[DOCID: f:hr484.110]
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110th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 110-484
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AMENDING THE ARIZONA WATER SETTLEMENTS ACT TO MODIFY THE REQUIREMENTS
FOR THE STATEMENT OF FINDINGS
_______
December 11, 2007.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Rahall, from the Committee on Natural Resources, submitted the
following
R E P O R T
[To accompany H.R. 3739]
[Including cost estimate of the Congressional Budget Office]
The Committee on Natural Resources, to whom was referred the
bill (H.R. 3739) to amend the Arizona Water Settlements Act to
modify the requirements for the statement of findings, having
considered the same, report favorably thereon without amendment
and recommend that the bill do pass.
Purpose of the Bill
The purpose of H.R. 3739 is to amend the Arizona Water
Settlements Act to modify the requirements for the statement of
findings in section 302(b)(5).
Background and Need for Legislation
The Arizona Water Settlements Act (P.L. 108-451) resolves
important water rights claims for the Gila River Indian
Community (GRIC). The Act also includes in Title III the
Southern Arizona Water Rights Settlement, which resolves
important water rights claims for the Tohono O'odham Nation
(Nation). The Secretary of the Interior must publish a notice
in the Federal Register by December 31, 2007 that the
conditions in sections 207(c) and 302(b)(5) of the Arizona
Water Settlements Act respectively have been satisfied in order
for the settlements to become enforceable.
H.R. 3739 would amend the conditions set forth in section
302(b)(5) of the Arizona Water Settlements Act by striking the
last ten words of the section, including the phrase, ``final
and nonappealable.'' Unless the law is amended as provided in
H.R. 3739, the Nation believes that some may argue that the
``final and nonappealable'' language may make it unlikely that
the legal requirements of section 302(b)(5) can be met in time
for the Secretary to publish required findings in the Federal
Register before December 31, 2007.
The ``final and nonappealable'' requirement is a potential
obstacle to enforceability of the settlement because while
section 305(b) of P.L. 108-451 requires an Arizona trial court
to approve the settlement and decree, such approval is not
final and nonappealable until it is upheld on appeal by the
Arizona Supreme Court. On November 30, 2007, the Arizona
Supreme Court did approve the trial court's approval of the
Tohono O'dham Settlement and Decree. However, some may argue
that even such approval by the Arizona State Supreme Court may
not be considered final and nonappealable because the decision
of the Arizona State Supreme Court can also be taken to the
United States Supreme Court under a writ of certiorari. Removal
of the ``final and nonappealable'' language would eliminate any
argument that the water settlement could not be finalized
without waiting for a ruling from the United States Supreme
Court on petition for a writ of certiorari by an objecting
party to the settlement.
An objection to the Tohono O'odham settlement agreement was
filed by the neighboring Pascua Yaqui Tribe in December, 2006.
The Pascua Yaqui Tribe claimed that implementation of the
Tohono O'odham settlement would adversely affect the water
rights of the Pascua Yaqui. The Superior Court for Maricopa
County approved the Tohono O'odham settlement and dismissed the
Pascua Yaqui Tribe's objection on July 9, 2007.
The Pascua Yaqui Tribe's motion to reconsider to the
Superior Court was denied by the trial court on August 28,
2007, and the Pasqua Yaqui Tribe and the Tohono O'odham Nation
both filed appeals to the Arizona State Supreme Court. The
Arizona Supreme Court ordered that filings of any legal reviews
or appeals be completed by November 1, 2007. On November 30,
2007, the Arizona Supreme Court issued its opinion affirming
the trial court's approval of the Tohono O'odham judgment and
decree. The ruling concluded that the arguments raised by the
Pascua Yaqui ``do not depend on the settlement agreement'' and
that nothing in the settlement leaves the Pascua Yaqui ``any
worse off with regard to the water available to satisfy its
claims than it is now.'' However, because Pascua Yaqui has a
right to file for a writ of certiorari before the United States
Supreme Court, which some may argue is a form of appeal for
purposes of the statutory requirement of ``final and
nonappealable'' and because the U.S. Supreme Court will not be
able to rule on any such writ of certiorari before the
statutory deadline for the settlement to reach enforceability
(December 31, 2007), some may therefore argue that it is
possible that the settlement would not attain ``final and
nonappealable'' status until after the statutory deadline has
passed.
In addition, the United States District Court for the
District of Arizona in separate litigation relating to the
amount of reimbursable costs of the construction of the Central
Arizona Project denied on November 20, 2007 the Pascua Yaqui's
motion to intervene to oppose settlement of the litigation. The
U.S. District Court also filed an order that has the effect of
removing the linkages tying the enforceability of the three
titles of the 2004 Arizona Water Settlements Act to each other.
The Nation has decided to pursue H.R. 3739 as a legislative
solution to ensure that it will meet that December 31, 2007
deadline in the 2004 Arizona Water Settlements Act.
Committee Action
H.R. 3739 was introduced on October 3, 2007 by Rep. Raul
Grijalva (D-AZ). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Water and Power. The Subcommittee on Water and Power held a
hearing on H.R. 3739 on October 24, 2007. On November 15, 2007,
the Full Natural Resources Committee met to consider the bill.
The Subcommittee on Water and Power was discharged from further
consideration of the bill, and H.R. 3739 was then ordered
favorably reported by unanimous consent to the House of
Representatives.
Section-by-Section Analysis
Section 1. Modification to requirements for statement of findings
Section 1 would amend The Arizona Water Settlements Act
(Public Law 108-451; 118 Stat. 3571) to strike the last ten
words of section 302(b)(5). Section 302(b)(5) requires, that
before the settlement can take effect, the legal documents that
implement the settlement agreement must be approved by the
State court having jurisdiction over the Gila River
adjudication proceedings, and ``that judgment and decree have
become final and nonappealable.'' This ``final and
nonappealable'' language does not appear in any of the other
titles of the Arizona Water Settlements Act and is considered
by many to be a product of a piecemeal legislative drafting
process.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Constitutional Authority Statement
Article I, section 8 of the Constitution of the United
States grants Congress the authority to enact this bill.
Compliance With House Rule XIII
1. Cost of Legislation. Clause 3(d)(2) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(3)(B)
of that Rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974.
2. Congressional Budget Act. As required by clause 3(c)(2)
of rule XIII of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, this
bill does not contain any new budget authority, spending
authority, credit authority, or an increase or decrease in
revenues or tax expenditures.
3. General Performance Goals and Objectives. This bill does
not authorize funding and therefore, clause 3(c)(4) of rule
XIII of the Rules of the House of Representatives does not
apply.
4. Congressional Budget Office Cost Estimate. Under clause
3(c)(3) of rule XIII of the Rules of the House of
Representatives and section 403 of the Congressional Budget Act
of 1974, the Committee has received the following cost estimate
for this bill from the Director of the Congressional Budget
Office:
H.R. 3739--A bill to amend the Arizona Water Settlements Act to modify
the requirements for the statement of findings
H.R. 3739 would amend the Arizona Water Settlements Act to
modify requirements for a statement of findings by the
Secretary of the Interior. The Arizona Water Settlements Act
was enacted to settle several water disputes in the state of
Arizona between the federal government and various state,
tribal, and nongovernmental entities. Title III of that act
approved the Southern Arizona Water Rights Settlement
Amendments Act of 2004, which provided for a settlement between
the Tohono O'odham tribe and the federal government. The
Arizona Water Settlements Act will become effective on December
31, 2007, pending the publication of a specific statement of
findings by the Secretary in the Federal Register.
CBO estimates that implementing H.R. 3739 would have no
significant effect on the federal budget. We expect that all
titles of the Arizona Water Settlements Act will become
effective on December 31, 2007, and our projection of the costs
associated with implementing those titles would not be affected
by this bill's enactment. Enacting the bill also would not
affect direct spending or revenues.
H.R. 3739 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reforms Act and
would impose no costs on state, local, or tribal governments.
The CBO staff contact for this estimate is Tyler Kruzich.
This estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Earmark Statement
H.R. 3739 does not contain any congressional earmarks,
limited tax benefits, or limited tariff benefits as defined in
clause 9(d), 9(e) or 9(f) of rule XXI.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, existing law in which no change is
proposed is shown in roman):
SECTION 302 OF THE ARIZONA WATER SETTLEMENTS ACT
SEC. 302. SOUTHERN ARIZONA WATER RIGHTS SETTLEMENT EFFECTIVE DATE.
(a) * * *
(b) Effective Date.--This title and the amendments made by
this title take effect as of the enforceability date, which is
the date the Secretary publishes in the Federal Register a
statement of findings that--
(1) * * *
* * * * * * *
(5) the judgment and decree attached to the Tohono
O'odham settlement agreement as exhibit 17.1 has been
approved by the State court having jurisdiction over
the Gila River adjudication [proceedings, and that
judgment and decree have become final and
nonappealable;] proceedings;
* * * * * * *
(c) Failure To Publish Statement of Findings.--If the
Secretary does not publish a statement of findings under
[subsection (a)] subsection (b) by December 31, 2007--
(1) the 1982 Act shall remain in full force and
effect;
(2) this title shall not take effect; and
(3) any funds made available by the State under this
title that are not expended, together with any interest
on those funds, shall immediately revert to the State.
* * * * * * *
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