Pamela Williams, Director Secretary s Indian Water Rights Office WSWC Spring Meeting March 21, 2019 Chandler, AZ
Settlement Era Begins For almost 4 decades, tribes, states, local parties, and the Federal Government have embraced negotiated settlements, rather than protracted litigation, as the preferred approach to resolving Indian water rights conflicts 2
Benefits of Settlements Wet Water Provide wet water to tribes; litigation provides paper water Win-Win Provide water to tribes while protecting existing non- Indian water users Local Solutions Allow parties to develop and implement creative solutions to water use problems based on local knowledge and values 3
Benefits of Settlements (cont d) Certainty and Economic Development Provide certainty to tribes and neighboring communities, support economic development for tribes, and replace historic tension with cooperation Trust Responsibility Consistent with the Federal trust responsibility and Federal policy of promoting Indian self-determination and economic self-sufficiency 4
Settlement Negotiations Settlement negotiations frequently evolve from litigation but can also occur without litigation DOI provides technical and other assistance to the tribes Settlement agreements vary from multi-party agreements to compacts among the state, tribe, and Federal Government When agreement is reached, parties typically seek Federal approval in the form of Federal legislation 5
Completed Settlements Department of the Interior (DOI) has completed 36 Indian water rights settlements since 1978 Congressionally Approved 32 Administratively Approved by DOI & Department of Justice (DOJ) 4 6
Enacted Settlements Settlement Year Public Law State Settlement Year Public Law State Pechanga 2016 P.L. 114-322 CA Rocky Boys 1999 P.L. 106-163 MT Choctaw-Chickasaw 2016 P.L. 114-322 OK Yavapai-Prescott 1994 P.L. 103-434 AZ Blackfeet 2016 P.L. 114-322 MT Jicarilla Apache 1992 P.L. 102-441 NM Bill Williams River (Hualapai) 2014 P.L. 113-223 AZ Northern Cheyenne 1992 P.L. 102-374 MT Pyramid Lake Paiute-Fish Springs 2014 P.L. 113-169 NV Ute 1992 P.L. 102-575 UT White Mountain Apache 2010 P.L. 111-291 AZ San Carlos Apache 1992 P.L. 102-575 AZ Crow Tribe 2010 P.L. 111-291 MT Fort Hall 1990 P.L. 101-602 ID Taos Pueblo 2010 P.L. 111-291 NM Fort McDowell 1990 P.L. 101-628 AZ Aamodt 2010 P.L. 111-291 NM Fallon Paiute Shoshone 1990 P.L. 101-618 NV Navajo-San Juan 2009 P.L. 111-11 NM Truckee-Carson-Pyramid Lake 1990 P.L. 101-618 NV Duck Valley 2009 P.L. 111-11 NV Colorado Ute 1988 P.L. 100-585 CO Soboba 2008 P.L. 110-297 CA Salt River Pima-Maricopa 1988 P.L. 100-512 AZ Nez Perce 2004 P.L. 108-447 ID San Luis Rey 1988 P.L. 100-675 CA Gila River 2004 P.L. 108-451 AZ Seminole Land Claims 1987 P.L. 100-228 FL Zuni 2003 P.L. 108-34 AZ SAWRSA 1982 P.L. 97-293 AZ Shivwits 2000 P.L. 106-263 UT Ak-Chin 1978 P.L. 95-328 AZ 7
Indian Water Rights Settlements with Federal Legislation, by State AZ NM NV MT CA UT ID CO OK FL 0 1 2 3 4 5 6 7 8 9 10
1978 1982 1987 1988 1990 1992 1994 1999 2000 2003 2004 2008 2009 2010 2014 2016 Number of Indian Water Rights Settlements by Year of Federal Legislation 4 3 2 1 0
Who is at the Table for the Federal Government? The Department of the Interior's Working Group on Indian Water Settlements Chaired by Alan Mikkelsen, Senior Advisor to the Secretary Composed of all Assistant Secretaries and the Solicitor Provides Policy Guidance for the Indian Water Rights Settlement Program The Secretary s Indian Water Rights Office Manages the Indian Water Rights Settlement Program Local Federal Negotiation Teams Primary manner in which the Federal Government participates in settlement activity 21 - Negotiation Teams 23 - Implementation Teams 2 - Assessment Teams 10
Criteria and Procedures The Criteria & Procedures for Participation of Federal Government in Negotiating for Settlement of Indian Water Rights Claims, 55 Fed. Reg. 9223-9225, Mar. 12, 1990 Provide guidelines for Administration s participation in settlements Include factors to be considered in deciding Federal contribution to settlement cost share Require non-federal cost sharing 11
Criteria and Procedures (cont d) Four-Phase Settlement Procedure Phase I Fact Finding Phase II Assessments and Recommendations Phase III Briefings and Negotiation Positions Phase IV Negotiation Towards Settlement
Team Structure Team Membership Agencies most typically represented on teams: Bureau of Indian Affairs (BIA) Bureau of Reclamation (BOR) Fish and Wildlife Service (FWS) Office of the Solicitor (SOL) Department of Jusitce (DOJ) Can include any DOI or other Federal Department having an interest Teams are typically staffed at the local level 13
Team Duties and Settlement Process First line negotiators, explains Federal Policy on settlement issues, and helps mold the parameters of the settlement Makes recommendations to the Working Group on a negotiation position, including the amount of the Federal contribution and how it can be justified The Working Group considers the team's recommendations and makes settlement decisions for the Secretary s consideration Thereafter, the Department works with the Office of Management and Budget (OMB) and DOJ in finalizing a Federal position 14
Who is at the Table for Tribes and Local Parties? Indian water rights vary in character based on historic circumstances and by region (irrigation focus in the Southwest: flows for fisheries focus the Pacific Northwest) Settlement parties will vary as each settlement deals with specific tribal and local communities needs and issues Some states have developed their own negotiation style or process. Others are still struggling with process 15
Settlement Challenges Typical settlement has averaged 10.9 years to negotiate but some have taken as few as 5 years or as long as 25 years Reasons for lack of closure vary: Local politics Litigation pressure insufficient, rulings anticipated, or rulings favor one party Turn over in team personnel--federal, tribal and state Unwillingness of parties to meaningfully engage Unrealistic expectations often on Federal funding 16
Non General Stream Adjudication (GSA) Teams Increasing requests for teams where there is no general stream adjudication: Facts may be insufficiently developed for negotiation purposes. Factual development will take more time and money than teams in GSA Lack of pressure from litigation Finality - GSA binds all water users in system. Without it finality is difficult. Sometimes contractual arrangements can work (Soboba) Funding for litigation is higher priority Nevertheless, DOI has appointed Non GSA teams: Hualapai Tule River Umatilla Lummi 17
Implementation Teams Once settlement passed by Congress, real work often is just beginning Length of implementation varies depending on settlement terms. Can be a lengthy process If there are problems with settlement, implementation will be significantly delayed and DOI has to commit resources to implementation that could otherwise be committed to new negotiations Sometimes implementation difficulties require settlement amendments 18
Federal Costs of Settlements Federal funding required by Indian water settlements has significantly increased over time Roughly a billion dollars expended between mid 1980s and 2002 but more than $2 billion authorized between 2009-2016 Funding of Indian Water Rights Settlements comes out of the budgets of both the Bureau of Indian Affairs and the Bureau of Reclamation. 19
2016 2014 2012 2010 2008 2006 2004 2002 2000 1998 1996 1994 1992 1990 1988 1986 1984 1982 1980 1978 Millions $ Settlement Funding $1,000 $900 $800 $700 $600 $500 $400 $300 $200 $100 $0 20 19
Settlement Funding Omnibus Public Land Management Act (P.L. 111-11) Established Reclamation Water Settlement Fund $120 million for each of 10 years beginning in 2020 (total of $1.2 billion) Funding is allocated based on priorities within the Act: Will not provide a funding source for all new settlements 21
RWSF Priorities Priority I. Navajo-Gallup Water Supply Project (Mandated to be fully appropriated by December 2024) Priority II. Other New Mexico Settlements: Aamodt Litigation Settlement (Mandated to be fully appropriated by June 2024) Taos Pueblo Indian Water Rights (Fully funded) Priority III. Montana Settlements: Blackfeet Water Rights Settlement (Mandated to be fully appropriated by January 2025) Crow Tribe Water Rights Settlement (Mandated to be fully appropriated by June 2030) Ft. Belknap Indian Reservation (if settlement is authorized by December 31, 2019) Priority IV. Arizona Settlements: Arizona Navajo Nation: Lower Colorado River basin (if settlement is authorized by December 31, 2019) 22
DOI Funding FY 2018 FY 2019 FY 2020 (request) SIWRO $1,560,000 $1,379,000 $1,370,000 Reclamation $6,259,000 $6,074,000 $5,992,000 BIA $18,061,000 $18,062,000 $16,571,000 TOTAL* $27,298,000 $27,089,000 $25,025,000 *includes funding provided by other DOI Bureaus 23
Recent Settlements Indian Water Settlements in 2016 Water Infrastructure Improvements for the Nation Act (P.L. 114-322) Blackfeet Nation ended litigation filed in 1979 (Federal cost approx. 422 million*) Pechanga ended litigation filed in 1951 (Federal cost approx. $28.5*) Chickasaw and Choctaw Litigation filed in 2011 (no Federal cost) San Luis Rey Amendment ended litigation filed almost 50 years ago (no new federal funding authorized) Amendment to the White Mountain Apache Tribe Water Rights Quantification Act of 2010 (P.L. 115-227) Amendment to the Blackfeet Water Rights Settlement Act of 2016 (P.L. 115-270) *not including indexing 24
Pending Legislation Settlements introduced in 116th Congress: Navajo Utah- S. 664 introduced on 1/17/19 Federal cost: $210.4M (before indexing) Legislation not yet introduced in Congress but expected soon: RWSF Potential House hearing on 4/4/2019 CSKT Tule River Hualapai Kickapoo 25
Congressional Support for Indian Water Rights Settlements Congressman Rob Bishop, former Chairman, House Natural Resources Committee, sent letters to Justice and Interior in February 2015 for the 114 th Congress and in April 2017 for the 115 th Congress regarding the requirements for Committee consideration of Indian water settlement legislation: 1. Compliance with Criteria and Procedures, (especially #4 and 5) 2. Administration support of legislation from Interior and Justice 3. List of claims being settled All indications are that current House Resources Committee leadership will not follow the "Bishop process"
Lessons Learned Settlements that are incomplete will have to be completed in implementation phase and will be very difficult to conclude after legislation is passed: Uncertain water supply (San Luis Rey and Ft. McDowell) Unclear waivers (San Luis Rey and Ute) Key players not at the table can block implementation: SAWRSA allottees Ft. Hall non-indian irrigators within BIA project Important assumptions not included: Northern Cheyenne: cost sharing unclear Yavapai-Prescott: reimbursability of Indian construction debt not addressed Aamodt: legality rights of way No matter what, the unforeseen can and will arise AWSA: economic downturn lowers interest rates and Navajo Generating Station closure pending 27