[Senate Report 112-218]
[From the U.S. Government Publishing Office]
Calendar No. 522
112th Congress Report
SENATE
2d Session 112-218
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A BILL TO AUTHORIZE THE MESCALERO APACHE TRIBE TO LEASE ADJUDICATED
WATER RIGHTS
_______
September 19, 2012.--Ordered to be printed
_______
Mr. Akaka, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 134]
The Committee on Indian Affairs, to which was referred the
bill (S. 134) to authorize the Mescalero Apache Tribe to lease
adjudicated water rights, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
PURPOSE
The purpose of S. 134 is to authorize the Mescalero Apache
Tribe to lease certain adjudicated water rights.
BACKGROUND
The Mescalero Apache Tribe (the ``Tribe'') owns water
rights that were adjudicated to it in State v. Lewis, 116 N.M.
194, 861 P. 2d 235 (1993). The Tribe and neighboring
communities experiencing water shortages have expressed an
interest in leasing a portion of the Tribe's adjudicated water
rights but lack the authority to do so. The Indian Non-
Intercourse Act\1\ has generally been understood to mandate
Congressional Authorization for a tribe to lease its water
rights.\2\
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\1\Codified at 25 U.S.C. Sec. 177.
\2\See Felix Cohen, Cohen's Handbook of Federal Indian Law, 1193
(Nell Jessup Newton, et al. ed., 2005 ed. 2005).
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NEED FOR LEGISLATION
Subject to certain limitation and conditions, S. 134 would
authorize the Tribe to lease or otherwise transfer all or a
portion of its adjudicated water rights to third parties for
use in the State of New Mexico.
Permitting the Mescalero Apache Tribe to lease its
adjudicated water rights would be mutually beneficial to the
Tribe and to non-Indian communities facing water shortages by
providing a mechanism whereby such communities can gain access
to water and by which the Tribe may receive an economic
benefit. The legislation is consistent with a federal policy of
respecting Tribal sovereignty and enables local decision-making
about the Tribe's water resources.
LEGISLATIVE HISTORY
On January 25, 2011, Senator Bingaman, for himself and
Senator Udall of New Mexico, introduced S. 134 which was
referred to the Committee. On October 20, 2011, the Committee
held a legislative hearing to consider S. 134 and other
measures.
SECTION-BY-SECTION ANALYSIS
Section 1. Short title
The short title of the Act is the ``Mescalero Apache Tribe
Leasing Authorization Act.''
Section 2. Definitions
This section defines the key terms in this Act. The defined
terms are ``Adjudicated Water Rights,'' ``Secretary,''
``State,'' and ``Tribe.''
Section 3. Authorization to lease adjudicated water rights
Section 3 states that the Tribe may lease, enter into
contract with respect to, or transfer to another party, any or
all of the adjudicated water rights; must comply with all state
laws with respect to leasing or transferring the water rights;
and may not permanently alienate any of the adjudicated water
rights.
Section 3 further states that the Secretary of the Interior
shall not be liable for any loss or detriment resulting from a
lease, contract, or other arrangement entered into pursuant to
this section; that the authority under the Act satisfies the
Indian Non-Intercourse Act (25 U.S.C. 177); and that non-use by
a lessee or contractor will not result in a forfeiture,
abandonment, relinquishment or other loss of the Tribe's
adjudicated water rights.
COMMITTEE RECOMMENDATION AND TABULATION OF VOTE
In an open business meeting on June 28, 2012, the Committee
on Indian Affairs, by voice vote, adopted S. 134 and ordered
the bill reported to the Senate, with the recommendation that
the Senate do pass S. 134 as reported without amendment.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated July 10, 2012, was prepared
for S. 134:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 10, 2012.
Hon. Daniel K. Akaka,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 134, the Mescalero
Apache Tribe Leasing Authorization Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 134--Mescalero Apache Tribe Leasing Authorization Act
S. 134 would authorize the Mescalero Apache Tribe of New
Mexico to enter into a lease or other temporary conveyance of
its water rights for up to 99 years. The bill would prohibit
the Mescalero Apache Tribe from permanently forfeiting their
water rights.
Based on information from the Department of the Interior,
CBO expects that the legislation would have no significant
impact on the agency's administrative costs. S. 134 would have
no effect on direct spending or revenues because any income
resulting from additional leases would be paid directly to the
Mescalero Apache Tribe. Therefore, pay-as-you-go procedures do
not apply.
S. 134 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would impose no costs on state, local, or tribal governments.
Enacting this legislation would benefit the tribe.
On October 31, 2011, CBO transmitted a cost estimate for
H.R. 1461, the Mescalero Apache Tribe Leasing Authorization
Act, as ordered reported by the House Committee on Natural
Resources on October 5, 2011. The two bills are similar and the
CBO cost estimates are the same.
The CBO staff contact for this estimate is Martin von
Gnechten. The estimate was approved by Peter H. Fontaine,
Assistant Director for Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires that each report accompanying a bill to
evaluate the regulatory and paperwork impact that would be
incurred in carrying out the bill. The Committee believes that
the regulatory impact of S. 134 will be minimal.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S.134.
CHANGES IN EXISTING LAW
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of S. 134 will not effect any changes in existing
law.