Pub. L. 105-18, tit. II, ch. 5, sec. 5003

Sec. 5003. (a) Extension and Effective Date.—Section 3711(b)(1) of the San Carlos Apache Tribe Water Rights Settlement Act of 1992 (106 Stat. 4752) is amended by striking “June 30, 1997” and inserting “March 31, 1999” (b) Extension for River System General Adjudication.—Section 3711 of such Act is amended by adding at the end the following new subsection: “(c) Extension for River System General Adjudication.—If, at any time prior to March 31, 1999, the Secretary notifies the Committee on Indian Affairs of the United States Senate or the Committee on Resources in the United States House of Representatives that the Settlement Agreement, as executed by the Secretary, has been submitted to the Superior Court of the State of Arizona in and for Maricopa County for consideration and approval as part of the General Adjudication of the Gila River System and Source, the March 31, 1999, referred to in subsection (b)(1) shall be deemed to be changed to December 31, 1999.”. (c) Counties.—Section 3706(b)(3) of such Act is amended by inserting “Gila, Graham, Greenlee,” after “Maricopa,”. (d) Parties to Agreement.—Section 3703(2) of such Act is amended by adding at the end the following new sentence: “The Gila Valley Irrigation District and the Franklin Irrigation District shall be added as parties to the Agreement, but only so long as none of the aforementioned parties objects to adding the Gila Valley Irrigation and/or the Franklin Irrigation District as parties to the Agreement.”.111 STAT. 182 (e) Definitions.—Section 3703 of such Act is amended by adding the following new paragraphs: “(12) ‘Morenci mine complex’ means the lands owned or leased by Phelps Dodge Corporation, now or in the future, delineated in a map as ‘Phelps Dodge Mining, Mineral Processing, and Auxiliary Facilities Water Use Area’, which map is dated March 19, 1996, and is on file with the Secretary of the Interior. “(13) ‘Upper Eagle Creek Wellfield’ means that area in Greenlee County which is bounded by the eastern boundary of Graham County on the west, the southern boundary of the Black River watershed on the north, a line running north and south 5 miles east of the eastern boundary of Graham County on the east, and the southern boundary of the natural drainage of Cottonwood Canyon on the south.”. (f) Black River Facilities.—Section 3711 of such Act, as amended by subsection (b) of this Act, is further amended by adding at the end the following: “(d) Black River Facilities.— “(1) In general.—The provisions and agreements set forth or referred to in paragraphs (2), (3), and (4) below shall be enforceable against the United States in United States district court, and the immunity of the United States for such purposes and for no other purpose is hereby waived. The provisions and agreements set forth or referred to in paragraphs (2)(A), (3), and (4) below shall be enforceable against the Tribe in United States district court, and the immunity of the Tribe for such purposes and for no other purpose, is hereby waived. The specific agreements made by the Tribe and set forth in paragraph (5) shall be enforceable against the Tribe in United States district court, and the immunity of the Tribe is hereby waived as to such specific agreements and for no other purpose. “(2) Interim period.— “(A) As of July 23, 1997, Phelps Dodge shall vacate the reservation and no longer rely upon permit #2000089, dated July 25, 1944. On such date the United States, through the Bureau of Reclamation, shall enter, operate, and maintain the Black River pump station, outbuildings, the pipeline, related facilities, and certain caretaker quarters (hereinafter referred to collectively as the ‘Black River facilities’). “(B) The United States and Phelps Dodge shall enter into a contract for delivery of water pursuant to subparagraph (C), below. Water for delivery to Phelps Dodge from the Black River shall not exceed an annual average of 40 acre feet per day, or 14,000 acre feet per year. All diversions from Black River to Phelps Dodge shall be junior to the diversion and use of up to 7,300 acre feet per year by the San Carlos Apache Tribe, and no such diversion for Phelps Dodge shall cause the flow of Black River to fall below 20 cubic feet per second. The United States shall account for the costs for operating and maintaining the Black River facilities, and Phelps Dodge shall reimburse the United States for such costs. Phelps Dodge shall pay to the United States, for delivery to the Tribe, the sum of $20,000 per month, with an annual CPI adjustment from July 23, 1997, for purposes of compensating the Tribe for United States use and occupancy of the Black 111 STAT. 183River facilities. Phelps Dodge and the Tribe shall cooperate with the United States in effectuating an orderly transfer of the operations of the Black River facilities from Phelps Dodge to the United States. “(C) Notwithstanding any other provision of law, the contract referred to in subparagraph (B) between the United States and Phelps Dodge which provides for the diversion of water from the Black River into the Black River facilities, and the delivery of such water to Phelps Dodge at that location where the channel of Eagle Creek last exits the reservation for use in the Morenci mine complex and the towns of Clifton and Morenci and at no other location, is ratified and confirmed. “(D) The power line right-of-way over the Tribe’s Reservation which currently is held by Phelps Dodge shall remain in place. During the interim period, Phelps Dodge shall provide power to the United States for operation of the pump station and related facilities without charge, and Phelps Dodge shall pay a monthly right-of-way fee to the Tribe of $5,000 per month, with an annual CPI adjustment from July 23, 1997. “(E) Any questions regarding the water claims associated with Phelps Dodge’s use of the Upper Eagle Creek Wellfield, its diversions of surface water from Eagle Creek, the San Francisco River, Chase Creek, and/or its use of other water supplies are not addressed in this title. No provision in this subsection shall affect or be construed to affect any claims by the Tribe, the United States, or Phelps Dodge to groundwater or surface water. “(3) Final arrangements and terms.—The interim period described in paragraph (2) shall extend until all conditions set forth in paragraph (3)(B) have been satisfied. At such time, the following final arrangements shall apply, based on the terms set forth below. Such terms shall bind the Tribe, the United States, and Phelps Dodge, and shall be enforceable pursuant to subsection (d)(1) of this Act. “(A) The United States shall hold the Black River facilities in trust for the Tribe, without cost to the Tribe or the United States. “(B) Responsibility for operation of the Black River facilities shall be transferred from the United States to the Tribe. The United States shall train Tribal members during the interim period, and the responsibility to operate the Black River facilities shall be transferred upon satisfaction of 2 conditions— “(i) a finding by the United States that the Tribe has completed necessary training and is qualified to operate the Black River facilities; and “(ii) execution of the contract described in paragraph (3)(E), which contract shall be executed on or before December 31, 1998. In the event that the contract is not executed by December 31, 1998, the transfer described in this subsection shall occur on December 31, 1998 (so long as condition (i) of this subparagraph has been satisfied), based on application of the contract terms described in paragraph (3)(E), which terms shall be enforceable under this Act. Upon the 111 STAT. 184approval of the Secretary, the Tribe may contract with third parties to operate the Black River facilities. “(C) Power lines currently operated by Phelps Dodge on the Tribe’s Reservation, and the right-of-way associated with such power lines, shall be surrendered by Phelps Dodge to the Tribe, without cost to the Tribe. Prior to the surrender of the power lines, the Bureau of Reclamation shall arrange for an inspection of the power lines and associated facilities by a qualified third party and shall obtain a certification that such power lines and facilities are of sound design and are in good working order. Phelps Dodge shall pay for the cost of such inspection and certification. Concurrently with the surrender of the power lines and the right-of-way, Phelps Dodge shall construct a switch station at the boundary of the Reservation at which the Tribe may switch power on or off and shall deliver ownership and control of such switch station to the Tribe. Subsequent to the transfer of the power lines and the right-of-way and the delivery of ownership and control of the switch station to the Tribe, Phelps Dodge shall have no further obligation or liability of any nature with respect to the ownership, operation, or maintenance of the power lines, the right-of-way, or the switch station. “(D) The Tribe and the United States will enter into an exchange agreement with the Salt River Project which will deliver CAP water controlled by the Tribe to the Salt River Project in return for the diversion of water from the Black River into the Black River facilities. The exchange agreement shall be subject to review and approval by Phelps Dodge, which approval shall not be unreasonably withheld. Notwithstanding any other provision of law, the contract referred to in this subparagraph is ratified and confirmed. “(E) The Tribe, the United States, and Phelps Dodge will execute a contract covering the lease and delivery of CAP water from the Tribe to Phelps Dodge on the following terms: “(i) The Tribe will lease to Phelps Dodge 14,000 acre feet of CAP water per year as of the date on which the interim period referred to in paragraph (2) expires. The lease shall be subject to the terms and conditions identified in the Tribal CAP Delivery Contract referenced in section 3706(b). The leased CAP water shall be delivered to Phelps Dodge from the Black River pursuant to the exchange referred to in subparagraph (D) above, based on diversions from the Black River that shall not exceed an annual average of 40 acre feet per day and shall not cause the flow of Black River to fall below 20 cubic feet per second. Such CAP water shall be delivered to Phelps Dodge at that location where the channel of Eagle Creek last exits the Reservation, to be utilized in the Morenci mine complex and the towns of Clifton and Morenci, and at no other location. “(ii) The leased CAP water shall be junior to the diversion and use of up to 7,300 acre feet per year 111 STAT. 185from the Black and Salt Rivers by the San Carlos Apache Tribe. “(iii) The lease will be for a term of 50 years or, if earlier, the date upon which mining activities at the Morenci mine complex cease, with a right to renew for an additional 50 years upon a finding by the Secretary that the water is needed for continued mining activities at the Morenci mine complex. The lease shall have the following financial terms: “(I) The Tribe will lease CAP water at a cost of $1,200 per acre foot. Phelps Dodge shall pay to the United States, on behalf of the Tribe, the sum of $5,000,000 upon the earlier of the execution of the agreement, or upon the expiration of the interim period referred to in paragraph (2) hereof, which amount shall be a prepayment for and applicable to the first 4,166 acre feet of CAP water to be delivered in each year during the term of the lease. “(II) Phelps Dodge shall pay the United States, on behalf of the Tribe, the sum of $65 per acre foot per year, with an annual CPI adjustment for the remaining 9,834 acre feet of water to be delivered pursuant to the lease each year. Such payments shall be made in advance on January 1 of each year, with a reconciliation made at yearend, if necessary, in the event that less than 14,000 acre feet of CAP water is diverted from the Black River due to shortages in the CAP system or on the Black River. “(III) Phelps Dodge shall pay in advance each month the Tribe’s reasonable costs associated with the Tribe’s operation, maintenance, and replacement of the Black River facilities for purposes of delivering water to Phelps Dodge pursuant to the lease, which costs shall be based upon the experience of the Bureau of Reclamation in operating the Black River facilities during the interim period referred to in paragraph (2), subject to an annual CPI adjustment, and providing for a credit for power provided by Phelps Dodge to the Tribe. In addition, Phelps Dodge shall pay a monthly fee of $30,000 to the United States, on behalf of the Tribe, to account for the use of the Tribe’s distribution system. “(IV) Phelps Dodge shall pay the United States operation, maintenance, and replacement charges associated with the leased CAP water and such reasonable interconnection charges as may be imposed by Salt River Project in connection with the exchange referred to in subparagraph (D) above. “(iv) Notwithstanding the provisions of section 3707(b), any moneys, except Black River facilities OM&R, CAP OM&R and any charges associated with an exchange agreement with Salt River Project, paid to the United States on behalf of the Tribe from the 111 STAT. 186lease referred to under paragraph (3)(D)(iii) shall be held in trust by the United States for the benefit of the Tribe. There is hereby established in the Treasury of the United States a fund to be known as the ‘San Carlos Apache Tribe Lease Fund’ for such purpose. Interest accruing to the Fund may be used by the Tribe for economic and community development purposes upon presentation to the Secretary of a certified copy of a duly enacted resolution of the Tribal Council requesting distribution and a written budget approved by the Tribal Council. Such income may thereafter be expended only in accordance with such budget. Income not distributed shall be added to principal. The United States shall not be liable for any claim or causes of action arising from the Tribe’s use or expenditure of moneys distributed from the Fund. “(v) The lease is not assignable to any third party, except with the consent of the Tribe and Phelps Dodge, and with the approval of the Secretary. “(vi) Notwithstanding subsection (b) hereof, section 3706 shall be fully effective immediately with respect to the CAP water lease provided for in this subparagraph and the Secretary shall take all actions authorized by section 3706 necessary for purposes of implementing this subparagraph. Notwithstanding any other provision of law, the contract referred to in this subparagraph is ratified and confirmed and shall be enforceable in United States district court. In the event that no lease authorized by this subparagraph is executed, this subparagraph, notwithstanding any other provision of law, shall be enforceable as a lease among the Tribe, the United States, and Phelps Dodge in the United States district court, and the Secretary shall take all action authorized by section 3706 for purposes of implementing this subparagraph in such an event. “(F) Any questions regarding the water claims associated with Phelps Dodge’s use of the Eagle Creek Wellfield, its diversions of surface water from lower Eagle Creek, the San Francisco River, Chase Creek, and/or its use of other water supplies are not addressed by this title. No provision in this subsection shall affect or be construed to affect any claims by the Tribe, the United States, or Phelps Dodge to groundwater or surface water. “(4) Eagle creek.—From the effective date of this subsection, and during the Interim Period, the Tribe shall not, in any way, impede, restrict, or sue the United States regarding the passage of water from the Black River facilities into those portions of the channels of Willow Creek and Eagle Creek which flow through the Reservation. Phelps Dodge agrees to limit pumping from the Upper Eagle Creek Wellfield so that the combination of water from the Black River facilities and water pumped from the Upper Eagle Creek Wellfield does not exceed 22,000 acre feet per year of delivered water at the Phelps Dodge Lower Eagle Creek Pump Station below the Reservation. In calculating the pumping rates allowed under this subparagraph, transmission losses from Black River 111 STAT. 187and the Upper Eagle Creek Wellfield shall be estimated, but in no event shall such transmission losses be more than 10 percent of the Black River or Upper Eagle Creek Wellfield water. Based on this agreement, the Tribe shall not, in any way, impede, restrict, or sue Phelps Dodge regarding the passage of water from the Phelps Dodge Upper Eagle Creek Wellfield, except that— “(A) Phelps Dodge shall pay to the United States, on behalf of the Tribe, $5,000 per month, with an annual CPI adjustment from July 23, 1997, to account for the passage of such flows; and “(B) the Tribe and the United States reserve the right to challenge Phelps Dodge’s claims regarding the pumping of groundwater from the Upper Eagle Creek Wellfield, in accordance with paragraphs (2)(E) and (3)(F) above. In the event that a court determines that Phelps Dodge does not have the right to pump the Upper Eagle Creek Wellfield, the Tribe will no longer be subject to the restriction set forth in this subparagraph regarding the passage of water from the Wellfield through the Reservation. Nothing in this subsection shall affect the rights, if any, that Phelps Dodge might claim regarding the flow of water in the channel of Eagle Creek in the absence of this subsection. “(5) Past claims.—The Act does not address claims relating to Phelps Dodge’s prior occupancy and operation of the Black River facilities. The Tribe agrees not to bring any such claims against the United States. The Tribe also agrees that within 30 days after Phelps Dodge has vacated the Reservation, it shall dismiss with prejudice the suit that it has filed in Tribal Court against Phelps Dodge (The San Carlos Apache Tribe v. Phelps Dodge, et al., Case No. C–97–118), which such dismissal shall not be considered a decision on the merits, and any claims that it might assert against Phelps Dodge in connection with Phelps Dodge’s prior occupancy and operation of the Black River facilities shall be brought exclusively in the United States district court. “(6) Relationship to settlement.— “(A) The term ‘Agreement’, as defined by section 3703(2), shall not include Phelps Dodge. “(B) Section 3706(j) and section 3705(f) shall be repealed and shall have no effect. “(7) Ratification of settlement.—The agreement between the San Carlos Apache Tribe, the Phelps Dodge Corporation, and the Secretary of the Interior, as set forth in this subsection, is hereby ratified and approved.”. (g) Technical Amendment.—Section 3702(a)(3) is amended by striking “qualification” and inserting “quantification”.