Sec. 12. Waivers and releases of claims
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Subject to the retention of water rights described in subsection (c), as consideration for recognition of the tribal water right and other benefits under the Compact and this Act, the Tribes, on behalf of the Tribes and members of the Tribes (except any member of the Tribes in the capacity of the member as an allottee), and the United States, acting as trustee for the Tribes and the members of the Tribes (except any member of the Tribes in the capacity of the member as an allottee), shall execute a waiver and release of all claims for water rights within the State that the Tribes, or the United States acting as trustee for the Tribes, asserted or could have asserted in any proceeding, including a State stream adjudication, on or before the enforceability date, except to the extent that those rights are recognized in the Compact and this Act.
Subject to the retention of water rights described in subsection (c), as consideration for recognition of the tribal water right and other benefits under the Compact and this Act, the United States, acting as trustee for allottees, may execute a waiver and release of all claims for water rights within the Reservation that the United States, acting as trustee for the allottees, asserted or could have asserted in any proceeding, including a State stream adjudication, on or before the enforceability date, except to the extent that those rights are recognized in the Compact and this Act.
Subject to the retention of water rights described in subsection (c), the Tribes, on behalf of the Tribes and members of the Tribes (except any member of the Tribes in the capacity of the member as an allottee), shall execute a waiver and release of all claims against the United States (including any agency or employee of the United States)— relating to— claims for water rights within the State that the United States, acting as trustee for the Tribes, asserted or could have asserted in any proceeding, including a stream adjudication in the State, except to the extent that those rights are recognized as part of the tribal water right under this Act; damage, loss, or injury 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 water rights, claims relating to interference with, diversion, or taking of water, or claims relating to failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) within the State that first accrued on or before the enforceability date; failure to establish or provide a municipal, rural, or industrial water delivery system on the Reservation; failure to provide— for operation or maintenance, or deferred maintenance, for the Flathead Indian irrigation project or any other irrigation system or irrigation project; or dam safety improvements to dams within the Reservation; the litigation of claims relating to the water rights of the Tribes in the State; or the negotiation, execution, or adoption of the Compact or this Act; reserved in subsections
(b)through
(d)of section 6 of the settlement for the case styled Nez Perce Tribe v. Salazar, No. 06cv2239TFH (D.D.C. 2012); and that first accrued on or before the enforceability date arising from the taking or acquisition of the land of the Tribes or resources for the construction of the features of the Flathead Indian irrigation project. The waivers under subsection
(a)shall take effect on the date on which the Secretary publishes in the Federal Register a statement of findings that— the Montana Water Court has issued a final judgment and decree approving the Compact; or if the Montana Water Court is found to lack jurisdiction, the United States district court has approved the Compact as a consent decree and the approval is final; all amounts authorized to be appropriated under sections 9(m) and 10(f) have been appropriated; the Secretary has fulfilled the requirements of section 5(f)(2); the State has appropriated and paid into an interest-bearing escrow account any payments due as of the date of enactment of this Act to the Tribes under the Compact and this Act; the Tribes have ratified the Compact; the Secretary has fulfilled the requirements of section 6(a); and the waivers and releases described in subsection
(a)have been executed by the Tribes and the Secretary. Notwithstanding subsection (a), the Tribes, on behalf of the Tribes and members of the Tribes, and the United States, acting as trustee for the Tribes and allottees, retain— all claims relating to— enforcement of, or claims accruing after the enforceability date relating to water rights recognized under, the Compact, any final decree, or this Act; and activities affecting the quality of water, including any claims the Tribes may have under— the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ), including damages to natural resources; the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ) (commonly referred to as the Clean Water Act ); and any regulations implementing the Acts described in clauses
(i)through (iii); all claims relating to damage caused by structures, dams, or facilities, as a result of preexisting conditions, while performing any activity under section 8; all rights to use and protect water rights acquired after the date of enactment of this Act; all claims relating to damage, loss, or injury to land or natural resources that are not due to loss of water or water rights (including hunting, fishing, gathering, or cultural rights); all claims to title to land, including title to land as a result of the movement of water bodies; all claims relating to failure to make productive use of any land created by the movement of water bodies to which the Tribes has claimed title; and all rights, remedies, privileges, immunities, and powers not specifically waived and released under this Act or the Compact. Nothing in the Compact or this Act— affects the ability of the United States, acting as a sovereign, to take actions authorized by law, including any laws relating to health, safety, or the environment, including— the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ); the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ); the Federal Water Pollution Control Act ( 33 U.S.C. 1251 et seq. ) (commonly referred to as the Clean Water Act ); and any regulations implementing the Acts described in subparagraphs
(A)through (C); affects the ability of the United States to act as trustee for any other Indian tribe or allottee of any other Indian tribe; confers jurisdiction on any State court— to interpret Federal laws described in paragraph (1); to determine the duties of the United States or other parties under Federal laws described in paragraph (1); or to conduct judicial review of Federal agency action; waives any claim of a member of the Tribes in an individual capacity that does not derive from a right of the Tribes; revives any claim waived by the Tribes in the case styled Nez Perce Tribe v. Salazar, No. 06cv2239TFH (D.D.C. 2012); or revives any claim released by an allottee or a member of the Tribes in the settlement for the case styled Cobell v. Salazar, No. 1:96CV01285–JR (D.D.C. 2012). Each applicable period of limitation and time-based equitable defense relating to a claim described in this section shall be tolled for the period beginning on the date of enactment of this Act and ending on the date on which the amounts made available to carry out this Act are transferred to the Secretary. Nothing in this subsection revives any claim or tolls any period of limitation or time-based equitable defense that expired before the date of enactment of this Act. If all appropriations authorized under this Act have not been made available to the Secretary by January 21, 2031— the waivers under subsection
(a)shall have no force or effect; the authorization, ratification, and confirmation of the Compact under section 4(a) shall have no force or effect; the Tribes shall return to the United States, unless otherwise agreed to by the Tribes and the United States and approved by Congress— any unexpended Federal funds made available to carry out this Act, together with any interest earned on those funds; any water rights or contracts to use water under this Act; and title to other property acquired or constructed with Federal funds made available to carry out this Act; and the United States may offset any Federal funds made available to carry out this Act that were expended or withdrawn (except for Federal funds used to acquire or construct property that is returned to the United States under paragraph (2)), together with any interest earned on those funds, against any claims against the United States— relating to water rights in the State asserted by the Tribes or any users of the tribal water right; or in any future settlement of the water rights of the Tribes or allottees.
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