section C.2.b., of Article IV.

5. Purposes. Subject to the terms and conditions in Article IV, the Tribal Water Right may be used within the Reservationfor any purpose allowed by Tribal and federal law.


a. Except as provided in Section G.2., of Article III, water rights Recognized Under State Law in the Little Bighorn RiverBasin with a priority date before this Compact has been ratified by the Montana legislature or excepted rights that areprovided in Section D.1., of Article IV, are protected from:


(2). new development of the Tribal Water Right after the date this Compact has been ratified by the Montana legislature.New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized UnderState Law in the Little Bighorn Basin with a priority date before this Compact has been ratified by the Montana legislatureor excepted rights that are provided in Section D.1., of Article IV.

b. The protection of water rights Recognized Under State Law set forth in Sections B.6.a.(1). and (2)., of Article III extendsto: valid existing water rights as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234, MCA;permits issued by DNRC; state water reservations issued by the Montana Board of Natural Resources and Conservation orDNRC (except for Water Reservation No. 1781-r (g)); water rights exempt from filing in the state adjudication pursuantto 85-2-222, MCA; and, water rights excepted from the permit process pursuant to 85-2-306, MCA. With the exception ofrights exempt from filing in the state adjudication pursuant to 85-2-222, MCA, and rights excepted from the permit processpursuant to 85-2-306, MCA, a list of existing water rights as currently claimed and permits and reservations issued isattached as Appendix 3. Appendix 3 shall be modified by decrees resolving claims on the affected basin. Prior to issuanceof the final decree, water rights protected shall be as recognized under state law, and all remedies available under state law

ADD. 9




shall be applicable. Appendix 3 may be modified due to clerical error or omission or to make Appendix 3 consistent withmodifications in accordance with 85-2-237, 85-2-314, or 85-2-316(10) through (13), MCA.


d. New development, Change in Use, or Transfer of the Tribal Water Right shall not Adversely Affect the exercise ofwater rights Recognized Under State Law in the Little Bighorn River Basin with a priority date before this Compact hasbeen ratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IV.


7. Basin Closure within the Little Bighorn River Basin.

a. In the Little Bighorn River Basin, DNRC shall not process or grant an application for an appropriation after this Compacthas been ratified by the Montana legislature, provided that, in accordance with the terms and conditions in Section D.1.,of Article IV, DNRC may issue a certificate of water right or permit for use on fee land for:




b. The basin closure applies only to new appropriations not excepted from the permit process, as provided in Section D.1.,of Article IV, issued under state law and is not a limit on new development of the Tribal Water Right as set forth in thisCompact.


C. Basin 43E: Pryor Creek.


ADD. 10




a. The Tribe has a water right for all surface flow, Groundwater, and storage within the Pryor Creek Basin within theReservation, except as provided for in Sections C.6. and C.7.a., of Article III. Development of the Tribal Water Right shallbe subject to the terms and conditions in Section C., of Article IV.

b. The use of the Tribal Water Right on units of the Crow Irrigation Project that divert water in the Pryor Creek Basin aspart of that project is a use of the Tribal Water Right set forth in Section C.1.a., of Article III, and the use of this watershall be subject to federal law.

2. Priority Date. The priority date of the Tribal Water Right set forth in Section C.1., of Article III shall be May 7, 1868.


4. Points and Means of Diversion. Subject to the terms and conditions in Article IV, the Tribe may divert or permit thediversion of the Tribal Water Right from any place and by any means within the Pryor Creek Basin within the Reservationfor use within the Reservation.



a. Except as provided in Section G.2., of Article III, water rights Recognized Under State Law in the Pryor Creek Basinwith a priority date before this Compact has been ratified by the Montana legislature or excepted rights that are providedin Section D.1., of Article IV, are protected from:


(2). new development of the Tribal Water Right after the date this Compact has been ratified by the Montana legislature.New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized UnderState Law in the Pryor Creek Basin with a priority date before this Compact has been ratified by the Montana legislatureor excepted rights that are provided in Section D.1., of Article IV.

b. The protection of water rights Recognized Under State Law set forth in Sections C.6.a.(1). and (2)., of Article III extendsto: valid existing water rights as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234, MCA; permitsissued by DNRC; state water reservations issued by the Montana Board of Natural Resources and Conservation or DNRC;water rights exempt from filing in the state adjudication pursuant to 85-2-222, MCA; and, water rights excepted fromthe permit process pursuant to 85-2-306, MCA. With the exception of rights exempt from filing in the state adjudicationpursuant to 85-2-222, MCA, and rights excepted from the permit process pursuant to 85-2-306, MCA, a list of existingwater rights as currently claimed and permits and reservations issued is attached as Appendix 3. Appendix 3 shall bemodified by decrees resolving claims on the affected basin. Prior to issuance of the final decree, water rights protected

ADD. 11




shall be as recognized under state law, and all remedies available under state law shall be applicable. Appendix 3 maybe modified due to clerical error or omission or to make Appendix 3 consistent with modifications in accordance with85-2-237, 85-2-314, or 85-2-316(10) through (13), MCA.


d. New development, Change in Use, or Transfer of the Tribal Water Right shall not Adversely Affect the exercise of waterrights Recognized Under State Law in the Pryor Creek Basin with a priority date before this Compact has been ratified bythe Montana legislature or excepted rights that are provided in Section D.1., of Article IV.


7. Basin Closure within the Pryor Creek Basin.

a. In the Pryor Creek Basin, DNRC shall not process or grant an application for an appropriation after this Compact hasbeen ratified by the Montana legislature, provided that, in accordance with the terms and conditions in Section D.1., ofArticle IV, DNRC may issue a certificate of water right or permit for use on fee land for:






D. Basin 42A: Rosebud Creek.

ADD. 12




1. Quantification--Source--Volume. The Tribe has a water right for all surface flow, Groundwater, and storage within theRosebud Creek Basin within the Reservation, except as provided for in Sections D.6. and D.7., of Article III. Developmentof the Tribal Water Right shall be subject to the terms and conditions in Section C., of Article IV.

2. Priority Date. The priority date of the Tribal Water Right set forth in Section D.1., of Article III shall be May 7, 1868.


4. Points and Means of Diversion. Subject to the terms and conditions in Article IV, the Tribe may divert or permit thediversion of the Tribal Water Right from any place and by any means within the Rosebud Creek Basin for use within theReservation.



a. Within the Reservation. Except as provided in Section G.2., of Article III, water rights Recognized Under State Law inthe Rosebud Creek Basin within the Reservation with a priority date before this Compact has been ratified by the Montanalegislature or excepted rights that are provided in Section D.1., of Article IV, are protected from:


(2). new development of the Tribal Water Right after the date this Compact has been ratified by the Montana legislature.New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized UnderState Law in the Rosebud Creek Basin with a priority date before this Compact has been ratified by the Montanalegislature or excepted rights that are provided in Section D.1., of Article IV.

b. The protection of water rights Recognized Under State Law set forth in Sections D.6.a.(1). and (2)., of Article III extendsto: valid existing water rights as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234, MCA; permitsissued by DNRC; state water reservations issued by the Montana Board of Natural Resources and Conservation or DNRC;water rights exempt from filing in the state adjudication pursuant to 85-2-222, MCA; and, water rights excepted fromthe permit process pursuant to 85-2-306, MCA. With the exception of rights exempt from filing in the state adjudicationpursuant to 85-2-222, MCA, and rights excepted from the permit process pursuant to 85-2-306, MCA, a list of existingwater rights as currently claimed and permits and reservations issued within the Reservation is attached as Appendix 3.Appendix 3 shall be modified by decrees resolving claims on the affected basin. Prior to issuance of the final decree, waterrights protected shall be as recognized under state law, and all remedies available under state law shall be applicable.Appendix 3 may be modified due to clerical error or omission or to make Appendix 3 consistent with modifications inaccordance with 85-2-237, 85-2-314, or 85-2-316(10) through (13), MCA.

ADD. 13





d. Outside the Reservation. Except as provided in Section G.2., of Article III, water rights Recognized Under State Lawin the Rosebud Creek Basin outside the Reservation are protected from an assertion of senior priority in the exercise ofthe Crow Tribal Water Right to the same extent provided in the Northern Cheyenne--Montana Compact, Sections A.3.c.i.and ii., of Article II, 85-20-301, MCA. Protection from an assertion of senior priority in the exercise of the Crow TribalWater Right for the Northern Cheyenne Tribal Water Right shall only be as provided in Section D.7., of Article III.

e. New development, Change in Use, or Transfer of the Tribal Water Right shall not Adversely Affect the exercise ofwater rights Recognized Under State Law in the Rosebud Creek Basin within the Reservation with a priority date beforethis Compact has been ratified by the Montana legislature or excepted rights that are provided in Section D.1., of ArticleIV, or outside the Reservation to the same extent provided in the Northern Cheyenne--Montana Compact, Section A.3.c.i.and ii., of Article II, 85-20-301, MCA.

f. Existing uses of the Tribal Water Right shall not be Adversely Affected by development, Change in Use, or Transferof the Tribal Water Right, except that the Tribe may allow Adverse Affect of uses of the Tribal Water Right on Triballyowned land.

7. Protection of Northern Cheyenne Tribal Water Rights within the Northern Cheyenne Reservation.

a. Except as provided in Section G.2., of Article III, the Northern Cheyenne Tribal Water Right, recognized in the NorthernCheyenne--Montana Compact, Section A.3.a., of Article II, 85-20-301, MCA, is protected from an assertion of seniorpriority in the exercise of the Crow Tribal Water Right.

b. New development, Change in Use, or Transfer of the Crow Tribal Water Right shall not Adversely Affect the exerciseof the Northern Cheyenne Tribal Water Right, recognized in the Northern Cheyenne--Montana Compact, Section A.3.a.,of Article II, 85-20-301, MCA.

8. Basin Closure within the Rosebud Creek Basin within the Reservation.

a. In the Rosebud Creek Basin upstream from the point that Rosebud Creek or any tributary of Rosebud Creek leaves theReservation, DNRC shall not process or grant an application for an appropriation after this Compact has been ratified bythe Montana legislature, provided that, in accordance with the terms and conditions in Section D.1., of Article IV, DNRCmay issue a certificate of water right or permit for use on fee land for:


ADD. 14








E. Youngs Creek drainage, Squirrel Creek drainage, Tanner Creek drainage, Dry Creek drainage, and Spring Creek drainagewithin Tongue River Basin; Sarpy Creek drainage within Yellowstone River Basin between Bighorn River and Tongue River;Cottonwood Creek drainage, Five Mile Creek drainage, and Bluewater Creek drainage within Clarks Fork Yellowstone RiverBasin; Sage Creek drainage within Shoshone River Basin; and, Fly Creek drainage, Blue Creek drainage, Dry Creek drainage,and Bitter Creek drainage within Yellowstone River Basin between Clarks Fork Yellowstone River and Bighorn River.

1. Quantification--Source--Volume. The Tribe has a water right for all surface flow, Groundwater, and storage within theReservation within Youngs Creek drainage, Squirrel Creek drainage, Tanner Creek drainage, Dry Creek drainage, and SpringCreek drainage within Tongue River Basin; Sarpy Creek drainage within Yellowstone River Basin between Bighorn Riverand Tongue River; Cottonwood Creek drainage, Five Mile Creek drainage, and Bluewater Creek drainage within Clarks ForkYellowstone River Basin; Sage Creek drainage within Shoshone River Basin; and, Fly Creek drainage, Blue Creek drainage,Dry Creek drainage, and Bitter Creek drainage within Yellowstone River Basin between Clarks Fork Yellowstone River andBighorn River, except as provided in Sections E.6. and E.7.a., of Article III. Development of the Tribal Water Right shallbe subject to the terms and conditions in Section C., Article IV.

2. Priority Date. The priority date of the Tribal Water Right set forth in Section E.1., of Article III shall be May 7, 1868.


4. Points and Means of Diversion. Subject to the terms and conditions in Article IV, the Tribe may divert or permit thediversion of the Tribal Water Right from any place and by any means within the drainages listed in Section E.1., of ArticleIII within the Reservation for use within the Reservation.

5. Purposes. Subject to the terms and conditions in Article IV, the Tribal Water Right may be used for any purpose withinthe Reservation allowed by Tribal and federal law.


ADD. 15




a. Except as provided in Section G.2., of Article III, water rights Recognized Under State Law in the drainages listedin Section E.1., of Article III, with a priority date before this Compact has been ratified by the Montana legislature orexcepted rights that are provided in Section D.1., of Article IV, are protected from:


(2). new development of the Tribal Water Right after the date this Compact has been ratified by the Montana legislature.New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized UnderState Law in the drainages listed in Section E.1., of Article III with a priority date before this Compact has been ratifiedby the Montana legislature or excepted rights that are provided in Section D.1., of Article IV.

b. The protection of water rights Recognized Under State Law set forth in Sections E.6.a.(1). and (2)., of Article III extendsonly to: valid existing water rights as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234, MCA;permits issued by DNRC; state water reservations issued by the Montana Board of Natural Resources and Conservationor DNRC; water rights exempt from filing in the state adjudication pursuant to 85-2-222, MCA; and, water rightsexcepted from the permit process pursuant to 85-2-306, MCA. With the exception of rights exempt from filing in the stateadjudication pursuant to 85-2-222, MCA, and rights excepted from the permit process pursuant to 85-2-306, MCA, a listof existing water rights as currently claimed and permits and reservations issued is attached as Appendix 3. Appendix 3shall be modified by decrees resolving claims on the affected basins. Prior to issuance of the final decree, water rightsprotected shall be as recognized under state law, and all remedies available under state law shall be applicable. Appendix3 may be modified due to clerical error or omission or to make Appendix 3 consistent with modifications in accordancewith 85-2-237, 85-2-314, or 85-2-316(10) through (13), MCA.


d. New development, Change in Use, or Transfer of the Tribal Water Right shall not Adversely Affect the exercise of waterrights Recognized Under State Law in each drainage listed in Section E.1., of Article III, with a priority date before thisCompact has been ratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IV.

e. Existing uses of the Tribal Water Right shall not be Adversely Affected by development, Change in Use, or Transferof the Tribal Water Right, except that the Tribe may allow Adverse Affect of uses of the Tribal Water Right on Triballyowned land.

7. Basin Closure within the Reservation.

a. In the drainages listed in Section E.l., of Article III, upstream from the point that each stream or its tributaries leaves theReservation, DNRC shall not process or grant an application for an appropriation after this Compact has been ratified bythe Montana legislature, provided that, in accordance with the terms and conditions in Section D.1., of Article IV, DNRCmay issue a certificate of water right or permit for use on fee land for:

ADD. 16









F. Tribal Water Right in the Ceded Strip.


a. Tribal Interests in the Ceded Strip. As part of the Tribal Water Right, the Tribe has a right to divert a total of 47,000AFY from surface flow, Groundwater, or storage within the Ceded Strip from portions of the Sarpy Creek drainage andYellowstone River within Yellowstone River Basin between Bighorn River and Tongue River; Fly Creek drainage andYellowstone River within Yellowstone River Basin between Clarks Fork Yellowstone River and Bighorn River; PryorCreek Basin; and Bighorn River Basin for use in connection with Tribal Interests in the Ceded Strip; and, water importedto the Ceded Strip from the Little Bighorn River Basin for use in connection with Tribal Interests in the Ceded Strip.Diversion and use shall be subject to the terms and conditions in Sections C.1.c. and C.1.d., of Article IV.

(1). This 47,000 AFY is in addition to the Tribal Water Right set forth in Sections A.1., B.1., C.1., and E.1., of ArticleIII, except that any diversion of this right from surface flow, Groundwater, or storage within the Bighorn River Basinshall be deducted from the Tribal Water Right as set forth in Section A.1., of Article III.

(2). No more than 47,000 AFY may be diverted and used in connection with Tribal Interests in the Ceded Strip fromall water sources, provided that:

(a). no more than 2,500 AFY from all water sources including the Yellowstone River may be diverted upstream fromthe confluence of the Bighorn River and the Yellowstone River.

(b). no more than 7,000 AF may be diverted from all sources including the Yellowstone River in any month, providedthat, aggregate uses from all sources not exceed 47,000 AFY. ADD. 17




b. Use limited to within the Ceded Strip. The Tribal Water Right of 47,000 AFY for use in connection with Tribal Interestsin the Ceded Strip shall be used only within the Ceded Strip and shall not be considered a Change in Use or Transferoutside the Reservation for purposes of Section C.2.c., of Article IV.

c. Any portion of the 50,000 AFY set forth in Section A.1.b.(1).(a)., of Article III which may be used outside the Reservationmay also be used in connection with Tribal Interests in the Ceded Strip in addition to the Tribal Water Right of 47,000AFY set forth in Section F.1.a., of Article III.

2. Priority Date. The priority date of the Tribal Water Right set forth in Section F.1.a., of Article III shall be May 7, 1868.


4. Points and Means of Diversion. Subject to the terms and conditions in Article IV, the Tribe may divert or permit thediversion of the Tribal Water Right from any place and by any means for use in connection with Tribal Interests in the CededStrip within the Ceded Strip.

5. Purposes. Subject to the terms and conditions in Article IV, the Tribal Water Right for use in connection with TribalInterests in the Ceded Strip may be used for beneficial purposes allowed by Tribal, federal and state law.


a. Except as provided in Section G.2., of Article III, water rights Recognized Under State Law affected by the exerciseof the Tribal Water Right in the Ceded Strip with a priority date before this Compact has been ratified by the Montanalegislature or excepted rights that are provided in Section D.1., of Article IV, are protected from:


(2). new development of the Tribal Water Right after the date this Compact has been ratified by the Montana legislature.New development of the Tribal Water Right shall be exercised as junior in priority to water rights Recognized UnderState Law with a priority date before this Compact has been ratified by the Montana legislature or excepted rights thatare provided in Section D.1., of Article IV.

b. The protection of water rights Recognized Under State Law set forth in Sections F.6.a.(1). and (2)., of Article III extendsto: valid existing water rights as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234, MCA; permitsissued by DNRC; state water reservations issued by the Montana Board of Natural Resources and Conservation or DNRC(except for Water Reservation Nos. 1781-r and 10006-r); water rights exempt from filing in the state adjudication pursuantto 85-2-222, MCA; and, water rights excepted from the permit process pursuant to 85-2-306, MCA. With the exception ofrights exempt from filing in the state adjudication pursuant to 85-2-222, MCA, and rights excepted from the permit processpursuant to 85-2-306, MCA, a list of existing water rights as currently claimed and permits and reservations issued is

ADD. 18




attached as Appendix 3. Appendix 3 shall be modified by decrees resolving claims on the affected basins. Prior to issuanceof the final decree, water rights protected shall be as recognized under state law, and all remedies available under state lawshall be applicable. Appendix 3 may be modified due to clerical error or omission or to make Appendix 3 consistent withmodifications in accordance with 85-2-237, 85-2-314, or 85-2-316(10) through (13), MCA.

c. New development, Change in Use, or Transfer of the Tribal Water Right shall not Adversely Affect the exercise of waterrights Recognized Under State Law with a priority date before this Compact has been ratified by the Montana legislatureor excepted rights that are provided in Section D.1., of Article IV.

d. Existing uses of the Tribal Water Right shall not be Adversely Affected by new development, Change in Use, or Transferof the Tribal Water Right, except that the Tribe may allow Adverse Affect on uses of the Tribal Water Right on Triballyowned land.

G. Additional Rights to Water. As part of the water rights specifically set forth in Sections A., B., C., D., E., and F., of ArticleIII, the Tribe has a right to water from the following sources:

1. Appurtenant Water Rights. For land within the Reservation acquired after the Effective Date of this Compact, the Tribehas the right to the use of any water right acquired as an appurtenance to the land. At such time that the acquired land istransferred to trust status, the water right appurtenant to the land acquired shall become part of and not in addition to theTribal Water Right quantified in this Compact with a May 7, 1868 priority date, provided that, the acquired water right shallretain any protections set forth in this Compact. The Tribe shall notify DNRC of any acquisition of water in the Tribe'sannual report and shall identify the water right acquired, as set forth in Section E.1., of Article IV. Any water right acquiredshall be added as decreed by the Montana Water Court to the list of current uses of the Tribal Water Right as provided inSection E.2., of Article IV.

2. Exempt Rights.

a. Religious or cultural uses of the Tribal Water Right by Crow Tribal members within the Reservation in de minimisamounts shall be allowed without prior review by DNRC.

b. In accordance with the terms and conditions in Section C.1., of Article IV, TWRD may authorize development of theTribal Water Right for:



(3). temporary emergency appropriations necessary to protect lives or property.

ADD. 19




c. Uses of the Tribal Water Right provided for in Sections G.2.a. and G.2.b., of Article III, are not subject to protection ofwater rights Recognized Under State Law provided in Sections A.6., B.6., C.6., D.6., D.7., E.6., and F.6., of Article III, orstreamflows established or modified pursuant to Section A.7., of Article III.

H. Proposed Decree. For purposes of entry in the Montana Water Court, the proposed decree of the Tribal Water Right set forthin Article III is attached as Appendix 1. If there are differences between Appendix 1 and the Final Decree, the Final Decreeshall control.

ARTICLE IV--IMPLEMENTATION OF TRIBAL WATER RIGHT

A. General Provisions.

1. Trust Status of Tribal Water Right. The Tribal Water Right shall be held in trust by the United States.

2. Tribal Water Right: Administration.

a. Subject to the limitations imposed by this Compact and federal law, the use of the Tribal Water Right shall beadministered by the Tribe through TWRD within the Reservation, in the Ceded Strip, and outside the Reservation. Disputes,not within the jurisdiction of the Compact Board set forth in F.4., of Article IV, concerning use of the Tribal Water Rightin the Ceded Strip and outside the Reservation which raise issues concerning the application of state or federal law shallbe resolved in a court of competent jurisdiction. Those disputes concerning use of the Tribal Water Right in the CededStrip and outside the Reservation which do not raise issues concerning the application of state or federal law shall bewithin the exclusive jurisdiction of the Tribe. Subject to the limitations imposed by this Compact, the Tribe shall havethe final and exclusive jurisdiction to resolve all disputes concerning the Tribal Water Right between holders of waterrights under the Tribal Water Right. TWRD shall develop policies and procedures for monitoring water use, diversions,and maintaining records of water use and development consistent with this Compact. The current water use and diversionsand new development shall be identified by location and quantity.

b. Administration and enforcement of the Tribal Water Right shall be pursuant to a Tribal water code, which shall bedeveloped and adopted by the Tribe within two (2) years following the Effective Date of this Compact pursuant toany requirements set forth in the Constitution of the Crow Tribe. Pending the adoption of the Tribal water code, theadministration and enforcement of the Tribal Water Right shall be by the Secretary of the Interior.

c. The Tribe shall not administer any water right Recognized Under State Law.

d. Administration, operation and maintenance, and delivery of the Tribal Water Right on the Crow Irrigation Project shall beconducted by the United States Department of the Interior, Bureau of Indian Affairs, in accordance with applicable federallaws. Portions of the Project within the Bozeman Trail and Two Leggins Districts shall be administered in accordancewith applicable law.

3. Water Rights Recognized Under State Law: Administration.

ADD. 20




a. The State shall administer and enforce all water rights Recognized Under State Law to the use of surface flows,Groundwater, and storage within or outside the Reservation. The State shall have the final and exclusive jurisdiction toresolve all disputes between holders of water rights Recognized Under State Law.

b. The State shall not administer or enforce any part of the Tribal Water Right.

c. For water rights Recognized Under State Law, if any, utilizing water delivered by the Crow Irrigation Project,administration and distribution of such water shall be conducted by the United States Department of the Interior, Bureauof Indian Affairs, in accordance with applicable federal laws.

4. Distribution of Water Between the Parties. When water availability is insufficient to satisfy all water rights under theTribal Water Right and all water rights Recognized Under State Law within the Reservation, administration and distributionshall be as follows:

a. distribution between the water administered by the Tribe and the United States for current uses of the Tribal Water Rightwithin the Reservation developed as of the date this Compact has been ratified by the Montana legislature and the waterfor water rights Recognized Under State Law within the Reservation with a priority date before this Compact has beenratified by the Montana legislature shall be on an equitable basis in proportion to the amount of water required for Tribalwater use as listed pursuant to Section E.2., of Article IV, and the amount of water required for water rights RecognizedUnder State Law, provided that, the Parties recognize that distribution may not be on a precise proportional basis due tothe need to take into account the physical constraints of water delivery. Administration and distribution by the Tribe, theUnited States, and the State within their proportional shares shall be pursuant to Tribal, federal, and state law respectively,and shall be coordinated as necessary. This distribution shall not modify the right of a holder of a water right RecognizedUnder State Law to seek enforcement of such water right against other water rights Recognized Under State Law in prioritywithout the agreement of the water right holder.

b. future development of the Tribal Water Right after this Compact has been ratified by the Montana legislature shall beenforced as junior in priority to the water rights subject to a proportional distribution as set forth in Section A.4.a., ofArticle IV.

c. nothing in Section A.4.a., of Article IV shall prevent water users from agreeing to an alternative water distribution planon the basis of individual water rights pursuant to applicable state, Tribal, or federal law.

5. Subsequent Federal or State Law. Administration under Sections A. 2.d., A.3.a. and A.3.c., of Article IV shall be as setforth in this Compact except as may otherwise be determined by a court of competent jurisdiction or established by Congress.

B. Use of the Tribal Water Right.

1. Persons Entitled to Use the Tribal Water Right. The Tribal Water Right may be used by the Tribe, Tribal members, orPersons authorized by the Tribe, provided that, the Tribe may not limit or deprive Indians residing on the Reservation orin the Ceded Strip of any right, pursuant to 25 U.S.C. . 381, to a just and equal portion of the Tribal Water Right set forthin Article III.

ADD. 21




2. Effect of Non-Use of the Tribal Water Right. State law doctrines relating to the use of water rights, including but notlimited to relinquishment, forfeiture or abandonment, do not apply to the Tribal Water Right. Thus, non-use of all or any ofthe Tribal Water Right described in Article III shall not constitute a relinquishment, forfeiture or abandonment of such rights.

C. Tribal Water Right: New Development, Change in Use, or Transfer.

1. New Development of Surface Flow, Groundwater, or Storage of the Tribal Water Right.

a. New Development of Surface Flow, Groundwater, or Storage Within the Reservation. After the Effective Date of thisCompact, the Tribe may develop or authorize new development of surface flow, Groundwater, or storage of the TribalWater Right within the Reservation; provided that, such development shall not Adversely Affect a water right RecognizedUnder State Law with a priority date before this Compact has been ratified by the Montana legislature or excepted rightsthat are provided in Section D.1., of Article IV.

b. Prerequisite Administrative Procedure within the Reservation. The following procedure for determining whether newdevelopment of surface flow, Groundwater, or storage of the Tribal Water Right within the Reservation will have anAdverse Affect on water rights Recognized Under State Law shall be followed prior to seeking relief from the CompactBoard:

(1). Application for new development of a surface flow, Groundwater, or storage use within the Reservation shall bemade to TWRD.

(2). TWRD shall review the application and make a determination of whether the new development will have an AdverseAffect on water rights Recognized Under State Law with a priority date before this Compact has been ratified by theMontana legislature or excepted rights that are provided in Section D.1., of Article IV. Upon request by TWRD, DNRCshall provide information on state water rights as recorded in the DNRC database to TWRD.

(3). If TWRD determines that the new development will have an Adverse Affect on a water right Recognized UnderState Law with a priority date before this Compact has been ratified by the Montana legislature or excepted rightsthat are provided in Section D.1., of Article IV, TWRD shall deny the application. If TWRD determines that the newdevelopment will not have an Adverse Affect on a water right Recognized Under State Law with a priority date beforethis Compact has been ratified by the Montana legislature or excepted rights that are provided in Section D.1., of ArticleIV, TWRD shall forward the application with its determination to DNRC.

(4). If, based upon the evidence, DNRC agrees with TWRD's determination, DNRC shall notify TWRD. If, however,based upon the evidence, DNRC cannot agree with TWRD's determination, DNRC shall publish notice of the applicationonce in a newspaper of general circulation in the area of the source and shall serve notice by first-class mail on anyholder of a water right Recognized Under State Law who, according to the records of the DNRC, has a water right witha priority date before this Compact has been ratified by the Montana legislature or excepted rights that are providedin Section D. 1., of Article IV, and may be affected by the proposed development. DNRC shall notify TWRD withinninety (90) days of DNRC's determination.

ADD. 22




(5). DNRC and TWRD should attempt to resolve any disagreement on TWRD's determination of no Adverse Affect ona cooperative basis. If DNRC or a holder of a water right Recognized Under State Law with a priority date before thisCompact has been ratified by the Montana legislature or excepted rights that are provided in Section D.1., of ArticleIV, disagree with the determination of no Adverse Affect, DNRC or the water right holder may seek relief from theCompact Board.

(6). In any proceeding concerning the effect of new Groundwater development of the Tribal Water Right within theReservation either before TWRD, DNRC, or before the Compact Board, the following shall apply:

(a). Wells Less than 100 Feet: For new Groundwater wells to be completed at a depth beneath the surface of lessthan 100 feet, the applicant shall bear the burden of showing no Adverse Affect to a water right Recognized UnderState Law with a priority date before this Compact has been ratified by the Montana legislature or excepted rightsthat are provided in Section D.1., of Article IV.

(b). 100 Feet or Deeper Wells: For new Groundwater wells to be completed at a depth beneath the surface of 100 feetor deeper, the owner of a water right Recognized Under State Law with a priority date before this Compact has beenratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IV, shall bear theburden of showing Adverse Affect to the water right.

(7). In any proceeding concerning the effect of new storage development of the Tribal Water Right within the Reservationeither before TWRD, DNRC, or before the Compact Board, the following shall apply:

(a). Storage Over 50 AF: For new storage facilities with a planned constructed capacity of more than 50 AF, theapplicant shall bear the burden of showing no Adverse Affect to a water right Recognized Under State Law with apriority date before this Compact has been ratified by the Montana legislature or excepted rights that are providedin Section D.1., of Article IV.

(b). Storage 50 AF or Less: For new storage facilities with a planned constructed capacity of 50 AF or less, theowner of the water right Recognized Under State Law with a priority date before this Compact has been ratified bythe Montana legislature or excepted rights that are provided in Section D.1., of Article IV, shall bear the burden ofshowing Adverse Affect to the water right.

c. New Development of Surface Flow, Groundwater, or Storage for Use in Connection with Tribal Interests in the CededStrip. After the Effective Date of this Compact, the Tribe may develop or authorize new development, from surface flow,Groundwater, or storage, of the Tribal Water Right as set forth in Section F., of Article III and subject to the terms andconditions in Section F.1., of Article III for use in connection with Tribal Interests in the Ceded Strip; provided that, suchdevelopment shall not Adversely Affect a water right Recognized Under State Law with a priority date before this Compacthas been ratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IV.

d. Prerequisite Administrative Procedure within the Ceded Strip. The following procedure for determining whether newdevelopment of surface flow, Groundwater, or storage of the Tribal Water Right for use in connection with Tribal Interestsin the Ceded Strip will have an Adverse Affect on water rights Recognized Under State Law shall be followed prior toseeking relief from the Compact Board: ADD. 23




(1). Application for new development of surface flow, Groundwater, or storage of the Tribal Water Right for use inconnection with Tribal Interests in the Ceded Strip shall be made to TWRD.

(2). TWRD shall review the application and make a determination of whether the new development will have an AdverseAffect on water rights Recognized Under State Law with a priority date before this Compact has been ratified by theMontana legislature or excepted rights that are provided in Section D.1., of Article IV or pursuant to 85-2-306, MCA.Upon request by TWRD, DNRC shall provide information on state water rights as recorded in the DNRC database toTWRD.

(3). If TWRD determines that the new development will have an Adverse Affect on a water right Recognized UnderState Law with a priority date before this Compact has been ratified by the Montana legislature or excepted rightsthat are provided in Section D.1., of Article IV or pursuant to 85-2-306, MCA, TWRD shall deny the application. IfTWRD determines that the new development will not have an Adverse Affect on a water right Recognized Under StateLaw with a priority date before this Compact has been ratified by the Montana legislature or excepted rights that areprovided in Section D. 1., of Article IV or pursuant to 85-2-306, MCA, TWRD shall forward the application with itsdetermination to DNRC.

(4). If, based upon the evidence, DNRC agrees with TWRD's determination, DNRC shall notify TWRD. If, however,based upon the evidence, DNRC cannot agree with TWRD's determination, DNRC shall publish notice of the applicationonce in a newspaper of general circulation in the area of the source and shall serve notice by first-class mail on anyholder of a water right Recognized Under State Law who, according to the records of the department, has a water rightwith a priority date before this Compact has been ratified by the Montana legislature or excepted rights that are providedin Section D.1., of Article IV or pursuant to 85-2-306, MCA, and may be affected by the proposed development. DNRCshall notify TWRD within ninety (90) days of DNRC's determination.

(5). DNRC and TWRD should attempt to resolve any disagreement on TWRD's determination of no Adverse Affect ona cooperative basis. If DNRC or a holder of a water right Recognized Under State Law with a priority date before thisCompact has been ratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IVor pursuant to 85-2-306, MCA, disagree with the determination of no Adverse Affect, DNRC or the water right holdermay seek relief from the Compact Board.

(6). In any proceeding concerning the effect of new Groundwater development of the Tribal Water Right for use inconnection with Tribal Interests in the Ceded Strip either before TWRD, DNRC, or before the Compact Board, thefollowing shall apply:

(a). Wells Less than 100 Feet: For new Groundwater wells to be completed at a depth beneath the surface of less than100 feet, the applicant shall bear the burden of showing no Adverse Affect to a water right Recognized Under StateLaw with a priority date before this Compact has been ratified by the Montana legislature or exempt rights that areprovided in Section D.1., of Article IV or pursuant to 85-2-306, MCA.

(b). 100 Feet or Deeper Wells: For new Groundwater wells to be completed at a depth beneath the surface of 100 feetor deeper, the owner of a water right Recognized Under State Law with a priority date before this Compact has been

ADD. 24




ratified by the Montana legislature or excepted rights that are provided in Section D.1., of Article IV or pursuant to85-2-306, MCA, shall bear the burden of showing Adverse Affect to the water right.

(7). In any proceeding concerning the effect of new storage development of the Tribal Water Right for use in connectionwith Tribal Interests in the Ceded Strip either before TWRD, DNRC, or before the Compact Board, the following shallapply:

(a). Storage Over 50 AF: For new storage facilities with a planned constructed capacity of more than 50 AF, theapplicant shall bear the burden of showing no Adverse Affect to a water right Recognized Under State Law with apriority date before this Compact has been ratified by the Montana legislature or excepted rights that are provided inSection D.1., of Article IV or pursuant to 85-2-306, MCA.

(b). Storage 50 AF or Less: For new storage facilities with a planned constructed capacity of 50 AF or less, the ownerof the water right Recognized Under State Law with a priority date before this Compact has been ratified by theMontana legislature or excepted rights that are provided in Section D.1., of Article IV or pursuant to 85-2-306, MCA,shall bear the burden of showing Adverse Affect to the water right.

e. Groundwater Development of the Tribal Water Right Exempt from the Showing of No Adverse Affect. The followingwells are exempt from the requirement of showing no Adverse Affect:

(1). Wells developed as of the date this Compact has been ratified by the Montana legislature are exempt from the burdento show no Adverse Affect. These wells may be replaced, repaired or rehabilitated to the original constructed capacity.A comprehensive list of wells developed as of the date this Compact has been ratified by the Montana legislature shallbe kept on file in TWRD offices as part of the requirement to list current uses of the Tribal Water Right in SectionE.2., of Article IV.

(2). An authorized use of Groundwater by means of a well or developed spring with a maximum appropriation of 35gallons per minute or less, not to exceed 10 acre-feet per year, unless the appropriation is a combined appropriationfrom the same source from two or more wells or developed springs exceeding the limitation.

f. Storage Development of the Tribal Water Right Exempt from the Showing of No Adverse Affect. The following storagefacilities are exempt from the requirement of showing no Adverse Affect:

(1). Facilities storing the Tribal Water Right developed as of the date this Compact has been ratified by the Montanalegislature are exempt from the burden to show no Adverse Affect. These storage facilities may be replaced, repaired orrehabilitated to the original constructed capacity. A comprehensive list of storage facilities developed as of the date thisCompact has been ratified by the Montana legislature shall be kept on file in TWRD offices as part of the requirementto list current uses of the Tribal Water Right in Section E.2., of Article IV.

(2). An authorized use of water for use by livestock if the maximum capacity of the impoundment or pit is less than15 acre-feet and the appropriation is less than 30 acre-feet per year and is from a source other than a perennial flowingstream.

ADD. 25




2. Change in Use or Transfer of the Tribal Water Right.

a. Change in Use or Transfer of the Tribal Water Right Within the Reservation. Unless otherwise stated in this Compact,the Tribe may make or authorize a Change in Use or Transfer of a water right set forth in Article III of this Compact withinthe Reservation; provided that, such Change in Use or Transfer shall not Adversely Affect a water right Recognized UnderState Law with a priority date before the date of the Change in Use or Transfer. Determination of Adverse Affect shallbe made following the same procedure used for review of new surface flow, Groundwater, or storage development of theTribal Water Right set forth in Sections C.1.a. and C.1.b. , of Article IV.

b. Change in Use or Transfer of the Tribal Water Right Within the Ceded Strip. Unless otherwise stated in this Compact,the Tribe may make or authorize a Change in Use or Transfer of the Tribal Water Right set forth in Section F.1.a., ofArticle III within the Ceded Strip; provided that, such Change in Use or Transfer shall not Adversely Affect a water rightRecognized Under State Law with a priority date before the date of the Change in Use or Transfer. Determination ofAdverse Affect shall be made following the same procedure used for review of new surface flow, Groundwater, or storagedevelopment of the Tribal Water Right within the Ceded Strip set forth in Sections C.1.c. and C.1.d., of Article IV.

c. Change in Use or Transfer of the Tribal Water Right Outside the Reservation. Except as otherwise provided in thisCompact, the Tribe, pursuant to federal law, may make or authorize a Change in Use or a Transfer of the Tribal WaterRight for up to 50,000 acre-feet of water as provided in Section A.1.b.(1).(a)., of Article III, for use outside the Reservation;provided that, any Transfer shall be for a term not to exceed 100 years, and may include provisions authorizing renewalfor an additional term not to exceed 100 years; and provided that, no such Transfer shall be a permanent alienation ofthe water Transferred. Any Change in Use or Transfer of any such water right involving a point of diversion or place ofuse located outside the Reservation shall be considered a use outside the Reservation, except as provided in Section F.,of Article III and Section C.2.b., of Article IV; and, further provided that, any use of Tribal water rights described in thisCompact outside the Reservation shall not be deemed to convert such rights to rights arising under state law, and non-use of such rights outside the Reservation shall not constitute a relinquishment, forfeiture, or abandonment of the rights.The Tribe may change the point of diversion or purpose or place of use of the Tribal Water Right back to the Reservationwithout reduction in the amount of water provided in the Compact.

(1). Applicable Law. No person may initiate a use, Change in Use, or Transfer of a Tribal water right set forth in thisCompact outside the Reservation without first complying with applicable state law. Approval of an application for ause, Change in Use, or Transfer outside the Reservation by the State shall be conditioned on a valid Tribal authorizationfor such use, Change in Use, or Transfer by the Tribe. The applicant shall provide DNRC with proof of a valid Tribalauthorization prior to initiating the use, Change in Use, or Transfer.

(2). Diversion Facilities. With respect to diversion or transportation facilities located outside the Reservation which areto be used in connection with the exercise of a water right set forth in this Compact, the Tribe or Persons using suchwater right shall apply for all permits, certificates, variances and other authorizations required by state laws regulating,conditioning or permitting the siting, construction, operation, alteration or use of any equipment, device, facility orassociated facility proposed to use or transport water. A diversion or use of water in the exercise of such water rightmay be made only after all permits, certificates, variances or other authorizations applied for pursuant to this paragraphhave been obtained.

D. Water Rights Recognized Under State Law: New Development, Change in Use, or Transfer.

ADD. 26




1. Limit on New Development. DNRC shall not process or grant an application for an appropriation after this Compact hasbeen ratified by the Montana legislature within the Reservation, and outside the Reservation in Bighorn River Basin and inPryor Creek Basin, provided that, the Department may issue certificates of water right or permits for use on fee land for:

a. An appropriation of Groundwater by means of a well or developed spring with a maximum appropriation of 35 gallonsper minute or less, not to exceed 10 acre-feet per year, unless the appropriation is a combined appropriation from the samesource from two or more wells or developed springs exceeding the limitation.

b. An appropriation of water for use by livestock if the maximum capacity of the impoundment or pit is less than 15 acre-feet and the appropriation is less than 30 acre-feet per year and is from a source other than a perennial flowing stream.

c. Temporary emergency appropriations as provided in 85-2-113(3), MCA.

2. Change in Use or Transfer of Water Rights Recognized Under State Law within the Reservation. The State may authorizea change in use or transfer of a water right Recognized Under State Law within the Reservation in accordance with statelaw, provided that, such change or transfer shall not Adversely Affect a use of the Tribal Water Right existing at the timeof the application for change in use or transfer.

a. Prerequisite Administrative Procedure. The following procedure for determining whether a change in use or transfer ofa water right Recognized Under State Law within the Reservation will have an Adverse Affect on an existing water rightdeveloped or authorized prior to the date of application for change of use or transfer under the Tribal Water Right shallbe followed prior to seeking relief from the Compact Board:

(1). Application for a change in use or transfer of a water right Recognized Under State Law within the Reservationshall be made to DNRC.

(2). DNRC shall review the application and make a determination of whether the change in use or transfer of a waterright Recognized Under State Law within the Reservation will have an Adverse Affect on a water right developed orauthorized under the Tribal Water Right. Upon request by DNRC, TWRD shall provide information on developed andauthorized Tribal Water Rights as recorded by TWRD to DNRC.

(3). If DNRC determines that the change in use or transfer of a water right Recognized Under State Law within theReservation will have an Adverse Affect on a water right developed or authorized under the Tribal Water Right, DNRCshall deny the application. If DNRC determines that the change in use or transfer of a water right Recognized UnderState Law within the Reservation will not have an Adverse Affect on a water right developed or authorized under theTribal Water Right, DNRC shall forward the application with its determination to TWRD.

(4). If, based upon the evidence, TWRD agrees with DNRC's determination, TWRD shall notify DNRC. If, however,based upon the evidence, TWRD cannot agree with DNRC's determination, TWRD shall publish notice of the applicationonce in a newspaper of general circulation in the area of the source and shall serve notice by first-class mail on anyTribal Water Right holder who, according to the records of TWRD, has a water right developed or authorized before

ADD. 27




the application date and may be affected by the proposed change in use or transfer of a water right Recognized UnderState Law within the Reservation. TWRD shall notify DNRC within ninety (90) days of TWRD's determination.

(5). TWRD and DNRC should attempt to resolve any disagreement on DNRC's determination of no Adverse Affecton a cooperative basis. If TWRD or a holder of a water right developed or authorized under the Tribal Water Rightdisagree with the determination of no Adverse Affect, TWRD or the Tribal Water Right holder may seek relief fromthe Compact Board.

E. Reporting Requirements.

1. On an annual basis DNRC shall provide the Tribe and the United States with a listing of all uses of surface flow,Groundwater, or storage for which a certificate of water right or permit has been issued or a change in use or transfer hasbeen approved by DNRC within the Reservation, in the Ceded Strip, and in drainages affected by this Compact.

2. Within one (1) year after this Compact has been ratified by the Montana legislature, the TWRD and the United States shallprovide the DNRC with a report listing all current uses of the Tribal Water Right, including uses by Tribal members, existingas of the date this Compact has been ratified by the Montana legislature. DNRC may request additional information fromTWRD or the United States to assist in reviewing the report. DNRC must approve or disapprove of the listing of all currentuses of the Tribal Water Right within six (6) months after receipt of the report.

3. On an annual basis TWRD shall provide the DNRC and the United States with a listing of all new development of theTribal Water Right described in this Compact within the Reservation, in the Ceded Strip, and outside the Reservation, andof all Changes in Use or Transfers of water rights within and outside the reservation since the last report.

4. TWRD, DNRC, and the United States may agree to modify the reporting requirements set forth in Sections D.1. and D.3.,of Article IV. Such modification is pursuant to, and shall not be deemed a modification of, this Compact.

5. All reporting to the United States under this subsection shall be made to the Billings Area Office of the Bureau of IndianAffairs.

F. Enforcement: Crow-Montana Compact Board.

1. Establishment of Board. There is hereby established the Crow-Montana Compact Board. The Board shall consist ofthree members: one member selected by the Governor of the State of Montana; one member appointed by the Crow TribalChairman; and one member selected by the other two members. All members shall be appointed within six (6) months of theEffective Date of this Compact and within thirty (30) days of the date any vacancy occurs. If an appointment is not timelymade by the Governor, the Director of DNRC or his/her designee shall fill the State's position. If an appointment is not timelymade by the Crow Tribal Chairman, the Director of TWRD or his/her designee shall fill the Tribe's position. Each membershall serve a five-year term and shall be eligible for reappointment. The initial term of each member shall be staggered withone member serving a five-year term, one a four-year term, and one a three-year term. The initial term of each member shallbe chosen by lot. Expenses of the members appointed by the State and the Tribe shall be borne by the entity appointing themember. The expenses of the third member and all other expenses shall be borne equally by the Tribe and the State, subjectto the availability of funds. ADD. 28




2. Membership. Should the two appointed members fail to agree on the selection of a third member within sixty (60) days ofthe date of appointment of the second member, or within thirty (30) days after any vacancy occurs, the following procedureshall be utilized:

a. Within five (5) days thereafter each member shall nominate three persons to serve as a member of the Board;

b. Within fifteen (15) days thereafter each member shall reject two of the persons nominated by the other member;

c. Within five (5) days thereafter, the remaining two nominees shall be submitted to the Dean of the University of MontanaSchool of Law who shall select the third member from the two nominees.

3. Quorum and Vote Required. Two members of the Board shall constitute a quorum if reasonable notice of the time, place,and purpose of the meeting, hearing, or other proceeding has been provided in advance to the absent member. All Boarddecisions shall be by a majority of the Board, shall be in writing and, together with any dissenting opinions, shall be servedon all parties in the proceeding before the Board, and on the Parties to this Compact.

4. Jurisdiction of the Board. The Crow-Montana Compact Board shall have jurisdiction to resolve controversies over theright to the use of water as between the Parties or holders of water rights developed or authorized under the Tribal WaterRight and holders of water rights Recognized Under State Law. Such controversies shall include, but shall not be limitedto, disputes as to the meaning of this Compact.

5. Prerequisite Administrative Procedures.

a. Any holder of a water right Recognized Under State Law concerned that a new development, Change in Use, or Transferof the Tribal Water Right is inconsistent with the Compact shall first contact the Billings Regional Office of DNRC. IfDNRC and TWRD are unable to resolve the issue in a manner acceptable to the water right holder within a reasonabletime through discussion, DNRC or the water right holder may seek relief through the Compact Board. The Tribe agreesto allow DNRC reasonable access onto Tribal land or to assist DNRC in obtaining reasonable access onto the land of theTribal Water Right holder to observe the challenged new development, Change in Use, or Transfer.

b. Any Tribal Water Right holder concerned that a new development, change in use, or transfer of water by a holder ofa water right Recognized Under State Law is inconsistent with the Compact shall first contact TWRD. If TWRD andDNRC are unable to resolve the issue in a manner acceptable to the Tribal Water Right holder within a reasonable timethrough discussion, TWRD or the Tribal Water Right holder may seek relief through the Compact Board. DNRC agreesto assist TWRD in obtaining reasonable access onto the land of the holder of the water right Recognized Under State Lawto observe the challenged development, change in use, or transfer.

c. TWRD and DNRC may jointly develop supplemental procedures as necessary or appropriate. Such supplementalprocedures are pursuant to, and shall not be deemed a modification of, this Compact.

ADD. 29




6. Powers and Duties. The Board shall hold hearings upon notice in proceedings before it and shall have the power toadminister oaths, take evidence and issue subpoenas to compel attendance of witnesses or production of documents or otherevidence, and to appoint technical experts. The Tribe and the State shall enforce the Board's subpoenas in the same manner asprescribed by the laws of the Tribe and the State for enforcing a subpoena issued by the courts of each respective sovereignin a civil action. The parties to the controversy may present evidence and cross examine any witnesses. The Board shalldetermine the controversy and grant any appropriate relief, including a temporary order; provided that, the Board shall haveno power to award money damages, costs, or attorneys' fees. All decisions of the Board shall be by majority vote and inwriting. The Board shall adopt necessary rules and regulations to carry out its responsibilities within six (6) months after itsfirst meeting. All records of the Board shall be open to public inspection, except as otherwise ordered by the Board.

7. Review and Enforcement of Board Decisions.

a. Decisions by the Board shall be effective immediately, unless stayed by the Board. Unless otherwise provided byCongress, only the United States and parties to the proceedings before the Board may appeal any final decision by theBoard to a court of competent jurisdiction within thirty (30) days of such decision. The hearing on appeal shall be a trialde novo. The notice of appeal shall be filed with the Board and served personally or by registered mail upon all partiesto the proceeding before the Board.

b. Unless an appeal is filed within thirty (30) days of a final decision of the Board, as provided in Section F.7.a., of ArticleIV, any decision of the Board shall be recognized and enforced by any court of competent jurisdiction on petition of theBoard, or any party before the Board in the proceeding in which the decision was made.

c. A court of competent jurisdiction in which a timely appeal is filed pursuant to Section F.7.a., of Article IV, or in whicha petition to confirm or enforce is filed pursuant to Section F.7.b., of Article IV, may order such temporary or permanentrelief as it considers just and proper.

d. An appeal may be taken from any decision of the court in which a timely appeal is filed pursuant to Section f.7.a., ofArticle IV, or in which a petition to confirm or enforce is filed pursuant to Section F.7.b., of Article IV, in the manner andto the same extent as from orders or judgments of the court in a civil action.

e. In any appeal or petition to confirm or enforce the Board's decision, the Board shall file with the court the record of theproceedings before the Board within sixty (60) days of filing of a notice of appeal.

8. Waiver of Immunity. The Tribe and the State hereby waive their respective immunities from suit, including any defense theState shall have under the Eleventh Amendment of the Constitution of the United States, in order to permit the resolution ofdisputes under this Compact by the Crow-Montana Compact Board, and the appeal or judicial enforcement of Board decisionsas provided herein, except that such waivers of sovereign immunity by the Tribe or the State shall not extend to any actionfor money damages, costs, or attorneys' fees. The Parties agree that only Congress can waive the immunity of the UnitedStates. The participation of the United States in the proceedings of the Compact Board shall be as provided by Congress.

ARTICLE V--DISCLAIMERS AND RESERVATIONS

A. No Effect on Other Tribal Rights or Other Federal Reserved Water Rights.ADD. 30




1. Except as provided in Sections A.1.b.(2). and D.7., of Article III, the relationship between the Tribal Water Right describedherein and any rights to water of any other Indian Tribe or its members, or of the United States on behalf of such Tribe orits members shall be determined by the rule of priority.

2. Nothing in this Compact may be construed or interpreted as a precedent to establish the nature, extent, or manner ofadministration of the rights to water of any other Indian tribes or their members outside of the Crow Reservation.

3. Nothing in this Compact is otherwise intended to affect or abrogate a right or claim of an Indian Tribe other than theCrow Tribe.

4. Except as otherwise provided herein and authorized by Congress, nothing in this Compact may be construed or interpretedin any manner to establish the nature, extent, or manner of administration of the reserved rights to water of any other federalagency or of any other federal lands. Such reserved rights will be subject to the rule of priority in their use.

B. General Disclaimer. Nothing in this Compact shall be so construed or interpreted:

1. As a precedent for the litigation of reserved water rights or the interpretation or administration of future compacts betweenthe United States and the State, or the United States and any other state;

2. To preclude the acquisition or exercise of a right Recognized Under State Law to the use of water by any member of theTribe outside the Reservation by purchase of such right or by acquisition of land, or by application to the State;

3. To determine the relative rights inter sese of Persons using water under the authority of the State or the Tribe;

4. To limit in any way the rights of the Parties or any other person to litigate any issues or questions not resolved by thisCompact;

5. To authorize the taking of a water right which is vested under state or federal law;

6. To create or deny substantive rights through headings or captions used in this Compact;

7. To address or prejudge whether or how, in any interstate apportionment, the Tribe's water right shall be counted as partof the waters apportioned to the State;

8. To prohibit the Tribe, or the United States on behalf of the Tribe, from objecting in any general stream adjudication inMontana Water Court to any claims to water rights;

ADD. 31




9. To constitute a waiver of sovereign immunity by the Tribe, State, or United States, except as is expressly set forth inthis Compact;

10. Unless otherwise provided by Congress, to prevent the United States, as trustee for the Tribe or Tribal members, orthe Tribe itself, from filing an action in any court of competent jurisdiction, to prevent any party from interfering with theenjoyment of the Tribal Water Right;

11. To impair, amend, or alter rights under existing state or federal law;

12. To affect or determine the applicability of any state or federal law, including, without limitation, environmental andpublic safety laws, on activities of the Tribe or Tribal members within the Reservation or in connection with Tribal Interestsin the Ceded Strip;

13. To alter or amend any provision or to adopt or preclude any interpretation of the Yellowstone River Compact, Act ofOctober 10, 1951, ch. 629, 65 Stat. 663 (1951);

14. To alter or abridge any right reserved to the Crow Tribe of Indians under Article 4 of the May 7, 1868 Treaty of FortLaramie; or

15. To prejudice any right that Tribal members may have to secure a portion of the Tribal Water Right from the Tribe.

C. Rights Reserved. The Parties expressly reserve all rights not granted, recognized or relinquished in this Compact.

D. Obligations of United States Contingent.

1. Notwithstanding any other language in this Compact, except as authorized under other provisions of federal law, theobligations of the United States under this Compact shall be contingent on authorization by Congress.

2. The State and the Tribe recognize that this Compact has not been reviewed and approved by the United States or anyagency thereof and ratification by the Montana legislature or ratification by the Tribal Council in no manner binds or restrictsthe discretion of the United States in the negotiation of all related matters, including but not limited to, coal severance tax,Section 2 of the Crow Allotment Act (41 Stat. 751), water rights, and State and Federal contribution or cost share.

E. Expenditures of Money Contingent. The expenditure or advance of any money or the performance of any work by the UnitedStates or the Tribe pursuant to this Compact which may require appropriation of money by Congress or allotment of funds shallbe contingent on such appropriation or allotment being made.

ARTICLE VI--CONTRIBUTIONS TO SETTLEMENT

A. State Contribution to Settlement.

ADD. 32




1. The State agrees to contribute the sum of $15 million, in equal annual installments for a period of no more than fifteenyears beginning July 1, 1999, to a fund for the use and benefit of the Tribe.

2. Payment of the State's contributions for the benefit of the Tribe is contingent on the final approval of this Compact bythe Tribe and Congress, the final inclusion of the rights set forth in the Compact in decrees by the Montana Water Courtand the expiration of the time for appeal from all orders effecting such inclusion or the affirmance of the decrees or orderson appeal, the provision of releases of claims as provided in Section A.4., of Article VI, and the fulfillment of any otherconditions to the effectiveness of the Compact.

3. Until all conditions for payment are fulfilled, the State and the Tribe agree that any payments due shall be paid into aninterest-bearing escrow account, to be held without distribution of principal or interest until all conditions for payment to theTribe are satisfied, except that the State and the Tribe may agree in writing that some portion of the interest earned on thefunds in the escrow account may be disbursed to the Tribe before all conditions for payment are satisfied.

4. The Tribe agrees that the State's contribution will be dedicated to economic development and water and sewer infrastructurewithin the Crow Reservation. The Tribe further agrees that the State's contributions as set forth in Section A.1., of ArticleVI and any other agreements that may be set forth in a separate coal severance tax settlement agreement between the Stateand Tribe should be considered as fully satisfying any cost-share obligation on the part of the State for this Compact. TheTribe further agrees that the State's contributions and agreements herein are full and adequate consideration for the Tribe'sagreements as set forth in this Compact, and that the State's contributions, together with any other agreements that maybe set forth in a separate coal severance tax settlement agreement between the State and the Tribe, are full and adequateconsideration for the release of all claims by the Tribe and the United States in the civil action captioned Crow Tribe ofIndians v. State of Montana, Cause No. CV-78-110-BLG-JDS (D. Mont.). The Tribe further agrees that in consideration ofthe State's contributions and other agreements set forth in a separate coal severance tax settlement agreement, the Tribe willprovide releases of all claims, including any pleadings or proposed orders necessary to implement or otherwise give effectto the releases, in that action in a form acceptable to the Attorney General of the State.

B. Federal Legislation. The Tribe and the State agree to support federal legislation ratifying this Compact that will accomplishthe following:

1. Bighorn Lake Water Supply. The State and the Tribe agree to support federal legislation that will provide an allocation ofstorage water in Bighorn Lake, as described in Section A.1.b., of Article III and which will reallocate the water in BighornLake as set forth in Section A.1.b.(1).(b).(i)., of Article III. The priority date for the allocation shall be the date of the waterright held by the Bureau of Reclamation as decreed or to be decreed by the Montana Water Court pursuant to 85-2-234,MCA. This allocation shall be held in trust for the Tribe by the United States and will be part of the Tribal Water Right.

2. Right to Participate in Future Projects to Import Water. The Tribe shall have the right to initiate or participate in anyproject to augment the water supply in the Basins listed in Sections B., C., D. and E., of Article III, by transferring waterfrom another drainage, and to have any such augmentation project deliver any entitlement of the Tribe to water to a pointwithin the Reservation designated by the Tribe.

ADD. 33




3. Federal Court Jurisdiction. That the federal courts shall have jurisdiction to enforce the provisions of this Compact and tohear appeals from and enforce decisions of the Compact Board in accordance with Section F. 7., of Article IV.

C. Federal Contributions to Settlement. Federal contributions to settlement shall be as provided by Congress.

ARTICLE VII--FINALITY, SETTLEMENT OF CLAIMS,EFFECTIVENESS OF COMPACT, AND WAIVER OF CLAIMS

A. Ratification and Effectiveness of Compact.

1. This Compact shall become Effective on the date it is ratified by the Tribe, by the State, and by the Congress of the UnitedStates, whichever date is latest. Upon ratification of this Compact by the Tribe and by the State, whichever is later, the termsof this Compact may not be altered, voided, or modified in any respect without the consent of both the Tribe and the State.Once ratified by Congress, the Tribe, and the State, the Compact may not be modified without the consent of the Tribe, theState, and the United States.

2. Notwithstanding any other provision in this Compact, the Tribe reserves the right to withdraw as a Party to this Compact:

a. If Congress has not ratified this Compact within four (4) years from the date the Compact is ratified by the State;

b. If appropriations are not authorized by Congress within four (4) years of the date the Compact is ratified by the Tribe;

c. If the Tribe and the United States do not reach agreement on the federal contribution to settlement;

d. If appropriations are not made in the manner contemplated by the federal legislation ratifying the Compact; or

e. If the Tribe and the United States do not reach agreement on settlement of issues regarding Section 2 of the CrowAllotment Act (41 Stat.751).

3. The Tribe may exercise its right to withdraw by sending to the Governor of the State of Montana and to the Secretary ofthe Interior by certified mail a resolution of the Crow Tribal Council stating the Tribe's intent to withdraw and specifyinga withdrawal date not sooner than thirty (30) days from the date of the resolution. On the date designated in the resolutionfor Tribal withdrawal, this Compact shall become null and void without further action by any Party, and the Parties agreeto resume negotiation in good faith for quantification of the water rights of the Crow Tribe and entry of a decree in a courtof competent jurisdiction.

4. Notwithstanding any other provision in this Compact, the State reserves the right to withdraw as a Party to this Compact:

a. If the Tribe and Congress have not ratified this Compact within five (5) years from the date the Compact is ratifiedby the State;

ADD. 34




b. If Congress requires a state contribution to settlement that exceeds the contributions described in Section A., of ArticleVI;

c. If Congress resolves issues under Section 2 of the Crow Allotment Act (41 Stat. 751) in a manner Adversely Affectingwater rights Recognized Under State Law;

d. If a streamflow and lake level management plan pursuant to Section A.7., of Article III is not agreed to within one (1)year after this Compact has been ratified by the Montana legislature or any extended deadline agreed to by the State, or iffederal legislation is inconsistent with the streamflow and lake level management plan; or

e. If the Department of Natural Resources and Conservation does not approve the list of current uses of the Tribal WaterRight pursuant to Section E.2., of Article IV.

5. The State may exercise its right to withdraw by sending to the Crow Tribal Chairman and to the Secretary of the Interiora letter delivered by certified mail from the Governor of the State of Montana stating the State's intent to withdraw andspecifying a withdrawal date not sooner than thirty (30) days from the date of the letter. On the date designated in the letterfor State withdrawal, this Compact shall become null and void without further action by any Party, and the Parties agree toresume negotiation in good faith for quantification of the water rights of the Crow Tribe and entry of a decree in a courtof competent jurisdiction.

6. Notwithstanding any other provision in this Compact, the Department of the Interior reserves the right to refuse to supportfederal legislation ratifying this Compact.

7. The Parties understand and accept that federal financial contributions to the Compact may not be budgeted until Octoberof the year following the year of enactment of the Compact.

B. Incorporation Into Decrees and Disposition of Federal Suit.

1. The Tribe, the State, and the United States agree to defend the provisions and purposes of this Compact including thequantification set forth in Article III, from all challenges and attacks in all proceedings pursuant to this Section B., of ArticleVII.

2. Within one hundred eighty (180) days of the date this Compact is ratified by the Crow Tribal Council, the State of Montana,and Congress, whichever is latest, the Tribe, the State, or the United States shall file, in the general stream adjudicationinitiated by the State of Montana, pursuant to the provisions of 85-2-702(3), MCA, a motion for entry of the proposed decreeset forth in Appendix 1 as the decree of the water rights held by the United States in trust for the Crow Tribe. If the MontanaWater Court does not approve the proposed decree submitted with the motion within three years following the filing of themotion, the Compact shall be voidable by agreement of the State and the Tribe. If the Montana Water Court approves theproposed decree within three years, but the decree is subsequently set aside by the Montana Water Court or on appeal, theCompact shall be voidable by agreement of the State and the Tribe. Any effect of the failure of approval or setting aside ofthe decree on the approval, ratification, and confirmation by the United States shall be as provided by Congress. The Parties

ADD. 35




understand and agree that the submission of this Compact to a state court or courts, as provided for in this Compact, is solelyto comply with the provisions of 85-2-702(3), MCA, and does not expand the jurisdiction of the state court or expand inany manner the waiver of sovereign immunity of the United States in the McCarran Amendment, 43 U.S.C. 666, or otherprovision of federal law.

3. Consistent with 3-7-224, MCA, setting forth the jurisdiction of the chief water judge, for the purposes of 85-2-702(3),MCA, the review by the Montana Water Court shall be limited to Article III, and Appendix 1, and may extend to othersections of the Compact only to the extent that they relate to the determination of existing water rights. The final decreeshall consist of Article III as displayed in Appendix 1, and such other information as may be required by 85-2-234, MCA.Nevertheless, pursuant to 85-2-702(3), MCA, the terms of the entire Compact must be included in the preliminary decreewithout alteration for the purpose of notice.

4. Upon the issuance of a final decree by the Montana Water Court, or its successor, and the completion of any direct appealstherefrom, or upon the expiration of the time for filing any such appeal, the United States, the Tribe, and the State shallexecute and file joint motions pursuant to Rule 41(a), Fed. R. Civ. P., to dismiss the Tribe's claims, and any claims made bythe United States as trustee for the Tribe, in U.S. v. Big Horn Low Line Canal Company, et al., No. CIV-75-34-BLG (filedApril 17, 1975) (hereinafter referred to as “Low Line Canal”) and such claims may only be refiled if the Tribe exercisesits option to withdraw as a Party to the Compact pursuant to Section A.3., of Article VII. This Compact shall be filed as aconsent decree in Low Line Canal only if, prior to the dismissal of Low Line Canal as provided in Section B., of Article VII,it is finally determined in a judgment binding upon the State of Montana that the state courts lack jurisdiction over, or thatthe state court proceedings are inadequate to adjudicate, some or all of the water rights asserted in Low Line Canal.

C. Settlement of Water Right Claims. The water rights and other rights confirmed to the Tribe in this Compact are in full andfinal satisfaction of the water right claims of the Tribe and the United States on behalf of the Tribe and its members, includingfederal reserved water rights claims based on Winters v. United States, 207 U.S. 564 (1908). In consideration of the rightsconfirmed to the Tribe in this Compact, and of performance by the State of Montana and the United States of all actions requiredby this Compact, including entry of a final order issuing the decree of the reserved water rights of the Tribe held in trust bythe United States as quantified in the Compact and displayed in Appendix 1, the Tribe and the United States as trustee for theTribe and Tribal members hereby waive, release, and relinquish any and all claims to water rights or to the use of water withinthe State of Montana existing on the date this Compact is ratified by the State, the Tribe, and Congress and conditional upona final decree, whichever date is later.

D. Binding Effect. After the Effective Date of this Compact, its terms shall be binding:

1. Upon the State and any person or entity of any nature whatsoever using, claiming or in any manner asserting any rightunder the authority of the State to the use of water in the State of Montana; provided that, the validity of consent, ratification,or authorization by the State is to be determined by Montana law;

2. Upon the Tribe, Tribal members, and any person or entity of any nature whatsoever using, claiming or in any mannerasserting any right to the use of the Tribe's water right, or any right arising under any doctrine of reserved or aboriginal waterrights for the Tribe or a Tribal member, or any right arising under tribal law; provided that, the validity of consent, ratificationor authorization by the Tribe is to be determined by tribal law; and

ADD. 36




3. Upon the United States and any person or entity of any nature whatsoever using, claiming or in any manner assertingany right under the authority of the United States to the use of water in the State of Montana; provided that, the validity ofconsent, ratification or authorization by the United States is to be determined by federal law.

E. Waiver of Claims or Objections.

1. After the Effective Date of this Compact, the Tribe, any individual claiming a right to use water based on or derived fromthe Tribe, and the United States on behalf of the Tribe or a Tribal member, shall be prohibited from objecting to, or bringinga claim against, the claim or holder of a right to use water based on the laws of the State of Montana, and any carriage,storage, or delivery facilities and rights of way associated therewith, based on the assertion that such right is invalid because85-2-301(4), MCA, is invalid as applied to such right, or that such right is inconsistent with or otherwise impairs any rightreserved by the Tribe under Article 4 of the May 7, 1868 Treaty of Fort Laramie. If and to the extent necessary to effectuatethe intent of this paragraph the Tribe, any individual claiming a right to use water based on or derived from the Tribe, andthe United States on behalf of the Tribe shall be deemed to have waived and relinquished any claims or objections they mayhave against a holder of a right to use water based on the laws of the State of Montana, and any carriage, storage, or deliveryfacilities and rights of way associated therewith, based on the aforementioned law and Treaty.

2. Waiver of claims by the Tribe against the United States shall be as provided by Congress.

ARTICLE VIII--LEGISLATION

The State and Tribe agree to seek enactment of any legislation necessary to effectuate the provisions and purposes of thisCompact, and to defend the provisions and purposes of this Compact from all challenges and attacks; provided that, no provisionof the Compact shall be modified as to substance except as may be provided herein.

IN WITNESS WHEREOF the representatives of the State of Montana, the Crow Tribe, and the United States have signed thisCompact on the ... day of..., 19....

CreditsEnacted by Sp. Sess. Laws June 1999, ch. 3, § 1. Amended by Laws 2009, ch. 44, § 1.

Notes of Decisions (1)

MCA 85-20-901, MT ST 85-20-901Current through the 2015 session. Statutory changes are subject to classification and revision by the Code Commissioner. CourtRules in the Code are current with amendments received through October 1, 2015.

End of Document © 2016 Thomson Reuters. No claim to original U.S. Government Works.

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PUBLIC LAW 111-291-DEC. 8, 2010

TITLE IV-CROW TRIBE WATER RIGHTS Crow TribeWater RightsSETTLEMENT Settlement Act

of 2010.Montana.

SEC. 401. SHORT TITLE. 31 USC 1101This title may be cited as the "Crow Tribe Water Rights Settle- note.

ment Act of 2010".SEC. 402. PURPOSES.

The purposes of this title are-(1) to achieve a fair, equitable, and final settlement of

claims to water rights in the State of Montana for-(A) the Crow Tribe; and(B) the United States for the benefit of the Tribe and

allottees;(2) to authorize, ratify, and confirm the Crow Tribe-Mon-

tana Water Rights Compact entered into by the Tribe andthe State of Montana on June 22, 1999;

(3) to authorize and direct the Secretary of the Interior-(A) to execute the Crow Tribe-Montana Water Rights

Compact; and(B) to take any other action necessary to carry out

the Compact in accordance with this title; and(4) to ensure the availability of funds necessary for the

implementation of the Compact and this title.SEC. 403. DEFINITIONS.

In this title:(1) ALLOTTEE.-The term "allottee" means any individual

who holds a beneficial real property interest in an allotmentof Indian land that is-

(A) located within the Reservation or the ceded strip;and

(B) held in trust by the United States.(2) CEDED STRIP.-The term "ceded strip" means the area

identified as the ceded strip on the map included in appendix5 of the Compact.

(3) CIP OM&R.-The term "CIP OM&R" means-(A) any recurring or ongoing activity associated with

the day-to-day operation of the Crow Irrigation Project;(B) any activity relating to scheduled or unscheduled

maintenance of the Crow Irrigation Project; and(C) any activity relating to replacement of a feature

of the Crow Irrigation Project.(4) COMPACT.-The term "Compact" means the water rights

compact between the Tribe and the State of Montana containedin section 85-20-901 of the Montana Code Annotated (2009)(including any exhibit, part, or amendment to the Compact).

(5) CROW IRRIGATION PROJECT.-(A) IN GENERAL.-The term "Crow Irrigation Project"

means the irrigation project-(i) authorized by section 31 of the Act of March

3, 1891 (26 Stat. 1040);(ii) managed by the Secretary (acting through the

Bureau of Indian Affairs); and(iii) consisting of the project units of-

(I) Agency;

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(II) Bighorn;(III) Forty Mile;(IV) Lodge Grass #1;(V) Lodge Grass #2;(VI) Pryor;(VII) Reno;(VIII) Soap Creek; and(IX) Upper Little Horn.

(B) INCLUSION.-The term "Crow Irrigation Project"includes land held in trust by the United States for theTribe and the allottees in the Bozeman Trail and TwoLeggins irrigation districts.(6) ENFORCEABILITY DATE.-The term "enforceability date"

means the date on which the Secretary publishes in the FederalRegister the statement of findings described in section 410(e).

(7) FINAL.-The term "final" with reference to approvalof the decree described in section 410(e)(1)(A), means-

(A) completion of any direct appeal to the MontanaSupreme Court of a decree by the Montana Water Courtpursuant to section 85-2-235 of the Montana Code Anno-tated (2009), including the expiration of time for filingof any such appeal; or

(B) completion of any appeal to the appropriate UnitedStates Court of Appeals, including the expiration of timein which a petition for certiorari may be filed in the UnitedStates Supreme Court, denial of such petition, or issuanceof a final judgment of the United States Supreme Court,whichever occurs last.(8) FUND.-The term "Fund" means the Crow Settlement

Fund established by section 411.(9) INDIAN TRIBE.-The term "Indian tribe" has the meaning

given the term in section 4 of the Indian Self-Determinationand Education Assistance Act (25 U.S.C. 450b).

(10) JOINT STIPULATION OF SETTLEMENT.-The term "jointstipulation of settlement" means the joint stipulation of settle-ment relating to the civil action styled Crow Tribe of Indiansv. Norton, No. 02-284 (D.D.C. 2006).

(11) MR&I SYSTEM.-(A) IN GENERAL.-The term "MR&I System" means

the municipal, rural, and industrial water system of theReservation, generally described in the document entitled"Crow Indian Reservation Municipal, Rural and IndustrialWater System Engineering Report" prepared by DOWLHKM, and dated July 2008 and updated in a status reportprepared by DOWL HKM dated December 2009.

(B) INCLUSIONS.-The term "MR&I System" includes-(i) the raw water intake, water treatment plant,

pipelines, storage tanks, pumping stations, pressure-reducing valves, electrical transmission facilities, andother items (including real property and easementsnecessary to deliver potable water to the Reservation)appurtenant to the system described in subparagraph(A); and

(ii) in descending order of construction priority-(I) the Bighorn River Valley Subsystem;(II) the Little Bighorn River Valley Subsystem;

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(III) Pryor Extension.(12) MR&I SYSTEM OM&R.-The term "MR&I System

OM&R" means-(A) any recurring or ongoing activity associated with

the day-to-day operation of the MR&I System;(B) any activity relating to scheduled or unscheduled

maintenance of the MR&I System; and(C) any activity relating to replacement of project fea-

tures of the MR&I System.(13) RESERVATION.-The term "Reservation" means the

area identified as the Reservation on the map in appendix4 of the Compact.

(14) SECRETARY.-The term "Secretary" means the Sec-retary of the Interior.

(15) TRIBAL COMPACT ADMINISTRATION.-The term "TribalCompact Administration" means any activity relating to-

(A) the development or enactment by the Tribe of thetribal water code;

(B) establishment by the Tribe of a water resourcesdepartment; and

(C) the operation by the Tribe of that water resourcesdepartment (or a successor agency) during the 10-yearperiod beginning on the date of establishment of the depart-ment.(16) TRIBAL WATER CODE.-The term "tribal water code"

means a water code adopted by the Tribe in accordance withsection 407(f).

(17) TRIBAL WATER RIGHTS.-The term "tribal water rights"means-

(A) the water rights of the Tribe described in articleIII of the Compact; and

(B) the water rights provided to the Tribe under section408.(18) TRIBE.-The term "Tribe" means the Crow Tribe of

Indians of the State of Montana on behalf of itself and itsmembers (but not its members in their capacities as allottees).

SEC. 404. RATIFICATION OF COMPACT.

(a) RATIFICATION OF COMPACT.-(1) IN GENERAL.-Except as modified by this title, and

to the extent the Compact does not conflict with this title,the Compact is authorized, ratified, and confirmed.

(2) AMENDMENTS TO COMPACT.-If amendments areexecuted to make the Compact consistent with this title, thoseamendments are also authorized, ratified, and confirmed tothe extent such amendments are consistent with this title.(b) EXECUTION OF COMPACT.-

(1) IN GENERAL.-To the extent that the Compact doesnot conflict with this title, the Secretary is directed to andshall promptly execute the Compact, including all exhibits toor parts of the Compact requiring the signature of the Sec-retary.

(2) MODIFICATIONS.-Nothing in this title precludes theSecretary from approving modifications to appendices orexhibits to the Compact not inconsistent with this title, to

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the extent such modifications do not otherwise require Congres-sional approval pursuant to section 2116 of the Revised Statutes(25 U.S.C. 177) or other applicable Federal law.(c) ENVIRONMENTAL COMPLIANCE.-

(1) IN GENERAL.-In implementing the Compact, the Sec-retary shall promptly comply with all applicable aspects ofthe National Environmental Policy Act of 1969 (42 U.S.C. 4321et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531et seq.), and all other applicable environmental Acts and regula-tions.

(2) ExECUTION OF THE COMPACT.-(A) IN GENERAL.-Execution of the Compact by the

Secretary under this section shall not constitute a majorFederal action under the National Environmental PolicyAct of 1969 (42 U.S.C. 4321 et seq.).

(B) COMPLIANCE.-The Secretary shall carry out allFederal compliance activities necessary to implement theCompact.

SEC. 405. REHABILITATION AND IMPROVEMENT OF CROW IRRIGATIONPROJECT.

(a) IN GENERAL.-Notwithstanding any other provision of law,and without altering applicable law (including regulations) underwhich the Bureau of Indian Affairs collects assessments and carriesout CIP OM&R, other than the rehabilitation and improvementcarried out under this section, the Secretary, acting through theCommissioner of Reclamation, shall carry out such activities asare necessary to rehabilitate and improve the water diversion anddelivery features of the Crow Irrigation Project, in accordance withan agreement to be negotiated between the Secretary and theTribe.

(b) LEAD AGENCY.-The Bureau of Reclamation shall serveas the lead agency with respect to any activity to rehabilitateor improve the water diversion or delivery features of the CrowIrrigation Project.

(C) SCOPE.-Review. (1) IN GENERAL.-The scope of the rehabilitation and

improvement under this section shall be as generally describedin the document entitled "Engineering Evaluation of ExistingConditions, Crow Agency Rehabilitation Study" prepared byDOWL HKM, and dated August 2007 and updated in a statusreport dated December 2009 by DOWL HKM, on the conditionthat prior to beginning construction activities, the Secretaryshall review the design of the proposed rehabilitation orimprovement and perform value engineering analyses.

(2) NEGOTIATION WITH TRIBE.-On the basis of the reviewdescribed in paragraph (1), the Secretary shall negotiate withthe Tribe appropriate changes to the final design so that thefinal design meets applicable industry standards, as well aschanges, if any, that would improve the cost-effectiveness ofthe delivery of irrigation water and take into considerationthe equitable distribution of water to allottees.(d) NONREIMBURSABILITY OF COSTS.-All costs incurred by the

Secretary in carrying out this section shall be nonreimbursable.(e) FuNDING.-The total amount of obligations incurred by the

Secretary in carrying out this section shall not exceed $131,843,000,except that the total amount of $131,843,000 shall be increased

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PUBLIC LAW 111-291-DEC. 8, 2010

or decreased, as appropriate, based on ordinary fluctuations fromMay 1, 2008, in construction cost indices applicable to the typesof construction involved in the rehabilitation and improvement.

(f) TRIBAL IMPLEMENTATION AGREEMENT.-

(1) IN GENERAL.-At the request of the Tribe, in accordancewith applicable Federal law, the Secretary shall enter into1 or more agreements with the Tribe to implement the provi-sions of this section by which the Tribe shall plan, design,and construct any or all of the rehabilitation and improvementrequired by this section.

(2) OVERSIGHT COSTS.-The Bureau of Reclamation andthe Tribe shall negotiate the cost of any oversight activitiescarried out by the Bureau of Reclamation for each agreementunder this section, provided that the total cost for that oversightshall not exceed 4 percent of the total project costs.(g) ACQUISITION OF LAND.-

(1) TRIBAL EASEMENTS AND RIGHTS-OF-WAY.-

(A) IN GENERAL.-Upon request, and in partial consid-eration for the funding provided under section 41 4 (a), theTribe shall consent to the grant of such easements andrights-of-way over tribal land as may be necessary forthe rehabilitation and improvement of the Crow IrrigationProject authorized by this section at no cost to the UnitedStates.

(B) JURISDICTION.-The Tribe shall retain criminal andcivil jurisdiction over any lands that were subject to tribaljurisdiction prior to the granting of an easement or right-of-way in connection with the rehabilitation and improve-ment of the Crow Irrigation Project.(2) USER EASEMENTS AND RIGHTS-OF-WAY.-In partial

consideration of the rehabilitation and improvement of the CrowIrrigation Project authorized by this section and as a conditionof continued service from the Crow Irrigation Project afterthe enforceability date, any water user of the Crow IrrigationProject shall consent to the grant of such easements and rights-of-way as may be necessary for the rehabilitation and improve-ments authorized under this section at no cost to the Secretary.

(3) LAND ACQUIRED BY THE UNITED STATES.-Land acquiredby the United States in connection with rehabilitation andimprovement of the Crow Irrigation Project authorized by thissection shall be held in trust by the United States on behalfof the Tribe as part of the Reservation of the Tribe.(h) PROJECT MANAGEMENT COMMITTEE.-The Secretary shall Establishment.

facilitate the formation of a project management committee com-posed of representatives from the Bureau of Reclamation, theBureau of Indian Affairs, and the Tribe-

(1) to review cost factors and budgets for construction,operation, and maintenance activities relating to the CrowIrrigation Project;

(2) to improve management of inherently governmentalactivities through enhanced communication; and

(3) to seek additional ways to reduce overall costs forthe rehabilitation and improvement of the Crow IrrigationProject.

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PUBLIC LAW 111-291-DEC. 8, 2010

SEC. 406. DESIGN AND CONSTRUCTION OF MR&I SYSTEM.

(a) IN GENERAL.-The Secretary, acting through the Commis-sioner of Reclamation, shall plan, design, and construct the waterdiversion and delivery features of the MR&I System, in accordancewith 1 or more agreements between the Secretary and the Tribe.

(b) LEAD AGENCY.-The Bureau of Reclamation shall serveas the lead agency with respect to any activity to design andconstruct the water diversion and delivery features of the MR&ISystem.

(C) SCOPE.-Review. (1) IN GENERAL.-The scope of the design and construction

under this section shall be as generally described in the docu-ment entitled "Crow Indian Reservation Municipal, Rural andIndustrial Water System Engineering Report" prepared byDOWL HKM, and dated July 2008 and updated in a statusreport dated December 2009 by DOWL HKM, on the conditionthat prior to beginning construction activities, the Secretaryshall review the design of the proposed MR&I System andperform value engineering analyses.

(2) NEGOTIATION WITH TRIBE.-On the basis of the reviewdescribed in paragraph (1), the Secretary shall negotiate withthe Tribe appropriate changes to the final design so that thefinal design meets applicable industry standards, as well aschanges, if any, that would improve the cost-effectiveness ofthe delivery of MR&I System water and take into considerationthe equitable distribution of water to allottees.(d) NONREIMBURSABILITY OF COSTS.-All costs incurred by the

Secretary in carrying out this section shall be nonreimbursable.(e) FuNDING.-The total amount of obligations incurred by the

Secretary in carrying out this section shall not exceed $246,381,000,except that the total amount of $246,381,000 shall be increasedor decreased, as appropriate, based on ordinary fluctuations fromMay 1, 2008, in construction cost indices applicable to the typesof construction involved in the design and construction of the MR&ISystem.

(f) TRIBAL IMPLEMENTATION AGREEMENT.-(1) IN GENERAL.-At the request of the Tribe, in accordance

with applicable Federal law, the Secretary shall enter into1 or more agreements with the Tribe to implement the provi-sions of this section by which the Tribe shall plan, design,and construct any or all of the rehabilitation and improvementrequired by this section.

(2) OVERSIGHT COSTS.-The Bureau of Reclamation andthe Tribe shall negotiate the cost of any oversight activitiescarried out by the Bureau of Reclamation for each agreementunder this section, provided that the total cost for that oversightshall not exceed 4 percent of the total project costs.(g) ACQUISITION OF LAND.-

(1) TRIBAL EASEMENTS AND RIGHTS-OF-WAY.-(A) IN GENERAL-Upon request, and in partial consid-

eration for the funding provided under section 414(b), theTribe shall consent to the grant of such easements andrights-of-way over tribal land as may be necessary forthe construction of the MR&I System authorized by thissection at no cost to the United States.

(B) JURISDICTION.-The Tribe shall retain criminal andcivil jurisdiction over any lands that were subject to tribal

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PUBLIC LAW 111-291-DEC. 8, 2010

jurisdiction prior to the granting of an easement or right-of-way in connection with the construction of the MR&ISystem.(2) LAND ACQUIRED BY THE UNITED STATES.-Land acquired

by the United States in connection with the construction ofthe MR&I System authorized by this section shall be heldin trust by the United States on behalf of the Tribe as partof the Reservation of the Tribe.(h) CONVEYANCE OF TITLE TO MR&I SYSTEM FACILITIES.-

(1) IN GENERAL.-The Secretary shall convey title to eachMR&I System facility or section of a MR&I System facilityauthorized under subsection (a) to the Tribe after completionof construction of a MR&I System facility or a section of aMR&I System facility that is operating and delivering water.

(2) LIABILITY.-(A) IN GENERAL.-Effective on the date of the convey- Effective date.

ance authorized by this subsection, the United States shallnot be held liable by any court for damages of any kindarising out of any act, omission, or occurrence relatingto the land, buildings, or facilities conveyed under thissubsection, other than damages caused by acts of negligencecommitted by the United States, or by employees or agentsof the United States, prior to the date of conveyance.

(B) TORT CLAIMS.-Nothing in this section increasesthe liability of the United States beyond the liability pro-vided in chapter 171 of title 28, United States Code (com-monly known as the "Federal Tort Claims Act").(3) NOTICE OF PROPOSED CONVEYANCE.-Not later than 45 Deadline.

days before the date of a proposed conveyance of title to anyMR&I System facility, the Secretary shall submit to the Com-mittee on Natural Resources of the House of Representativesand to the Committee on Energy and Natural Resources ofthe Senate notice of the conveyance of each such MR&I Systemfacility or section of a MR&I System facility.

(4) MR&I SYSTEM OM&R OBLIGATION OF THE FEDERALGOVERNMENT AFTER CONVEYANCE.-The Federal Governmentshall have no obligation to pay for the operation, maintenance,or replacement costs of the MR&I System beginning on thedate on which-

(A) title to any MR&I System facility or section ofa MR&I System facility under this subsection is conveyedto the Tribe; and

(B) the amounts required to be deposited in the MR&ISystem OM&R Account pursuant to section 411 have beendeposited in that account.

(i) AUTHORITY OF TRIBE.-Upon transfer of title to the MR&ISystem or any section of a MR&I System facility to the Tribein accordance with subsection (h), the Tribe is authorized to collectwater use charges from customers of the MR&I System to cover-

(1) MR&I System OM&R costs; and(2) any other costs relating to the construction and oper-

ation of the MR&I System.(j) ALIENATION AND TAxATION.-Conveyance of title to the Tribe

pursuant to subsection (h) does not waive or alter any applicableFederal law prohibiting alienation or taxation of the MR&I Systemor the underlying Reservation land.

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PUBLIC LAW 111-291-DEC. 8, 2010

Establishment.

Consultation.

(k) TECHNICAL ASSISTANCE.-The Secretary shall provide tech-nical assistance to prepare the Tribe for operation of the MR&ISystem, including operation and management training.

(1) PROJECT MANAGEMENT COMMITTEE.-The Secretary shallfacilitate the formation of a project management committee com-posed of representatives from the Bureau of Reclamation, theBureau of Indian Affairs, and the Tribe-

(1) to review cost factors and budgets for construction,operation and maintenance activities for the MR&I System;

(2) to improve management of inherently governmentalactivities through enhanced communication; and

(3) to seek additional ways to reduce overall costs forthe MR&I System.(m) NON-FEDERAL CONTRIBUTION.-

(1) IN GENERAL.-Prior to completion of the final designof the MR&I System required by subsection (c), the Secretaryshall consult with the Tribe, the State of Montana, and otheraffected non-Federal parties to discuss the possibility ofreceiving non-Federal contributions to the cost of the MR&ISystem.

(2) NEGOTIATIONS.-If, based on the extent to which non-Federal parties are expected to use the MR&I System, a non-Federal contribution to the MR&I System is determined bythe parties described in paragraph (1) to be appropriate, theSecretary shall initiate negotiations for an agreement on themeans by which such contributions may be provided.

SEC. 407. TRIBAL WATER RIGHTS.

(a) INTENT OF CONGRESS.-It is the intent of Congress to pro-vide to each allottee benefits that are equivalent to or exceedthe benefits allottees possess as of the date of enactment of thisAct, taking into consideration-

(1) the potential risks, cost, and time delay associatedwith litigation that would be resolved by the Compact andthis title;

(2) the availability of funding under this title and fromother sources;

(3) the availability of water from the tribal water rights;and

(4) the applicability of section 7 of the Act of February8, 1887 (25 U.S.C. 381) and this title to protect the interestsof allottees.(b) CONFIRMATION OF TRIBAL WATER RIGHTS.-

(1) IN GENERAL.-The tribal water rights are ratified, con-firmed, and declared to be valid.

(2) USE.-Use of the tribal water rights shall be subjectto the terms and conditions established by the Compact.(c) HOLDING IN TRUST.-The tribal water rights-

(1) shall be held in trust by the United States for theuse and benefit of the Tribe and the allottees in accordancewith this section; and

(2) shall not be subject to forfeiture or abandonment.(d) ALLOTTEES.-

(1) APPLICABILITY OF ACT OF FEBRUARY 8, 1887.-The provi-sions of section 7 of the Act of February 8, 1887 (25 U.S.C.381), relating to the use of water for irrigation purposes shallapply to the tribal water rights.

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PUBLIC LAW 111-291-DEC. 8, 2010

(2) ENTITLEMENT TO WATER.-Any entitlement to waterof an allottee under Federal law shall be satisfied from thetribal water rights.

(3) ALLOCATIONS.-Allottees shall be entitled to a just andequitable allocation of water for irrigation purposes.

(4) EXHAUSTION OF REMEDIES.-Before asserting any claimagainst the United States under section 7 of the Act of February8, 1887 (25 U.S.C. 381), or any other applicable law, an allotteeshall exhaust remedies available under the tribal water codeor other applicable tribal law.

(5) CLAIM.-Following exhaustion of remedies availableunder the tribal water code or other applicable tribal law,an allottee may seek relief under section 7 of the Act of Feb-ruary 8, 1887 (25 U.S.C. 381), or other applicable law.

(6) AUTHORITY.-The Secretary shall have the authorityto protect the rights of allottees as specified in this section.(e) AUTHORITY OF TRIBE.-

(1) IN GENERAL.-Except as provided in paragraph (2), theTribe shall have authority to allocate, distribute, and leasethe tribal water rights-

(A) in accordance with the Compact; and(B) subject to approval of the Secretary of the tribal

water code under subsection (f)(3)(B).(2) LEASES BY ALLOTTES.-Notwithstanding paragraph (1),

an allottee may lease any interesf in land held by the allottee,together with any water right determined to be appurtenantto the interest in land.(f) TRIBAL WATER CODE.-

(1) IN GENERAL.-Notwithstanding the time period set forth Deadline.in article IV(A)(2)(b) of the Compact, not later than 3 yearsafter the date on which the Tribe ratifies the Compact asset forth in section 410(e)(1)(E), the Tribe shall enact a tribalwater code, that provides for-

(A) the management, regulation, and governance ofall uses of the tribal water rights in accordance with theCompact; and

(B) establishment by the Tribe of conditions, permitrequirements, and other limitations relating to the storage,recovery, and use of the tribal water rights in accordancewith the Compact.(2) INCLUSIONS.-Subject to the approval of the Secretary,

the tribal water code shall provide that-(A) tribal allocations of water to allottees shall be

satisfied with water from the tribal water rights;(B) charges for delivery of water for irrigation purposes

for allottees shall be assessed on a just and equitablebasis;

(C) there is a process by which an allottee may requestthat the Tribe provide water for irrigation use in accordancewith this title;

(D) there is a due process system for the considerationand determination by the Tribe of any request by anallottee, or any successor in interest to an allottee, foran allocation of such water for irrigation purposes onallotted land, including a process for-

(i) appeal and adjudication of any denied or dis-puted distribution of water; and

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(ii) resolution of any contested administrative deci-sion; and(E) there is a requirement that any allottee with a

claim relating to the enforcement of rights of the allotteeunder the tribal water code or relating to the amountof water allocated to land of the allottee must first exhaustremedies available to the allottee under tribal law andthe tribal water code before initiating an action againstthe United States or petitioning the Secretary pursuantto subsection (d)(6).(3) ACTION BY SECRETARY.-

(A) IN GENERAL.-The Secretary shall administer thetribal water rights until the tribal water code is enactedin accordance with paragraph (1) and those provisionsrequiring approval pursuant to paragraph (2).

(B) APPROVAL.-The tribal water code shall not bevalid unless-

(i) the provisions of the tribal water code requiredby paragraph (2) are approved by the Secretary; and

(ii) each amendment to the tribal water code thataffects a right of an allottee is approved by the Sec-retary.(C) APPROVAL PERIOD.-The Secretary shall approve

or disapprove the tribal water code within a reasonableperiod of time after the date on which the Tribe submitsit to the Secretary.

(g) EFFECT.-Except as otherwise specifically provided in thissection, nothing in this title-

(1) authorizes any action by an allottee against any indi-vidual or entity, or against the Tribe, under Federal, State,tribal, or local law; or

(2) alters or affects the status of any action pursuant tosection 1491(a) of title 28, United States Code.

SEC. 408. STORAGE ALLOCATION FROM BIGHORN LAKE.

(a) STORAGE ALLOCATION TO TRIBE.-(1) IN GENERAL-As described in and subject to article

III(A)(1)(b) of the Compact, the Secretary shall allocate to theTribe 300,000 acre-feet per year of water stored in BighornLake, Yellowtail Unit, Lower Bighorn Division, Pick Sloan Mis-souri Basin Program, Montana, under a water right held bythe United States and managed by the Bureau of Reclamation,as measured at the outlet works of Yellowtail Dam, including-

(A) not more than 150,000 acre-feet per year of theallocation, which may be used in addition to the naturalflow right described in article III(A)(1)(a) of the Compact;and

(B) 150,000 acre-feet per year of the allocation, whichmay be used only as supplemental water for the naturalflow right described in article III(A)(1)(a) of the Compactfor use in times of natural flow shortage.(2) TREATMENT.-

(A) IN GENERAL.-The allocation under paragraph (1)shall be considered to be part of the tribal water rights.

(B) PRIORITY DATE.-The priority date of the allocationunder paragraph (1) shall be the priority date of the waterright held by the Bureau of Reclamation.

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(C) ADMINISTRATION.-(i) IN GENERAL.-The Tribe shall administer the

water allocated under paragraph (1) in accordance withthe Compact.

(ii) TEMPORARY TRANSFER.-In accordance withsubsection (c), the Tribe may temporarily transfer byservice contract, lease, exchange, or other agreement,not more than 50,000 acre-feet of water allocated underparagraph (1)(A) off the Reservation, subject to theapproval of the Secretary and the requirements of theCompact.

(b) ALLOCATION AGREEMENT.-(1) IN GENERAL.-As a condition of receiving an allocation

under this section, the Tribe shall enter into an allocationagreement with the Secretary to establish the terms and condi-tions of the allocation, in accordance with the terms and condi-tions of the Compact and this title.

(2) INCLUSIONS.-The allocation agreement under para-graph (1) shall include, among other things, a provision that-

(A) the agreement is without limit as to term;(B) the Tribe, and not the United States, shall be

entitled to all consideration due to the Tribe under anylease, contract, or agreement the Tribe may enter intopursuant to the authority in subsection (c);

(C) the United States shall have no trust obligationor other obligation to monitor, administer, or account for-

(i) any funds received by the Tribe as considerationunder any lease, contract, or agreement the Tribe mayenter into pursuant to the authority in subsection (c);or

(ii) the expenditure of such funds;(D) if the facilities at Yellowtail Dam are significantly

reduced or are anticipated to be significantly reduced foran extended period of time, the Tribe shall have the samestorage rights as other storage contractors with respectto the allocation under this section;

(E) the costs associated with the construction of thestorage facilities at Yellowtail Dam allocable to the Tribe-

(i) shall be nonreimbursable; and(ii) shall be excluded from any repayment obliga-

tion of the Tribe;(F) no water service capital charges shall be due or

payable for any water allocated to the Tribe pursuant tothis title and the allocation agreement, regardless ofwhether that water is delivered for use by the Tribe oris delivered under any leases, contracts, or agreementsthe Tribe may enter into pursuant to the authority insubsection (c);

(G) the Tribe shall not be required to make paymentsto the United States for any water allocated to the Tribepursuant to this title and the allocation agreement exceptfor each acre-foot of stored water leased or sold for indus-trial purposes; and

(H) for each acre-foot of stored water leased or soldby the Tribe for industrial purposes-

(i) the Tribe shall pay annually to the United Payment.States an amount to cover the proportionate share

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of the annual operation, maintenance, and replacementcosts for the Yellowtail Unit allocable to the amountof water for industrial purposes leased or sold by theTribe; and

(ii) the annual payments of the Tribe shall bereviewed and adjusted, as appropriate, to reflect theactual operation, maintenance, and replacement costsfor the Yellowtail Unit.

(c) TEMPORARY TRANSFER FOR USE OFF RESERVATION.-(1) IN GENERAL-Notwithstanding any other provision of

statutory or common law and subject to paragraph (2), onapproval of the Secretary and subject to the terms and condi-tions of the Compact, the Tribe may enter into a service con-tract, lease, exchange, or other agreement providing for thetemporary delivery, use, or transfer of not more than 50,000acre-feet per year of water allocated under subsection (a)(1)(A)for use off the Reservation.

(2) REQUIREMENT.-An agreement under paragraph (1)shall not permanently alienate any portion of the water allo-cated under subsection (a)(1)(A).(d) REMAINING STORAGE.-

Effective date. (1) IN GENERAL.-As of the date of enactment of this Act,water in Bighorn Lake shall be considered to be fully allocatedand no further storage allocations shall be made by the Sec-retary.

(2) EFFECT OF SUBSECTION.-Nothing in this subsectionprevents the Secretary from-

(A) renewing the storage contract with PennsylvaniaPower and Light Company consistent with the allocationto Pennsylvania Power and Light Company in existenceon the date of enactment of this Act; or

(B) entering into future agreements with either theNorthern Cheyenne Tribe or the Crow Tribe facilitatingeither tribe's use of its respective allocation of water fromBighorn Lake.

SEC. 409. SATISFACTION OF CLAIMS.

(a) IN GENERAL.-(1) SATISFACTION OF TRIBAL CLAiMS.-The benefits realized

by the Tribe under this title shall be in complete replacementof and substitution for, and full satisfaction of, all claims ofthe Tribe against the United States under paragraphs (1) and(3) of section 410(a).

(2) SATISFACTION OF ALLOTTEE CLAIMS.-The benefitsrealized by the allottees under this title shall be in completereplacement of and substitution for, and full satisfaction of-

(A) all claims waived and released under section410(a)(2); and

(B) any claims of the allottees against the UnitedStates that the allottees have or could have asserted thatare similar in nature to those described in section 410(a)(3).

(b) SATISFACTION OF CLAIMS RELATING TO CROW IRRIGATIONPROJECT.-

(1) IN GENERAL.-Subject to paragraph (3), the funds madeavailable under subsections (a) and (f) of section 414 shallbe used to satisfy any claim of the Tribe or the allotteeswith respect to the appropriation of funds for the rehabilitation,

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PUBLIC LAW 111-291-DEC. 8, 2010

expansion, improvement, repair, operation, or maintenance ofthe Crow Irrigation Project.

(2) SATISFACTION OF CLAIMS.-Upon complete transfer ofthe funds described in subsections (a) and (f) of section 414any claim of the Tribe or the allottees with respect to thetransfer of funds for the rehabilitation, expansion, improve-ment, repair, operation, or maintenance of the Crow IrrigationProject shall be deemed to have been satisfied.

(3) EFFECT.-Except as provided in section 405, nothingin this title affects any applicable law (including regulations)under which the United States collects irrigation assessmentsfrom-

(A) non-Indian users of the Crow Irrigation Project;and

(B) the Tribe, tribal entities and instrumentalities,tribal members, allottees, and entities owned by the Tribe,tribal members, or allottees, to the extent that annualirrigation assessments on such tribal water users exceedthe amount of funds available under section 411(e)(3)(D)for costs relating to CIP OM&R.

(c) No RECOGNITION OF WATER RIGHTS.-Notwithstanding sub-section (a) and except as provided in section 407, nothing in thistitle recognizes or establishes any right of a member of the Tribeor an allottee to water within the Reservation or the ceded strip.

SEC. 410. WAIVERS AND RELEASES OF CLAIMS.

(a) IN GENERAL.-(1) WAIVER AND RELEASE OF CLAIMS BY THE TRIBE AND

THE UNITED STATES ACTING IN ITS CAPACITY AS TRUSTEE FORTHE TRIBE.-Subject to the retention of rights set forth insubsection (c), in return for recognition of the tribal waterrights and other benefits as set forth in the Compact andthis title, the Tribe, on behalf of itself and the members ofthe Tribe (but not tribal members in their capacities asallottees), and the United States, acting as trustee for theTribe and the members of the Tribe (but not tribal membersin their capacities as allottees), are authorized and directedto execute a waiver and release of all claims for water rightswithin the State of Montana that the Tribe, or the UnitedStates acting as trustee for the Tribe, asserted, or could haveasserted, in any proceeding, including the State of Montanastream adjudication, prior to and including the enforceabilitydate, except to the extent that such rights are recognized inthe Compact or this title.

(2) WAIVER AND RELEASE OF CLAIMS BY THE UNITED STATESACTING IN ITS CAPACITY AS TRUSTEE FOR ALLOTTEES.-Subjectto the retention of rights set forth in subsection (c), in returnfor recognition of the water rights of the Tribe and other bene-fits as set forth in the Compact and this title, the UnitedStates, acting as trustee for allottees, is authorized and directedto execute a waiver and release of all claims for water rightswithin the Reservation and the ceded strip that the UnitedStates, acting as trustee for the allottees, asserted, or couldhave asserted, in any proceeding, including the State of Mon-tana stream adjudication, prior to and including the enforce-ability date, except to the extent that such rights are recognizedin the Compact or this title.

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PUBLIC LAW 111-291-DEC. 8, 2010

(3) WAIVER AND RELEASE OF CLAIMS BY THE TRIBE AGAINSTTHE UNITED STATES.-Subject to the retention of rights setforth in subsection (c), the Tribe, on behalf of itself and themembers of the Tribe (but not Tribal members in their capac-ities as allottees), is authorized to execute a waiver and releaseof-

(A) all claims against the United States, includingthe agencies and employees of the United States, relatingto claims for water rights within the State of Montanathat the United States, acting as trustee for the Tribe,asserted, or could have asserted, in any proceeding,including the State of Montana stream adjudication, exceptto the extent that such rights are recognized as tribalwater rights in this title, including all claims relating inany manner to the claims reserved against the UnitedStates or agencies or employees of the United States insection 4(e) of the joint stipulation of settlement;

(B) all claims against the United States, includingthe agencies and employees of the United States, relatingto damages, losses, or injuries to water, water rights, land,or natural resources due to loss of water or water rights(including damages, losses, or injuries to hunting, fishing,gathering, or cultural rights due to loss of water or waterrights, claims relating to interference with, diversion ortaking of water, or claims relating to failure to protect,acquire, replace, or develop water, water rights, or waterinfrastructure) within the State of Montana that firstaccrued at any time prior to and including the enforce-ability date, including all claims relating to the failureto establish or provide a municipal rural or industrialwater delivery system on the Reservation and all claimsrelating to the failure to provide for, operate, or maintainthe Crow Irrigation Project, or any other irrigation systemor irrigation project on the Reservation;

(C) all claims against the United States, includingthe agencies and employees of the United States, relatingto the pending litigation of claims relating to the waterrights of the Tribe in the State of Montana;

(D) all claims against the United States, includingthe agencies and employees of the United States, relatingto the negotiation, execution, or the adoption of the Com-pact (including exhibits) or this title;

(E) subject to the retention of rights set forth in sub-section (c), all claims for monetary damages against theUnited States that first accrued at any time prior to andincluding the enforceability date with respect to-

(i) the failure to recognize or enforce the claimof the Tribe of title to land created by the movementof the Bighorn River; and

(ii) the failure to make productive use of thatland created by the movement of the Bighorn Riverto which the Tribe has claimed title;(F) all claims against the United States that first

accrued at any time prior to and including the enforce-ability date arising from the taking or acquisition of theland of the Tribe or resources for the construction of theYellowtail Dam;

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PUBLIC LAW 111-291-DEC. 8, 2010

(G) all claims against the United States that firstaccrued at any time prior to and including the enforce-ability date relating to the construction and operation ofYellowtail Dam and the management of Bighorn Lake;and

(H) all claims that first accrued at any time priorto and including the enforceability date relating to thegeneration, or the lack thereof, of power from YellowtailDam.

(b) EFFECTIVENESS OF WAIVERS AND RELEASES.-The waiversunder subsection (a) shall take effect on the enforceability date.

(c) RESERVATION OF RIGHTS AND RETENTION OF CLAiMS.-Not-withstanding the waivers and releases authorized in this title,the Tribe on behalf of itself and the members of the Tribe andthe United States, acting as trustee for the Tribe and allottees,retain-

(1) all claims for enforcement of the Compact, any finaldecree, or this title;

(2) all rights to use and protect water rights acquiredafter the date of enactment of this Act;

(3) all claims relating to activities affecting the qualityof water, including any claims the Tribe may have under-

(A) the Comprehensive Environmental Response, Com-pensation, and Liability Act of 1980 (42 U.S.C. 9601 etseq.), including for damages to natural resources;

(B) the Safe Drinking Water Act (42 U.S.C. 300f etseq.);

(C) the Federal Water Pollution Control Act (33 U.S.C.1251 et seq.); and

(D) any regulations implementing the Acts describedin subparagraphs (A) through (C);(4) all claims relating to damages, losses, or injuries to

land or natural resources not due to loss of water or waterrights (including hunting, fishing, gathering, or cultural rights);

(5) all rights, remedies, privileges, immunities, and powersnot specifically waived and released pursuant to this title orarticle VII(E) of the Compact;

(6) all claims against any person or entity other thanthe United States, including claims for monetary damages,with respect to-

(A) the claim of the Tribe of title to land createdby the movement of the Bighorn River; and

(B) the productive use of that land created by themovement of the Bighorn River to which the Tribe hasclaimed title; and(7) all claims that first accrued after the enforceability

date with respect to claims otherwise waived in accordancewith subparagraphs (B) and (E) through (H) of subsection (a)(3).(d) EFFECT OF COMPACT AND TITLE.-Nothing in the Compact

or this title-(1) affects the ability of the United States, acting as sov-

ereign, to take actions authorized by law, including any lawsrelating to health, safety, or the environment, including-

(A) the Comprehensive Environmental Response, Com-pensation, and Liability Act of 1980 (42 U.S.C. 9601 etseq.);

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124 STAT. 3112

Federal Register,publication.

Time period.

PUBLIC LAW 111-291-DEC. 8, 2010

(B) the Safe Drinking Water Act (42 U.S.C. 300f etseq.);

(C) the Federal Water Pollution Control Act (33 U.S.C.1251 et seq.); and

(D) any regulations implementing the Acts describedin subparagraphs (A) through (C);(2) affects the ability of the United States to take actions

acting as trustee for any other Indian tribe or allottee of anyother Indian tribe;

(3) confers jurisdiction on any State court-(A) to interpret Federal law regarding health, safety,

or the environment;(B) to determine the duties of the United States or

other parties pursuant to Federal law regarding health,safety, or the environment; or

(C) to conduct judicial review of Federal agency action;(4) waives any claim of a member of the Tribe in an

individual capacity that does not derive from a right of theTribe; or

(5) revives any claims waived by the Tribe in the jointstipulation of settlement.(e) ENFORCEABILITY DATE.-

(1) IN GENERAL.-The enforceability date shall be the dateon which the Secretary publishes in the Federal Register astatement of findings that-

(A)(i) the Montana Water Court has issued a finaljudgment and decree approving the Compact; or

(ii) if the Montana Water Court is found to lack juris-diction, the district court of jurisdiction has approved theCompact as a consent decree and such approval is final;

(B) all of the funds made available under subsections(c) through (f) of section 414 have been deposited in theFund;

(C) the Secretary has executed the agreements withthe Tribe required by sections 405(a) and 406(a);

(D) the State of Montana has appropriated and paidinto an interest-bearing escrow account any payments dueas of the date of enactment of this Act to the Tribe underthe Compact;

(E)(i) the Tribe has ratified the Compact by submittingthis title and the Compact to a vote by the tribal member-ship for approval or disapproval; and

(ii) the tribal membership has voted to approve thistitle and the Compact by a majority of votes cast on theday of the vote, as certified by the Secretary and theTribe;

(F) the Secretary has fulfilled the requirements of sec-tion 408(a); and

(G) the waivers and releases authorized and set forthin subsection (a) have been executed by the Tribe andthe Secretary.

(f) TOLLING OF CLAIMS.-(1) IN GENERAL-Each applicable period of limitation and

time-based equitable defense relating to a claim described inthis section shall be tolled for the period beginning on thedate of enactment of this Act and ending on the date on which

ADD. 53


PUBLIC LAW 111-291-DEC. 8, 2010

the amounts made available to carry out this title are trans-ferred to the Secretary.

(2) EFFECT OF SUBSECTION.-Nothing in this subsectionrevives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enact-ment of this Act.(g) EXPIRATION AND TOLLING.-In the event that all appropria-

tions authorized by this Act have not been made available to theSecretary by June 30, 2030-

(1) the waivers authorized in this section shall expire andbe of no further force or effect; and

(2) all statutes of limitations applicable to any claim other-wise waived shall be tolled until June 30, 2030.(h) VOIDING OF WAIVERS.-If the waivers pursuant to this sec-

tion are void under subsection (g)-(1) the United States' approval of the Compact under sec-

tion 404 shall no longer be effective;(2) any unexpended Federal funds appropriated or made

available to carry out the activities authorized in this Act,together with any interest earned on those funds, and anywater rights or contracts to use water and title to other propertyacquired or constructed with Federal funds appropriated ormade available to carry out the activities authorized in thisAct shall be returned to the Federal Government, unless other-wise agreed to by the Tribe and the United States and approvedby Congress; and

(3) except for Federal funds used to acquire or developproperty that is returned to the Federal Government underparagraph (2), the United States shall be entitled to set offany Federal funds appropriated or made available to carryout the activities authorized in this Act that were expendedor withdrawn, together with any interest accrued, against anyclaims against the United States relating to water rights inthe State of Montana asserted by the Tribe or in any futuresettlement of the water rights of the Crow Tribe.

SEC. 411. CROW SETTLEMENT FUND.

(a) ESTABLISHMENT.-There is established in the Treasury ofthe United States a fund to be known as "the Crow SettlementFund", to be administered by the Secretary for the purpose ofcarrying out this title.

(b) TRANSFERS TO FUND.-The Fund shall consist of suchamounts as are deposited in the Fund under subsections (c) through(h) of section 414.

(c) ACCOUNTS OF CROW SETTLEMENT FUND.-The Secretaryshall establish in the Fund the following accounts:

(1) The Tribal Compact Administration account, consistingof amounts made available pursuant to section 414(c).

(2) The Energy Development Projects account, consistingof amounts made available pursuant to section 414(d).

(3) The MR&I System OM&R Account, consisting ofamounts made available pursuant to section 414(e).

(4) The CIP OM&R Account, consisting of amounts madeavailable pursuant to section 414(f).(d) DEPOSITS TO CROW SETTLEMENT FUND.-

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PUBLIC LAW 111-291-DEC. 8, 2010

(1) IN GENERAL-The Secretary of the Treasury shallpromptly deposit in the Fund any amounts appropriated forthat purpose.

(2) PRIORITY OF DEPOSITS TO ACCOUNTS.-Of the amountsappropriated for deposit in the Fund, the Secretary of theTreasury shall deposit amounts in the accounts listed in sub-section (c)-

(A) in full; and(B) in the order listed in subsection (c).

(e) MANAGEMENT.-(1) IN GENERAL.-The Secretary shall manage the Fund,

make investments from the Fund, and make amounts availablefrom the Fund for distribution to the Tribe consistent withthe American Indian Trust Fund Management Reform Act of1994 (25 U.S.C. 4001 et seq.).

Effective date. (2) INVESTMENT OF CROW SETTLEMENT FUND.-Beginningon the enforceability date, the Secretary shall invest amountsin the Fund in accordance with-

(A) the Act of April 1, 1880 (25 U.S.C. 161);(B) the first section of the Act of June 24, 1938 (25

U.S.C. 162a); and(C) the obligations of Federal corporations and Federal

Government-sponsored entities, the charter documents ofwhich provide that the obligations of the entities are lawfulinvestments for federally managed funds, including-

(i) the obligations of the United States PostalService described in section 2005 of title 39, UnitedStates Code;

(ii) bonds and other obligations of the TennesseeValley Authority described in section 15d of the Ten-nessee Valley Authority Act of 1933 (16 U.S.C. 831n-4);

(iii) mortgages, obligations, and other securitiesof the Federal Home Loan Mortgage Corporationdescribed in section 303 of the Federal Home LoanMortgage Corporation Act (12 U.S.C. 1452); and

(iv) bonds, notes, and debentures of the CommodityCredit Corporation described in section 4 of the Actof March 8, 1938 (15 U.S.C. 713a-4).

(3) DISTRIBUTIONS FROM CROW SETTLEMENT FUND.-(A) IN GENERAL.-Amounts from the Fund shall be

used for each purpose described in subparagraphs (B)through (E).

(B) TRIBAL COMPACT ADMINISTRATION ACCOUNT.-TheTribal Compact Administration account shall be used forexpenditures by the Tribe for Tribal Compact Administra-tion.

(C) ENERGY DEVELOPMENT PROJECTS ACCOUNT.-TheEnergy Development Projects account shall be used forexpenditures by the Tribe for the following types of energydevelopment on the Reservation, the ceded strip, and landowned by the Tribe:

(i) Development and marketing of power genera-tion on the Yellowtail Afterbay Dam authorized insection 412(b).

(ii) Development of clean coal conversion projects.

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PUBLIC LAW 111-291-DEC. 8, 2010

(iii) Renewable energy projects other than theproject described in clause (i).(D) CIP OM&R ACCOUNT.-

(i) IN GENERAL.-Amounts in the CIP OM&RAccount shall be used for CIP OM&R costs.

(ii) REDUCTION OF COSTS TO TRIBAL WATERUSERS.-

(I) IN GENERAL.-Subject to subclause (II), thefunds described in clause (i) shall be used to reducethe CIP OM&R costs to all tribal water userson a proportional basis for a given year.

(II) LIMITATION ON USE OF FUNDS.-Funds inthe CIP OM&R Account shall be used to pay irriga-tion assessments only for the Tribe, tribal entitiesand instrumentalities, tribal members, allottees,and entities owned by the Tribe, tribal members,or allottees.

(E) MR&I SYSTEM OM&R ACCOUNT.-Funds from theMR&I System OM&R Account shall be used to assist theTribe in paying MR&I System OM&R costs.(4) WITHDRAWALS BY TRIBE.-

(A) IN GENERAL.-The Tribe may withdraw any portionof amounts in the Fund on approval by the Secretaryof a tribal management plan in accordance with the Amer-ican Indian Trust Fund Management Reform Act of 1994(25 U.S.C. 4001 et seq.).

(B) REQUIREMENTS.-(i) IN GENERAL.-In addition to the requirements

under the American Indian Trust Fund ManagementReform Act of 1994 (25 U.S.C. 4001 et seq.), the tribalmanagement plan of the Tribe under subparagraph(A) shall require that the Tribe spend any amountswithdrawn from the Fund in accordance with this title.

(ii) ENFORCEMENT.-The Secretary may carry outsuch judicial or administrative actions as the Secretarydetermines to be necessary to enforce a tribal manage-ment plan to ensure that amounts withdrawn by theTribe from the Fund under this paragraph are usedin accordance with this title.(C) LIABILITY.-The Secretary and the Secretary of the

Treasury shall not be liable for the expenditure or invest-ment of amounts withdrawn from the Fund by the Tribeunder this paragraph.

(D) EXPENDITURE PLAN.-(i) IN GENERAL.-For each fiscal year, the Tribe

shall submit to the Secretary for approval an expendi-ture plan for any portion of the amounts describedin subparagraph (A) that the Tribe elects not to with-draw under this paragraph during the fiscal year.

(ii) INCLUSION.-An expenditure plan under clause(i) shall include a description of the manner in which,and the purposes for which, amounts of the Triberemaining in the Fund will be used during subsequentfiscal years.

(iii) APPROVAL.-On receipt of an expenditure planunder clause (i), the Secretary shall approve the planif the Secretary determines that the plan is-

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PUBLIC LAW 111-291-DEC. 8, 2010

(I) reasonable; and(II) consistent with this title.

(5) ANNUAL REPORTS.-The Tribe shall submit to the Sec-retary annual reports describing each expenditure by the Tribeof amounts in the Fund during the preceding calendar year.

(6) CERTAIN PER CAPITA DISTRIBUTIONS PROHIBITED.-Noamount in the Fund shall be distributed to any member ofthe Tribe on a per capita basis.(f) AVAILABILITY.-

(1) IN GENERAL.-Except as provided in paragraph (2), theamounts in the Fund shall be available for use by the Secretaryand withdrawal by the Tribe beginning on the enforceabilitydate.(2) EXCEPTION.-The amounts made available under section

414(c) shall be available for use by the Secretary and with-drawal by the Tribe beginning on the date on which the Triberatifies the Compact as provided in section 410(e)(1)(E).(g) STATE CONTRIBUTION.-The State of Montana contribution

to the Fund shall be provided in accordance with article VI(A)of the Compact.

(h) SEPARATE APPROPRIATIONS AcCOUNW.-Section 1105(a) oftitle 31, United States Code, is amended-

(1) by redesignating paragraphs (35) and (36) as paragraphs(36) and (37), respectively;

(2) by redesignating the second paragraph (33) (relatingto obligational authority and outlays requested for homelandsecurity) as paragraph (35); and

(3) by adding at the end the following:"(38) a separate statement for the Crow Settlement Fund

established under section 411 of the Crow Tribe Water RightsSettlement Act of 2010, which shall include the estimatedamount of deposits into the Fund, obligations, and outlaysfrom the Fund.".

SEC. 412. YELLOWTAIL DAM, MONTANA.

(a) STREAMFLOW AND LAKE LEVEL MANAGEMENT PLAN.-(1) IN GENERAL.-Nothing in this title, the Compact, or

the Streamflow and Lake Level Management Plan referredto in article III(A)(7) of the Compact-

(A) limits the discretion of the Secretary under thesection 4F of that plan; or

(B) requires the Secretary to give priority to any factordescribed in section 4F of that plan over any other factordescribed in that section.(2) BIGHORN LAKE MANAGEMENT.-Bighorn Lake water

management, including the Streamflow and Lake LevelManagement Plan, is a Federal activity, and the review andenforcement of any water management decisions relating toBighorn Lake shall be as provided by Federal law.

(3) APPLICABILITY OF PARAGRAPHS (1) AND (2).-TheStreamflow and Lake Level Management Plan referred to inand part of the Compact shall be interpreted to clearly reflectparagraphs (1) and (2).

(4) APPLICABILITY OF INSTREAM FLOW REQUIREMENTS INPLAN.-Notwithstanding any term (including any defined term)or provision in the Streamflow and Lake Level ManagementPlan, for purposes of this title, the Compact, and the Streamflow

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PUBLIC LAW 111-291-DEC. 8, 2010

and Lake Level Management Plan, any requirement in theStreamflow and Lake Level Management Plan that the Tribededicate a specified percentage, portion, or number of acre-feet of water per year of the tribal water rights to instreamflow means (and is limited in meaning and effect to) an obliga-tion on the part of the Tribe to withhold from developmentor otherwise refrain from diverting or removing from the Big-horn River the specified quantity of water for the duration,at the locations, and under the conditions set forth in theapplicable requirement.(b) POWER GENERATION.-

(1) IN GENERAL-Notwithstanding any other provision oflaw, the Tribe shall have the exclusive right to develop andmarket power generation on the Yellowtail Afterbay Dam, pro-vided that this exclusive right shall expire 15 years after thedate of enactment of this Act if construction has not beensubstantially completed on the power generation project of theTribe.

(2) BUREAU OF RECLAMATION COOPERATION.-The Bureauof Reclamation shall cooperate with the Tribe on the develop-ment of any power generation project under this subsection.

(3) AGREEMENT.-Before construction of a power generationproject under this subsection, the Tribe shall enter into anagreement with the Bureau of Reclamation that contains provi-sions that-

(A) allocate the responsibilities for the design, construc-tion, and operations of the project;

(B) assure the compatibility of the power generationproject with the operations of the Yellowtail Unit and theYellowtail Afterbay Dam, which shall include entering intoagreements-

(i) regarding operating criteria and emergencyprocedures, as they relate to dam safety; and

(ii) under which, should the Tribe propose anymodifications to facilities owned by the Bureau of Rec-lamation, the proposed modifications shall be subjectto review and approval by the Secretary, actingthrough the Bureau of Reclamation;(C) beginning 10 years after the date on which the

Tribe begins marketing power generated from theYellowtail Afterbay Dam, the Tribe shall make annualpayments for operation, maintenance, and replacementcosts in amounts determined in accordance with the guide-lines and methods of the Bureau of Reclamation forassessing operation, maintenance, and replacementcharges, provided that such annual payments shall notexceed 3 percent of gross annual revenue produced bythe sale of electricity generated by such project; and

(D) the Secretary-(i) shall review the charges established in the

agreement on the date that is 5 years after the dateon which the Tribe makes the first payment describedin subparagraph (C) to the Secretary under the agree-ment and at 5 year intervals thereafter; and

(ii) may increase or decrease the charges in propor-tion to the amount of any increase or decrease inthe costs of operation, maintenance, and replacement

Expiration date.

Effective date.Payments.

Review.Deadlines.

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PUBLIC LAW 111-291-DEC. 8, 2010

for the Yellowtail Afterbay Dam, provided that anyincrease in operation, maintenance, and replacementcosts assessed to the Tribe may not exceed-

(I) 5 percent in any 5 year period; and(II) 3 percent of the gross annual revenue

produced by the sale of electricity generated bysuch project.

(4) USE OF POWER BY TRIBE.-Any hydroelectric power gen-erated in accordance with this subsection shall be used ormarketed by the Tribe.

(5) REVENUES.-The Tribe shall retain any revenues fromthe sale of hydroelectric power generated by a project underthis subsection.

(6) LIABILITY OF UNITED STATES.-The United States shallhave no trust obligation to monitor, administer, or accountfor-

(A) the revenues received by the Tribe under this sub-section; or

(B) the expenditure of the revenues received by theTribe under this subsection.

Deadline. (C) CONSULTATION WITH TRIBE.-The Bureau of Reclamationshall consult with the Tribe on at least a quarterly basis on allissues relating to the management of Yellowtail Dam by the Bureauof Reclamation.

Applicability. (d) AMENDMENTS TO COMPACT AND PLAN.-The provisions ofsubsection (a) apply to any amendment to-

(1) the Compact; or(2) the Streamflow and Lake Level Management Plan.

SEC. 413. MISCELLANEOUS PROVISIONS.

(a) WAIVER OF SOVEREIGN IMMUNITY BY THE UNITED STATES.-Except as provided in subsections (a) through (c) of section 208of the Department of Justice Appropriation Act, 1953 (43 U.S.C.666), nothing in this title waives the sovereign immunity of theUnited States.

(b) OTHER TRIBES NOT ADVERSELY AFFECTED.-Nothing in thistitle quantifies or diminishes any land or water right, or any claimor entitlement to land or water, of an Indian tribe, band, or commu-nity other than the Tribe.

(c) LIMITATION ON CLAIMS FOR REIMBURSEMENT.-With respectto Indian land within the Reservation or the ceded strip-

(1) the United States shall not submit against any Indian-owned land located within the Reservation or the ceded stripany claim for reimbursement of the cost to the United Statesof carrying out this title and the Compact; and

(2) no assessment of any Indian-owned land located withinthe Reservation or the ceded strip shall be made regardingthat cost.(d) LIMITATION ON LIABILITY OF UNITED STATES.-

(1) IN GENERAL.-The United States has no trust or otherobligation-

(A) to monitor, administer, or account for, in anymanner, any funds provided to the Tribe by any partyto the Compact other than the United States; or

(B) to review or approve any expenditure of thosefunds.

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PUBLIC LAW 111-291-DEC. 8, 2010

(2) INDEMNIFICATION.-The Tribe shall indemnify theUnited States, and hold the United States harmless, withrespect to all claims (including claims for takings or breachof trust) arising from the receipt or expenditure of amountsdescribed in paragraph (1)(A).(e) EFFECT ON CURRENT LAw.-Nothing in this section affects

any provision of law (including regulations) in effect on the daybefore the date of enactment of this Act with respect topreenforcement review of any Federal environmental enforcementaction.

(f) LIMITATIONS ON EFFECT.-

(1) IN GENERAL-Nothing in this title, the Compact, orthe Streamflow and Lake Level Management Plan referredto in article III(A)(7) of the Compact-

(A) limits, expands, alters, or otherwise affects-(i) the meaning, interpretation, implementation,

application, or effect of any article, provision, or termof the Yellowstone River Compact;

(ii) any right, requirement, or obligation underthe Yellowstone River Compact;

(iii) any allocation (or manner of determining anyallocation) of water under the Yellowstone River Com-pact; or

(iv) any present or future claim, defense, or otherposition asserted in any legal, administrative, or otherproceeding arising under or relating to the YellowstoneRiver Compact (including the original proceedingbetween the State of Montana and the State ofWyoming pending as of the date of enactment of thisAct before the United States Supreme Court);(B) makes an allocation or apportionment of water

between or among States;(C) addresses or implies whether, how, or to what

extent (if any)-(i) the tribal water rights, or any portion of the

tribal water rights, should be accounted for as partof or otherwise charged against any allocation of watermade to a State under the provisions of the YellowstoneRiver Compact; or

(ii) the Yellowstone River Compact includes thetribal water rights or the water right of any Indiantribe as part of any allocation or other dispositionof water under that compact; or(D) waives the sovereign immunity from suit of any

State under the Eleventh Amendment to the Constitutionof the United States, except as expressly authorized inArticle IV(F)(8) of the Compact.(2) EFFECT OF CERTAIN PROVISIONS IN COMPACT.-The provi-

sions in paragraphs (1) and (2) of article III (A)(6)(a), para-graphs (1) and (2) of article III(B)(6)(a), paragraphs (1) and(2) of article III(E)(6)(a), and paragraphs (1) and (2) of articleIII (F)(6)(a) of the Compact that provide protections to certainwater rights recognized under the laws of the State of Montanado not affect in any way, either directly or indirectly, existingor future water rights (including the exercise of any such rights)outside of the State of Montana.

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(g) EFFECT ON RECLAMATION LAw.-The activities carried outby the Bureau of Reclamation under this title shall not establisha precedent or impact the authority provided under any otherprovision of Federal reclamation law, including-

(1) the Rural Supply Act of 2006 (Public Law 109-451;120 Stat. 3345); and

(2) the Omnibus Public Land Management Act of 2009(Public Law 111-11; 123 Stat. 991).

SEC. 414. FUNDING.

(a) REHABILITATION AND IMPROVEMENT OF CROW IRRIGATIONPROJECT.-

(1) MANDATORY APPROPRIATION.-Out of any funds in theTreasury not otherwise appropriated, the Secretary of theTreasury shall transfer to the Secretary $73,843,000, adjustedto reflect changes since May 1, 2008, in construction cost indicesapplicable to the types of construction involved in the rehabilita-tion and improvement of the Crow Irrigation Project, for therehabilitation and improvement of the Crow Irrigation Project.

(2) AUTHORIZATION OF APPROPRIATIONS.-In addition to theamount made available under paragraph (1), there is authorizedto be appropriated to the Secretary for the rehabilitation andimprovement of the Crow Irrigation Project $58,000,000,adjusted to reflect changes since May 1, 2008, in constructioncost indices applicable to the types of construction involvedin the rehabilitation and improvement of the Crow IrrigationProject.(b) DESIGN AND CONSTRUCTION OF MR&I SYSTEM.-

(1) MANDATORY APPROPRIATION.-Out of any funds in theTreasury not otherwise appropriated, the Secretary of theTreasury shall transfer to the Secretary $146,000,000, adjustedto reflect changes since May 1, 2008, in construction cost indicesapplicable to the types of construction involved in the designand construction of the MR&I System, for the design andconstruction of the MR&I System.

(2) AUTHORIZATION OF APPROPRIATIONS.-In addition to theamount made available under paragraph (1), there is authorizedto be appropriated to the Secretary for the design and construc-tion of the MR&I System $100,381,000, adjusted to reflectchanges since May 1, 2008, in construction cost indicesapplicable to the types of construction involved in the designand construction of the MR&I System.(c) TRIBAL COMPACT ADMINISTRATION.-Out of any funds in

the Treasury not otherwise appropriated, the Secretary of theTreasury shall transfer to the Secretary $4,776,000, adjusted toreflect changes in appropriate cost indices during the period begin-ning on the date of enactment of this Act and ending on thedate of the transfer, for Tribal Compact Administration.

(d) ENERGY DEVELOPMENT PROJECTS.-Out of any funds inthe Treasury not otherwise appropriated, the Secretary of theTreasury shall transfer to the Secretary $20,000,000, adjusted toreflect changes in appropriate cost indices during the period begin-ning on the date of enactment of this Act and ending on thedate of the transfer, for Energy Development Projects as set forthin section 411(e)(3)(C).

(e) MR&I SYSTEM OM&R.-Out of any funds in the Treasurynot otherwise appropriated, the Secretary of the Treasury shall

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transfer to the Secretary $47,000,000, adjusted to reflect changesin appropriate cost indices during the period beginning on thedate of enactment of this Act and ending on the date of the transfer,for MR&I System OM&R.

(f) CIP OM&R.--Out of any funds in the Treasury not otherwiseappropriated, the Secretary of the Treasury shall transfer to theSecretary $10,000,000, adjusted to reflect changes in appropriatecost indices during the period beginning on the date of enactmentof this Act and ending on the date of the transfer, for CIP OM&R.

(g) USE.-In addition to the uses authorized under subsections(a) and (b), such amounts as may be necessary of the amountsmade available under those subsections may be used to carry outrelated activities necessary to comply with Federal environmentaland cultural resource laws.

(h) ACCOUNT TRANSFERS.-(1) IN GENERAL-The Secretary may transfer from the

amounts made available under subsection (a) such amountsas the Secretary, with the concurrence of the Tribe, determinesto be necessary to supplement the amounts made availableunder subsection (b), on a determination of the Secretary, inconsultation with the Tribe, that such a transfer is in thebest interest of the Tribe.

(2) OTHER APPROVED TRANSFERS.-The Secretary maytransfer from the amounts made available under subsection(b) such amounts as the Secretary, with the concurrence ofthe Tribe, determines to be necessary to supplement theamounts made available under subsection (a), on a determina-tion of the Secretary, in consultation with the Tribe, that sucha transfer is in the best interest of the Tribe.(i) RECEIPT AND ACCEPTANCE.-The Secretary shall be entitled

to receive, shall accept, and shall use to carry out this sectionthe funds transferred under subsections (a) through (f), withoutfurther appropriation.

SEC. 415. REPEAL ON FAILURE TO MEET ENFORCEABILITY DATE.

If the Secretary does not publish a statement of findings undersection 410(e) not later than March 31, 2016, or the extendeddate agreed to by the Tribe and the Secretary, after reasonablenotice to the State of Montana, as applicable-

(1) this title is repealed effective April 1, 2016, or theday after the extended date agreed to by the Tribe and theSecretary after reasonable notice to the State of Montana,whichever is later;

(2) any action taken by the Secretary and any contractor agreement pursuant to the authority provided under anyprovision of this title shall be void;

(3) any amounts made available under section 414, togetherwith any interest on those amounts, shall immediately revertto the general fund of the Treasury;

(4) any amounts made available under section 414 thatremain unexpended shall immediately revert to the generalfund of the Treasury; and

(5) the United States shall be entitled to set off againstany claims asserted by the Tribe against the United Statesrelating to water rights-

(A) any funds expended or withdrawn from theamounts made available pursuant to this title; and

31 USC 1105 andnote.Deadline.Notification.

Effective date.

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PUBLIC LAW 111-291-DEC. 8, 2010

(B) any funds made available to carry out the activitiesauthorized in this title from other authorized sources.

SEC. 416. ANTIDEFICIENCY.

The United States shall not be liable for any failure to carryout any obligation or activity authorized by this title (includingany such obligation or activity under the Settlement Agreement)if adequate appropriations are not provided expressly by Congressto carry out the purposes of this title in the Reclamation WaterSettlements Fund established under section 10501 of Public Law111-11 or the "Emergency Fund for Indian Safety and Health"established by section 601(a) of the Tom Lantos and Henry J.Hyde United States Global Leadership Against HIV/ADS, Tuber-culosis, and Malaria Reauthorization Act of 2008 (25 U.S.C. 443c(a)).

Taos Pueblo TITLE V-TAOS PUEBLO INDIAN WATERIndian WaterRights RIGHTSSettlement Act.

SEC. 501. SHORT TITLE.

This title may be cited as the "Taos Pueblo Indian WaterRights Settlement Act".

SEC. 502. PURPOSES.

The purposes of this title are-(1) to approve, ratify, and confirm the Taos Pueblo Indian

Water Rights Settlement Agreement;(2) to authorize and direct the Secretary to execute the

Settlement Agreement and to perform all obligations of theSecretary under the Settlement Agreement and this title; and

(3) to authorize all actions and appropriations necessaryfor the United States to meet its obligations under the Settle-ment Agreement and this title.

SEC. 503. DEFINITIONS.

In this title:(1) ELIGIBLE NON-PUEBLO ENTITIES.-The term "Eligible

Non-Pueblo Entities" means the Town of Taos, the El PradoWater and Sanitation District, and the New Mexico Departmentof Finance and Administration Local Government Division onbehalf of the Acequia Madre del Rio Lucero y del Arroyo Seco,the Acequia Madre del Prado, the Acequia del Monte, theAcequia Madre del Rio Chiquito, the Upper Ranchitos MutualDomestic Water Consumers Association, the Upper ArroyoHondo Mutual Domestic Water Consumers Association, andthe Llano Quemado Mutual Domestic Water ConsumersAssociation.

(2) ENFORCEMENT DATE.-The term "Enforcement Date"means the date upon which the Secretary publishes the noticerequired by section 509(f)(1).

(3) MUTUAL-BENEFIT PROJECTS.-The term "Mutual-BenefitProjects" means the projects described and identified in articles6 and 10.1 of the Settlement Agreement.

(4) PARTIAL FINAL DECREE.-The term "Partial FinalDecree" means the Decree entered in New Mexico v. Abeytaand New Mexico v. Arellano, Civil Nos. 7896-BB (U.S.6 D.N.M.)and 7939-BB (U.S. D.N.M.) (consolidated), for the resolution

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CERTIFICATE OF SERVICE

I hereby certify that on June 8, 2016, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit

using the appellate ECF system and that all participants in this case were served

through that system.



in the united states court of appeals crow allottees … · 2017. 7. 7. · 208 f.2d 406 (9th cir....

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