Sec. 10. Waivers and releases of claims
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Subject to the reservation of rights and retention of claims under subsection (c), as consideration for recognition of the Tribal Water Right and other benefits described in the Compact and this Act, the Tribes, acting on behalf of the Tribes and members of the Tribes (but not any member of the Tribes as an allottee), and the United States, acting as trustee for the Tribes and the members of the Tribes (but not any member of the Tribes as an allottee), shall execute a waiver and release of all claims with prejudice 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 such a right is recognized in the Compact and this Act.
Subject to the reservation of rights and the retention of claims under subsection (c), as consideration for recognition of the Tribal Water Right and other benefits described in the Compact and this Act, the United States, acting as trustee for allottees, shall execute a waiver and release of all claims with prejudice 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 such a right is recognized in the Compact and this Act.
Subject to the reservation of rights and retention of claims under subsection (c), the Tribes, acting on behalf of the Tribes and members of the Tribes (but not any member of the Tribes as an allottee), shall execute a waiver and release of all claims with prejudice against the United States (including any agency or employee of the United States)— relating to— 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 general stream adjudication in the State, except to the extent that such a right is 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 a failure to protect, acquire, replace, or develop water, water rights, or water infrastructure) within the State that first accrued at any time on or before the enforceability date; a failure to establish or provide a municipal, rural, or industrial water delivery system on the Reservation; a failure to provide— for operation, maintenance, or deferred maintenance for the Flathead Indian irrigation project or any other irrigation system or irrigation project; or a dam safety improvement to a dam within the Reservation; the litigation of claims relating to any water right of the Tribes in the State; and the negotiation, execution, or adoption of the Compact or this Act; reserved under subsections
(b)through
(d)of section 6 of the settlement agreement for the case entitled Nez Perce Tribe v. Salazar , No. 06cv2239TFH (D.D.C. 2012); that first accrued at any time on or before the enforceability date arising from the taking or acquisition of land or resources of the Tribes for the construction or operation of the Flathead Indian irrigation project; and encompassed within the Damages Report. Notwithstanding the confirmation of the water rights of the Tribes described in Appendices 28 and 29 to the Compact, as consideration for recognition of the Tribal Water Right and other benefits described in the Compact and this Act, the Tribes shall relinquish any right, title, or claim to the water rights located within the Flathead basin and described in those appendices. The water rights described in subparagraph
(A)shall be held solely by the State. The waivers and releases of claims 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 approved the Compact in a manner from which no further appeal may be taken; or if the Montana Water Court is found to lack jurisdiction, the applicable United States district court has approved the Compact as a consent decree from which no further appeal may be taken; all amounts authorized to be appropriated under section 9 have been appropriated; the State has appropriated and paid into an interest-bearing escrow account any payments due to the Tribes as of the date of enactment of this Act under the Compact and this Act; the Tribes have ratified the Compact; the Secretary has fulfilled the requirements of section 6; and the waivers and releases described in subsection
(a)have been executed by the Tribes and the Secretary. Notwithstanding the waivers and releases under subsection (a), the Tribes, acting on behalf of the Tribes and members of the Tribes, and the United States, acting as trustee for the Tribes and the allottees, shall retain— all claims relating to— the 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 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 rights to use and protect water rights acquired after the date of enactment of this Act; damages, losses, or injuries to land or natural resources that are— not due to loss of water or water rights (including hunting, fishing, gathering, or cultural rights); and not encompassed within the Damages Report; and all rights, remedies, privileges, immunities, and powers not specifically waived and released pursuant to this Act or the Compact. Nothing in the Compact or this Act— except as otherwise expressly provided in the Compact or this Act, reduces or extends the sovereignty (including civil and criminal jurisdiction) of any government entity; affects the ability of the United States to carry out any activity authorized by applicable law, 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 law regarding health, safety, or the environment; to determine the duties of the United States or any other party under Federal law regarding health, safety, or the environment; or to conduct judicial review of any 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 entitled Nez Perce Tribe v. Salazar , No. 06cv2239TFH (D.D.C. 2012); or revives any claim released by an allottee or member of the Tribes in the settlement for the case entitled 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 during 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. This Act shall expire in any case in which— the amounts authorized to be appropriated by this Act have not been made available to the Secretary by not later than— January 21, 2031; or such alternative later date as is agreed to by the Tribes and the Secretary; or the Secretary fails to publish a statement of findings under subsection
(b)by not later than— January 21, 2032; or such alternative later date as is agreed to by the Tribes and the Secretary, after providing reasonable notice to the State. If this Act expires under paragraph (1)— the waivers and releases under subsection
(a)shall— expire; and have no further force or effect; the authorization, ratification, confirmation, and execution of the Compact under section 4 shall no longer be effective; any action carried out by the Secretary, and any contract or agreement entered into, pursuant to this Act shall be void; any unexpended Federal funds appropriated or made available to carry out the activities authorized by this Act, together with any interest earned on those funds, and any water rights or contracts to use water and title to other property acquired or constructed with Federal funds appropriated or made available to carry out the activities authorized by this Act shall be returned to the Federal Government, unless otherwise agreed to by the Tribes and the United States and approved by Congress; and except for Federal funds used to acquire or construct property that is returned to the Federal Government under subparagraph (D), the United States shall be entitled to offset any Federal funds made available to carry out this Act that were expended or withdrawn, or any funds made available to carry out this Act from other Federal authorized sources, together with any interest accrued on those funds, against any claims against the United States— relating to— water rights in the State asserted by— the Tribes; or any user of the Tribal Water Right; or any other matter encompassed in the Damages Report; or in any future settlement of water rights of the Tribes or an allottee.
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