2. 19 "Person" means an individual, a partnership, a trust, an estate, a cmporation, a municipal corporation, a state or any political subdivision or instrumentality thereat: the United States or any political subdivision or instmmentality thereo4 or any other public or private entity.
2.20 "Secretary" means the Secretary of the Depattment of the Interior or his/her designee.
2.21 "Settlement Agreement" means this Agreement entitled "Tule River Tribe Reserved Water Rights Settlement Agreement Among the Tule River Indians of California, the Tule River Association, and the South Tule Independent Ditch Company, including exhibits A - E attached hereto.
I 2.22 ~South Tule Independent Ditch Company1' means the non-profit mutual water company incorporated in 1895 which provides water diverted from South Fork of the Tole River to its shareholders on lands downstream from the Tule River Reservation. The South Tule Independent Ditch Company's claims to water rights in the South Fork of the Tule River were adjudicated and fixed by a judgment of the Superior Court of Tulare County in the case of the Poplar Irrigation Company vs. A.A. Howard et al., dated September 11, 1916, a case in which neither the Tule River Tdbe nor the United States were parties. Unless otherwise indicated, for purposes of notification, "South Tule Independent Ditch Company" means the President of the Company or his/her designee.
2.23 "South Fork Tule River Basin" means that area of land, depicted on the map attached hereto as Exhibit B, within which the Tule River Tribe may nse federally reserved water rights subject to the terms of this Settlement Agreement.
2.24 "Transfer" means any authorization for delivery or use of water whether by a joint vennrre, service contract; lease, or other similar time-limited agreement.
2.25 "Tule River Tribe" or Tribe" means the Tule River Indians of California, a federally recognized Indian tribe, occupying the 1\!le River Indian Reservation. Unless otherwise indicated, for purposes of notification, '
1 Tu]e River Tribe" or "Tribe" means the Chairman of the Tule River Tribal Council or his/her designee.
2.26 "Tdbal Water Right'' means cumulatively all those reserved water rights of the Tule River Tribe which are confinned by Article 3 of this Agreement.
2.27 "Tribal Water Right cap" means the maximum amount of water from the South Fork Tule River and its tributaries that the Tribe has a right annually to divert and use, or pennit the diversion and use of, subject to the terms and conditions of this Settlement Agreement; this maximum amount is set by this Agreement at 5,828 AFY.
2.28 "Tule River Association" means the association formed by agreement in 1965, the members of which are representatives of all pre-1914 appropriative and certain riparian water righi holders of the Tule River at and below the Success Dan1 and Reservoir. The Tule River Association includes the Pioneer Water Company, Vandalia In-igation District, Porterville Irrigation District, and Lower Tule River lITigation District. Unless otherwise indicated, for purposes of notification, "Tule River Association" means the Secretary of the Association/Water Master of the Tule River or his/her designee.
2.29 "United States" means the federal government and all its officers, agents, agencies, departments and political subdivisions thereof Unless otherwise indicated, for purposes of notification, "United States" means the Secreta,y of the Department of the Interior or his/her designee.
ARTICLE 3 - TRIBAL WATER RIGHT
The federally reserved water rights of the Tule River Tribe arc set forth in this article.
3.1 1922 Agreement Superseded
The Agreement of May 3, 1922, between the United States of America, acting in behalf of the Tribe, and the South Independent Ditch Company shall remain in effect until the Phase I Reservoir becomes operational at which time this Settlement Agreement shall supersede the 1922 Agreement._ln the event this Settlement Agreement is invalidated for any reason by a court of competent jm·isdiction anytime after its effective date, the 1922 Agreement shall be reinstated. · 3 .2 Quantification, Diversion, and Use
A. Surface Water
(I) Diversion Right
Subject to the terms and conditions set forth in this Agreement, the Tule River Tribe shall have the right to divert or use or permit the diversion or use of up to 5,828 AFY of su1face water from the South Fork Tule River. (2) Limitations.
B. Springs
(a) Once the Phase r Reservoir becomes operational, the Tribe shall not divert nor pe1mit tl!e diversion of surface water from the Soutl! Fork of the Tule River and its tributaries upstream of the Phase I Reservoir; nor shall tl!e Tribe divert or permit tl!e diversion of surface water from the South Fork of the Tule River and its tributaries downstream of tl!e Phase I Reservoir to the western boundary of the Original Reservation, provided that,
(i) di minimus diversions shall be permitted for stock watering purposes; and
(ii) reasonable diversions shall be permitted for emergency purposes such as firefighting or a temporaiy failure in the municipal delivery system; however, during ]ow flow periods, as described in Exhibit E.I.A., when diversions for emergency purposes continue beyond a twenty-four (24) hour period, the Tribe shall, beginning with the first daily Reservoir release adjustment following the end of the twenty-four (24) hour period, release an additional amount of water from the Phase I Reservoir equivalent to the ainount diverted during that period; such additional releases shall continue in the same manner until the emergency diversion or the low flow period ends.
(b) Once the Phase I Reservoir becomes operational, Tribal diversions from the South Fork Tule ruver shall not exceed tl!e state-law based appropriative right or riparian waterright attached to the land; however, if the Tribe acquires fee or trust title to land between the western boundary of the Original Reservation and STIDC's point of diversion, the Tribe shall obtain the consent of STIDC before diverting surface water from this reach of the Soutl! Fork of the Tule River.
The Tribe shall have the right to divert or use or permit the diversion or use of all water from springs originating within the exterior boundaries of the Original Reservation, Page4
subject to the terms and conditions stated in this Agreement, including the following provisions.
(I) Existing Spring Diversions.
The Tribe shall have the right to continue existing diversions of water from springs within the exterior boundaries of the Original Reservation. A map depicting the location of existing springs with diversion rates and annual usage is attached hereto as Exhibit C. Such continued diversions and uses of water from existing springs shall not provide grounds for amendment of the Phase I Operation Rules.
(2) New Spring Diversions
(a) Within the Original Reservation
The Tribe shall have the right to new diversions of water from springs within the exterior boundaries of the Original Reservation subject to the following limitations.
(i) Spring water diverted and used for water bottling purposes shall be limited to I 00 AFY; and
(ii) Any spring water diversion where the point of diversion is located within the zone depicted on the map attached hereto as Exhibit D shall be limited to 200 gpm (0.45 cfs).
(b) Off the Original Reservation
New diversions of water from springs located on lands owned by the Tribe off the Original Reservation between the western boundary of the Original Reservation and South Tule Independent Ditch Company's point of diversion and within the zone depicted on the map attached hereto as Exhibit D shall be limited to 200 gpm (0.45 cfs).
(3) Accounting for Spring Water Diversions.
All diversions of water from springs located on lands owned by the Tribe within the Original Reservation boundaries shall be accounted for and the amount diverted shall be charged against the Tribal Water Right cap; provided that, spring water diverted. for domestic use by occupants of seasonal, vacation, or other temporary residences shall not be measured nor otherwise accounted for nor charged against the Tiibal Water Right cap. For spring water diversions that are not measured by a meter or gage or other similar device, the accounting shall be in accordance with the following:
(a) Livestock Watering Use
The amowit of spring water diverted for livestock watering shall be deemed to be 12 gallons per day per animal unit as defmed in the Tribe's range ordinance. (b) Domestic Use
The amount of spriJ1g water diverted for domestic use by an occupant or occupants of a single family pennanent residence shall be deemed to be 0.3 AFY; provided that, diversions of water from a single spriJ1g for use by
occupants of four or more single family permanent residences shall be measured by an appropriate measuring device.
(c) Other Uses
The amount of spring water diverted for uses other than those· specified in 3(a) and 3(b) above shall he accounted for by an appropriate measuring device and shall be charged against the Tribal Water Right cap.
C. Gmundwater Withdrawals
(1) On the Original Reservation
(a) Subject to the terms and conditions of this Agreement; the Tribe shall have the following rights:
(i) To withdraw and use or permit the withdrawal and use of groundwater originating within the exterior boundaries of the Original Reservation; and
(ii) To withdraw water from all existing wells at the pumping rates listed in Exhibit C attached hereto.
(h) The Tribe shall not drill any new wells within the Groundwater-Surface Water Interaction Zone depicted on the map attached as Exhibit D; however, new wells may be drilled outside those zones as depicted on the map attached as Exhibit D.
(c) Groundwater withdrawn from wells located within the GroundwaterSurface Water Jnteracti.on Zone· depicted on- the map attached as Exhibit D shall be measured and counted against the Tribal Water Right cap; groundwater withdrawn from all other wells shall not be measured and counted against the Tribal Water Right cap. (2) Off the Original Reservation
D. Storage
The drilling of new wells on lands owned by the Tiibe off the Original Reservation and located between the western boundaiy of the Original Reservation and South Tule Independent Ditch Compai1y's point of diversion and within the Groundwater-Surface Water Interaction Zone Extended depicted on the map attached as Exhibit D shall be subject to the consent of the South Tule Independent Ditch Company.
The Tiibe shall have the 1ight to store, or pern1it the storage of water sufficient to enable the Tiibe to put its quantified right to use from the flow of the South Fork of the Tule River subject to the tenns and conditions set forth in this Settlement Agreement.
E. Conveyance Losses
Losses due to the conveyance of water from a point of diversion shall be counted against the Tribal Water Right cap by measuring the quantity of water diverted at the point of diversion.
§ 3.3 Place of Use
A. The Tribe shall have the right, with no restriction on purpose of use, to use or permit the use of up to 5,828 AFY of surface water from the South Fork Tule River and its tributaries anywhere within the Original Reservation; and B. The Tribe shall have the right, witl1 no restriction on purpose of use, to use or permit the use of up to 2000 AFY, of the 5,828 AFY cap, from surface water from the South Fork Tule River and its tributaries off the Original Reservation to serve lands owned in fee or in trust by the Tribe at the time this Agreement is approved by Congress, or subsequently acquired by the Tribe within tl1e South Fork Tule River Basin depicted on the map attached hereto as Exhibit B, provided that,
3.4 Storage
(I) any off Original Reservation use shall be counted against the Tribe's 5,828 AFY cap; and
(2) any delivery of water from an on-Original-Reservation reservoir to an offOriginal-Reservation parcel shall be by off-stream conveyance; and A. The Storage Right
The Tribe shall have the right to construct reservoirs on the Original Reservation for the purpose of utilizing its Tribal Water Right subject to the terms and conditions set forth in this§ 3.4.
B. Phase I Reservoir
The Tribe shall have the right to construct a Phase I reservoir on the Original Reservation for DCM! and irrigation purposes with a capacity not to exceed 5,000 af, subject to operation rules agreed to by the parties to this Settlement Agreement. (I) Phase I Reservoir at Confluence of Cedar Creek and tl1e South Fork of the Tule River
The site initially selected for construction of the Phase I Reservoir is at the confluence of Cedar Creek and the South Fork oftbe Tule River. (a) Phase I Reservoir Operation Rules Application and Effectiveness. (i) Application
(ii)
The Reservoir Operation Rules set forth as Exhibit E, attached hereto, shall apply to the Phase I Reservoir proposed to be constrncted at the confluence of Cedar Creek and the South Fork of the Tule River.
Effectiveness
The Phase I Reservoir Operation Rules shall become effective when the Phase I Reservoir becomes operational.
(b) Phase I Reservoir Operation Rules Committee
(i) Creation.
Page7
A Phase I Reservoir Operation Rules Committee is hereby created to enable amendment of the Phase I Reservoir
Operation Rules, in accordance with the tern,s set forth in 3.4.
B.(l)(b)(iv).
(ii) Membership.
The Committee shall consist of three members. The Tule
River Tribe, the Tule River Association, and the South Tule Independent Ditch Company shall each appoint one member, and an alternate who shall be available to serve in the absence of the Party's member. The Tribe, the Tule River Association, and the South Tule Independent Ditch Company shall notify each of the other parties in writing of the names of the appointed member and alternate.
(iii) Action.
The Phase I Reservoir Operation Rules Committee shall
decide by unanimous vote.
(iv) Enumerated Powers.
The Phase l Reservoir Operation Rules Committee shall have the power to make changes to the Phase I Reservoir Operation Rules only in the following enumerated areas:
[a] Perioilically review the determination of the October - February cumulative flow at gage 3580 that
corresponds to the sixty percent (60%) exceedance
flow and make adjustments; and
[b] Periodically review the methodology for predicting
"dry years" ( currently by cumulating OctoberFebruary flow at gage 3580 and comparing this value to the sixty percent (60%) exceedance flow) and
change as appropriate if a better methodology is
agreed upon by the Committee; and
[c] Periodically review the accuracy and repotting of the pertinent flow/diversion/storage/release
measurements and make modifications, if necessary.
[d] Authorize any emergency operation measures for
safety/fire reasons.
[e] Periodically review the estimate of reservoir
evaporation and make modifications, if necessary.
(2). Phase I Reservoir at Substitute Site
(a) If the site at the confluence of Cedar Creek and the South Fork of the Tule River is not a feasible site for the Phase I Reservoir and the Tribe identifies a substitute site or sites, the parties shall negotiate, in good faith, mutually acceptable operation rules which will apply to the reservoir or reservoirs to be constructed at the substitute site or sites.
Such negotiations shall be initiated upon the request of the Tribe and shall proceed expeditiously.
(b) The reservoir operation rules to be negotiated for the Phase I Reservoir at the substitute site or sites shall be consistent with the following terms, conditions, and principles:
(i) The operation rules should result in a flow in the South Tule River which honors the diversion limits set forth in the 1922 Agreement Minimum releases from the Tribal reservoir or reservoirs shall be negotiated as necessary to achieve this result.
(ii) A Reservoir Operation Rules C01mnittee shall be created to enable limited amendment of the Reservoir Operation Rules applicable to the Phase I Reservoir at the substitute site or sites.
[a] The Reservoir Operations Rules Committee shall
consist of three members with the Tule River Ttibe,
the Tule ruver Associatio~~ and the South Tule
Independent Ditch Company appointing one member
each, and an alternate who shall be available to serve
in the absence of the appointed member. The Tribe,
the Tule River Association, and the South Tule
Independent Ditch Company shall notify each of the
other parties in writing of the names of the appointed
member and alternate.
[b] The Reservoir Operation Rules Committee shall have
the power to make changes to the Phase I Reservoir
Operation Rules only in those areas specifically listed by the paities in the Reservoir operation rules.
[c] The Reservoir Operation Rules Committee shall
decide. by unanimous vote.
(iii) Any instream releases from the Phase I Reservoir at the substitute site or sites may be suspended by the Tribe when the water level in the reservoir reaches the dead pool level plus 120 af, so long as the Tribe's water use has not exceeded 5,828 AFY pursuant to the terms and conditions of this
Agreement pertinent to accountability of water use.
(iv) The outflow from the Phase I Reservoir at the substitute site or sites shall be measured at the outlet works of the dam or in the South Fork Tule River immediately downstream of the Phase I reservoir at the discretion of the Tribe.
(c) If an impasse is reached in negotiations of reservoir operation rules applicable to the Phase I Reservoir at a substitute site or sites due to the failure of the Tribe, South Tule Independent Ditch Company, or the Tule River Association to enter into negotiations; or, once negotiations commence, if an impasse is reached due to a failure by one or more of the three parties specified above to agree on such operation rules, the impasse_ shall be resolved in accordance with .Article 8, Dispute Resolution.
C. Future New or Enlarged Reservoirs
(I) The Tribe shall have the right to construct a new reservoir or reservoirs, or to enlarge an existing reservoir or reservoirs, so long as such reservoir or reservoirs do not cause the Tribe's surface water use to exceed 5,828 AFY pursuant to §
3.2.A.(1) of this Agreement.
(2) The operation rules for any such new or enlarged reservoir or reservoirs shall be negotiated in good faith among the Tribe, the Tule River Association, and the South Tule Independent Ditch Company. Such negotiations shall be initiated upon the request of the Tribe and shall proceed expeditiously. The operation rules as negotiated shall result in a flow in the South Tule River which honors the diversion limits set forth in the I 922 Agreement. Minimum releases from the Tribal reservoir or reservoirs shall be negotiated as necessaty to achieve this result. If an impasse is reached due to the failure of any party to enter into negotiations or, during negotiations, to reach agreement on such operation rules, the impasse shall be resolved in accordance with Article 8, Dispute Resolution.
D. Accountine: for Evaporation and Conveyance Losses.
(!) Evaporation Losses from Phase I Reservoir.
(a) Losses of stored water due to evaporation attributable to that proportion of the Phase I reservoir which is necessary to serve the Tribe's Phase I project water demand of 1,830 AFY shall be charged against the Tribal Water Right cap, and losses due to evaporation attributable to that proportion of the Phase I reservoh- which is necessary to comply with mitigation agreements set forth in the Phase I Reservoir Operation Rules shall not be charged against the Tribal, Water Right cap. (b) Evaporation losses from the Phase I Reservoh- shall be calculated using a method agreed upon by the Phase I Reservoir Operations Committee.
The amount of evaporation loss to be charged against the Tribal Water Right shall be the total amount of evaporation losses less 22 AFY, which represents the amount of reservoir evaporation chargeable to mitigating agreements set forth in the Phase I Reservoir Operation Rules.
(2) Evaporation Losses from Future Reservoir(s).
(3)
The administration of evaporation losses from future new or enlarged reservoirs shall be negotiated in good faith among the Tribe, the Tule River Association, and the South Tule Independent Ditch Company during the planning and design stage of the project.
Conveyance Losses.
Losses due to the conveyance of water from the Phase I Reservoir to the various service locations shall be counted against the Tribal Water Right cap.
3.5 Administration and Transfer of Tribal Water Right
A. Priority Date. The Tribal Water Right shall be administered exclusively in accordance with the tenns of this Settlement Agreement and not according to priority date.
Page IO
B.
C.
D.
Purpose of Use. The Tribe shall have the right to divert, store, and consume, or pennit the diversion, storage or consumption, of the Tribal Water Right for any beneficial purpose as defmed by Tribal law, subject to the tenns and conditions of this Settlement Agreement.
Persons entitled to Use the Tribal Water Right. The Tribal Water Right may be used by the Tribe and all persons authorized by the Tribe, subject to the terms of this Settlement Agreement.
Transfer ofti1e Tribal Water Right.
The Tribe sball not transfer the Tribal Water Right, except as may be provided in this Settlement Agreement, including any amendment thereto.
E. Effect of Non-Use of the T1ibal Water Right. Non-use of all or any of the Tribal Water Right shall not constitute a relinquishment, forfeiture, abandomnent of the right. Except as specifically provided herein, state law doctrines relating to the use of water rights, including but not limited to relinquishment, forfeiture, or abandomnent, do not apply to the Tribal Water Right..
F. Trust Status of Tribal Water Right. The Tribal Water Right shall be held in trust in perpetuity by the United States for the benefit of the Tribe.
G. Measuring Devices: Accessibility and Inspection of Records (I) Gage Stations: Prior to tl1e construction of the Phase I Reservoir, the Tribe shall be responsjble for_ the operation and maintenance associated with gage stations 3580 and 4100. Once the Phase I Reservoir is constructed, the United States Geological Service (USGS) shall be responsible for operation and maintenance associated with gage station 3580. However, with regard to gage station 4100, the USGS shall be responsible for operation and maintenance associated with that gage station for a minimum period of one year from the date construction of the Phase I Reservoir is completed. Gage station 3580 shall be operated and maintained indefinitely. Gage station 4100 may be discontinued by the USGS after a period of one year from the date constmction of the Phase I Reservoir is completed.
(2) Other Measurin2 Devices: Once tl1e Phase I Reservoir is constructed, the USGS shall be responsible for operation and maintenance associated with the reservoir storage gage, the dam outflow gage, the Tribal water system gage, and tl1e Reservoir evaporation gage.
(3) Maintenance of Records from Gages and Other Measuring Devices Operated by the USGS:
With regard to gage station 3580 and other measuring devices listed in (2) above, the USGS shall continuously maintain or cause to be maintained daily records produced by those devices. With regard to gage station 4100, the USGS shall maintain or cause to be maintained daily records produced by that gage for one year after the Phase I Reservoir is constructed.
(4) Inspection of Tribal Diversions and Measuring Devices Operated by the Tribe (a) Inspection
Any party to this Settlement Agreement shall be allowed to inspect:
(i) Gages; and
(ii) Other measuring devices operated by the Tribe; and (iii) All Phase I Reservoir storage records, including records of operation, inflow, outflow, and evaporation, provided that, such inspections shall not occur dm-ing weekends, holidays and other days that the Tribal offices are closed; and
(iv) The River channel of the South Fork of the Tule River downstream from the reservoir outlet works to the western Original Reservation boundary, and, the river channel between the western Original Reservation boundary and STIDC's
diversion point, to the e:Ktent that the Tribe in the future acquires ownership of land riparian to the River between the western Original Reservation boundary and ST!DC's
diversion point.
(b) Advance Notice to Tribe
(i) Before undertaldng to access and inspect any records pertaining to water measuring devices in the Tribe 1s custody, see (i) - (iv) of 3.5 G.(4)(a) above, the inspecting party or parties shall provide the Tribe with advance notice of at least 48 hours excluding weekends and holidays, and
(ii) Before undertaking to access and inspect measuring devices or water diversions covered by 3.5 G.(4)(a)(i),(ii) and (iv) above, and, in consideration of Tribal safety and security concerns, the inspecting pmty or patties shall provide the Tribe with advance notice of at least 3 hours,
(5) Tribal Contact for Purposes of Accessing and Inspecting Gages; For purposes of providing advance notice of inspection of gages and records, parties to this Settlement Agreement shall contact the Tribal Chabman or his delegate. If the Tribal Chairman delegates this function) he/she shall provide written notice to all parties to this Settlement Agreement of the contact person.
H. Tribal Water Code; Subject to the limitations imposed by this Agreement and federal law, the use of the Tribal Water Right may be administered by the Tribe pursuant to a Tribal Water Code.
I. Enforcement of Diversion Restrictions by the Tribe
The Tribe shall enforce the restrictions on diversions set forth in this Agreement on lands owned by the Tribe, whether in fee or in trnst, and located upstream of South Tule Independent Ditch Company's point of diversion. The aforementioned restrictions on diversions shall be enforced as to all persons on such Tribal lands.
ARTICLE 4- FEDERAL CONTRIBUTION TO SETTLEMENT
4.0 Federal Contribution to Settlement
The patties agree to recommend the following funding for administration and mitigation necessary to implement the Agreement to the Congress for appropriation on a schedule consistent with implementation as contemplated in this Agreement:
4.1 Phase I Dam and DCMI Water Supply System Fund
A. The United States will provide funds to construct a Phase I Dam and DCM! water distribution system adequate to meet the future DCM! water needs of the Tribe.
B. The United States will also pay for annual operatiqn and maintenance costs associated with the Dam and water supply system~ including operation and maintenance of gages and other measuring devices. Such costs for annual operation and maintenance shall be included in the annual programmatic budget for the Department of the Interior.
4.2 Provision of a Tule River Tribe Water Right Development Fund The United States will provide a Tribal Water Right Development Fund in an amount agreed upon by and between the Tribe and the United States. These funds shall not be distrfbuted on a per capita basis to members of the Tribe and shall only be used to develop the Tribe's federally reserved water right confinned by this agreement. The T1ibe may expend the Tribal Water Right Development Fund pursuant to a management and expenditure plan approved by the Secretary.
ARTICLE 5- DISCLAIMERS AND RESERVATIONS
5. l General Disclaimers.
Nothing in this Agreement shall be so construed or interpreted:
A. To preclude the acquisition of a right to the use of water by the Tribe or by any member of the Tribe outside the Original Reservation whether the right is acquired directly by purchase, or through the acquisition of land or by other types of acquisition; however, it is agreed that the Tribe will make no downstream claitns to the minimum water releases from its Phase I Reservoir, described in §§ I. A. and B. of Exhibit E, except to the extent that such claims are based upon the Tribe's rights as a shareholder of the South Tule Independent Ditch Company.
B. To detennine tl1e relative rights inter sese of persons using water under the authority of the State or the Tribe;
C. To limit in any way the rights of the parties or any other person to litigate any issues or questions not resolved by this Agreement;
D. To create or deny substantive rights through headings or captions used in this Agreement; E. To preclude or to discourage the Ttibe from acquiting, by contracting or by other means, water rights in addition to the rights acquired under this Agreement from any existing or future federal storage facilities off the Reservation;
F. To prohibit the Tribe, or the United States on behalf of the Tribe, from objecting in any stream adjudication in California comts to any claims to water rights not protected by this Agreement, or to prohibit any other party to this agreement from asserting any claim or defense in any such adjudication;
G. To constitute a waiver of sovereign itnmunity by the Ttibe or United States, except as expressly set forth in this Agreement or as set forth in federal law, including; but not limited to, circumstances where the Tribe or the United States exercise their rights to
object to, or intervene in, any stream adjudication in California courts pursuant to 5.1. F above;
H. Unless otherwise provided by Congress, to prevent the United States, as trustee for the Tribe, or the Tribe itself, from filing an action in any court of competent jurisdiction, to prevent any party from interfering with the Tribe in the enjoyment of any water right in this Agreement.
5 .2 Rights Reserved
The parties expressly reserve all rights not granted, recognized or relinquished in this Agreement.
ARTICLE 6-FEDERAL LEGISLATION
6.1 All parties agree to cooperatively support and seek enactment of any federal legislation necessary to ratify this Agreement; to effectuate all provisions and purposes of this Agreement; and to defend the provisions and purposes of this Agreement from all challenges; provided that, no provision of tl1is Agreement shall be modified by any such legislation as to substance except as may be provided herein. ·
6.2 All parties agree to cooperatively support and seek enactment of language in the federal legislation ratifying this Agreement that authorizes and funds a Rese1vation municipal, nrral and industrial water system adequate to meet the current and future DCM! water needs of the Tribe, according to the needs and population projections as set forth in the Water Needs Assessment for the Tule River Indian Reservation.
6.3. All parties agree to cooperatively support and seek language in the federal legislation ratifying this Agreement that expressly authorizes the parties to amend this Agreement in accordance with any terms and limitations in the Agreement without further ratification by Congress. Except as otherwise provided by this Settlement Agreement, any amendment of the Agreement shall be by unanimous consent of the parties to this Agreement.
6.4. All parties agree to cooperatively support and seek language in the federal legislation ratifying this Agreement that(]) confers jurisdiction on the United States District Court for the Eastern District of California to review and consider whether to approve or disapprove this Settlement Agreement and to issue a fmal decree approving or disapproving the Agreement; and (2) requires that the Settlement Agreement shall not take effect and be binding upon the parties to the Agreement until the approved Settlement Agreement is incorporated by the Court in a final consent decree.
6.5 Article 6 shall take effect upon signing by all parties to this Settlement Agreement.
ARTICLE 7 - FINALITY, SETTLEMENT OF CLAIMS,
AND EFFECTIVENESS OF AGREEMENT
7.1 Ratification and Effectiveness of Agreement
With the exception of the stipulations in Article 6, the contingency set forth in § 7.2, and the stipulations in §§ 8. 1.B and 8.2.B., and except as may be otherwise specifically provided in this Agreement, this Agreement shall become effective on the later of the following dates: (]) the date the federal funds, required by §§ 4.1.A and 4.2, are authorized by the federal act ratifying act are fully appropriated and paid to the Tribe, or (2) the date 011 which the Settlement Agreement has been approved by a final judgment and decree of the United States District Court for the Eastern District of California pursuant to§ 7.4.A. of this Agreement. Article 6 and§ 7.2, and§§ &.l.B. and 8.2.B. shall take effect immediately upon the signing of this Settlement Agreement by the parties.
7.2 Tribal Performance of Obligations Contingent
Tribal perfonnance of any obligation assumed under this Agreement which depends upon the appropriation of funds by Congress and the payment of such funds to the Tribe shall be contingent on such appropriation and payment; except that, once the Phase I Reservoir is operational, the Tribe shall release the minimum flow required by Exhibit E without regard to the availability of federal funds. No liability shall accrue to the Tribe for failure to perfonn an obligation under this Agreement where funds necessaty to enable such performance are not appropriated or paid.
7.3 Waiver and Release of Claims
A. By the Tule River Tribe
The Tribe, in consideration of benefits realized under this Agreement and under the Acts of Congress ratifying this Agreement, authorizing the appropriation of funds, and appropriating such funds, hereby waives and releases the following claims:
(1). Against the Settling Parties
(a). All claims, counterclaims, defenses, or causes of action related to federally reserved water rights arising on the Original Reservation that the Tribe or the United States as trnstee for the Tribe could assert in any comt proceeding against the Tule River Association and its successors and assigns; the South -Tule Independent Ditch Company and its successors and assigns, and any and all other patties who sign this Settlement Agreement; and
(b). All claims, counterclaims, defenses, or causes ofaction for damages, losses or injuries to federally reserved water rights arising on the Original Reservation that accrued up to and including the effective date of this Agreement or the enh-y of a final decree approving this Agreement by the United States District Court for the Eastern District of California, whichever is later, that may or may not be fully known, that the Tribe or the United States as trustee for the Tribe either asserts or could have asserted in any court proceeding against the Tule River Association and its successors and assigns; the South Tule Independent Ditch Company and its successors and assigns, and any and all other parties who sign this Settlement Agreement.
(2) Against The United States
( a) All claims, counterclaims, defenses, or causes of action that the Tribe may have against the United States, its agencies, or employees, arising out of claims of rights to federally reserved water rights arising on the Original Reservation that the United States could have asserted in any court proceeding;.
(b) All claims} counterclaims, defenses, or causes of action for damages, losses or injuries to federally reserved water rights arising on the Original Reservation, including claims of unlawful interference, diversion or taking of water; or claims of failure to protect such rights, that accrued up to and including the entry of a fmal decree by the
United States District Court for the Eastern District of California, tl,at may or may not be fully known, that the Tribe may have or could have asserted against the United States, its agencies, or employees in any court proceeding;
(c) All claims, counterclaims, defenses, or causes of action arising out of':
resulting from or relating in any manner to the negotiation, execution or adoption of this Settlement Agreement, exhibits or appendices to the Settlement Agreement, a final decree entered by the United States District Court for the Eastern District of California, or any specific tenns and provisions thereof, that the Tribe may have or could have asserted against the United States, its agencies, or employees in any court proceeding.
B. By Settling Parties Against the Tribe and the United States The Tole River Association and its successors and assigns; the South Tule Independent Ditch Company and its successors and assigns, and any and all other parties who sign this Settlement Agreement, in consideration of benefits realized under this Agreement and under the Acts of Congress ratifying this Agreement, authorizil1g the appropriation of funds and appropriating such funds, hereby waive and release the following clailns:
(1) All claims, counterclailns, defenses, or causes of action related to waters rights in the South Fork of the Tule River and its tributaries, that the Tule River Association and its successors and assigns; the South Tole Independent Ditch Company and its successors and assigns, and any and all other parties who sign this Settlement Agreement may assert or could have asserted in any court proceeding against the Tribe or the United States as trustee for the Tribe; and (2) All claims, counterclaims, defenses, or causes of action for damages, losses or injuries to water rights in the South Fork of the Tule River and its tributaries, or clain1S of interference or taking of such rights that accrued up to and including the effective date of this Agreement pursuant to § 7.1 of this Agreement, that may or may not be fully known, that the Tule River Association and its successors and assigns; the South Tule Independent Ditch Company and its successors and assigns, and any and all otl1er parties who sign this Settlement Agreement may assert or could have asserted against the Tribe or the United States as trustee for the Tribe in any comt proceeding.
C. Reservation of Rights not Waived
Notwithstanding the waivers and releases set forth above, the Tribe and the United States as tt·ustee for the Tribe, the Tule River Association and its successors and assigns; the South Tule Independent Ditch Company and its successors and assigns, and any and all other parties who sign this Settlement Agreement shall retain:
(I) All claims of water rights or iitjuries to water rights for water sources other than water rights in the South Fork of the Tule River and its tributaries; (2) All claims for enforcement of this Settlement Agreement or the final decree entered by the United States District Court for the Eastern District of California, through such legal and equitable remedies as maybe be available under this Agreement or other applicable law;
(3) All claims relating to the quality of water or relating to activities affectiug the quality of water;
( 4) All rights, remedies, privileges, immunities and powers not specifically waived and released under the tenns of this Settlement Agreement or the final decree entered by the United States Disn·ict Court for tl1e Eastern District of California.
D. Effoctive Date of Waivers and Releases
The waivers and releases described in this section shall take effect on the date that this Settlement Agreement becomes binding and effective pursuant to § 7.1 of this Agreement,
7.4 Binding Effect
A. Judicial Approval of Settlement Agreement
This Settlement Agreement shaJl be reviewed and either approved or disapproved by the United States District Court for the Eastern District of California. Accordingly, the parties agree to seek to include provisions in the congressional act ratifying this Settlement Agreement that:
(I) makes congressional ratification contingent upon a final judgment and decree approving this Settlement Agreement entered by the United States District Court for the Eastern District of California; and
(2) directs the Secretary of the Interior to file suit in the United States District Court for the Eastern District of California requesting the entry of a final court judgment and decree approving the Agreement; and
(3) directs the Secretary of the Interior, upon ently of a final judgment and decree approving the Agreement, to sign it; and
(4) declares the Settlement Agreement to have the force and effect of Federal law for the purposes of judicial approval of the Agreement and of enforcement of the rights and obligations of the parties; and
(5) declares that the jurisdiction of tl1e United States District Court for the Eastern Disb·ict of California shall be exclusive.
B. Parties Bound. Upon the effectiveness of any provision of this Agreement, the terms of that provision will be binding:
(]) Upon the Tribe and any person or entity of any nature whatsoever using, claiming or in any manner asserting any right under the authority of the Tribe to the use of the Tribe's federally reserved water rights, or any right arising under any doctrine ofreserved or aboriginal water rights for the Tribe; provided that, the validity of consent, ratification or authorization by the Tribe is to be determined by tribal law; and
(2) Upon the United States and any person or entity of any nature whatsoever using, claiming or in any manner asse1ting any right under the authority of the United States to the use of water in the State ofCalifornia;provided that, tl1e validity of consent, ratification or authorization by the United States is to be determined· by federal law; and further provided thati nothing contained in this Agreement affects any claim of any Indian tJ·ibe other than the Tule River Tribe, or of persons claiming water through any such other Indian tribe, or the right of any
Indian tribe other than tl1e Tule River Tribe, or persons claiming water through any such other Indian tribe, to pursue a claim to any water from any source based on any theory ofright or entitlement.
(3) Upon all non-tribal persons who are signatories to this agreement and any person or entity of any nature whatsoever using, claiming or in any manner asserting any right under fue authority of such non-tribal signatories to the use of water in the State of California.
ARTICLE 8- DISPUTE RESOLUTION
&. I Actions Seeking Interpretation or Enforcement of the Settlement Agreement A If a dispute concerning the interpretation or enforcement of the terms of this Settlement Agreement arises among the parties to this Agreement, the parties shall make a diligent good faith effort to resolve the dispute among them by agreement. However, if after diligent good faith negotiations, the parties are unable to reach agreement, any party may petition the United States District Comt for the Eastern District of California to resolve the dispute.
B. The parties agree to seek language in the act ratifying this Settlement Agreement conferring jurisdiction on the United States District Court for the Eastern District of Califomia over any cause of action initiated by any party to this Settlement Agreement arising from a dispute over the interpretation of this Settlement Agreement, and any cause of action initiated by any party to this Settlement Agreement for the enforcement of thls Settlement Agreement. The parties agree to support language in tl1e act ratifying thls Settlement Agreement which waives the sovereign hmnunity of the United States for purposes of such actions.
8.2. Actions Seekh1g Relief from Failure to Negotiate or to Agree on Operation Rules A, If any party to this Settlement Agreement fails to enter into negotiations with the other parties for the purpose of establishing operation rules for any reservoir on the Reservation, other than the Phase I Reservoir; or if after diligent good faith negotiations, the parties fail to reach agreement on operation rules for any reservoir, any party may petition the United States District Court for the Eastern District of California to appoint a mediator to resolve the impasse as set fortliin B. next.
B, The parties agree to seek language in the act ratifying this Settlement Agreement which accomplishes the following:
(]) Confers jurisdiction on the United States District Court for the Eastern District of California over any cause of action initiated by any party to this Settlement Agreement arising from the failure of any party to enter into negotiations in good faith for an agreement establishing operation rules for any reservoir to be constructed on the Reservation, or, after diligent good faith negotiations, the failure of the parties to reach agreement on operation rules for any reservoir; and (2) Establishes a procedure under which a mediator is appointed by the Comt to assist the parties in resolving issues regarding operation rules for any reservoir, if the Court finds that fuat either
(a) a party or patties did not respond in good faith to a request to negotiate reservoir operation rules; or
(b) the parties entered into good faith negotiations for a reasonable amount of time but failed to reach agreement on operation rules for any reservoir,
(3) Authorizes the Court, if Court appointed mediation does not, after a reasonable amount of time as detennined by the Court, result in an agreement among the parties, to select a set of reservoir operation rules from among sets of reservoir operation rules submitted by the parties, and notify the paities of such selection. (a) The Court, after hearing evidence submitted by the partjes to this Agreement, shall employ the following standard in determining which set ofreservoir operation rules shall be .selected: the Court shall select the proffered set of operation rules which, if implemented, would be the most effective:
(i)
(ii)
(iii)
in regulating the flows in the South Tule lliver to comply with the following diversion limits:
Where the South Tole Independent
Ditch Company's point of diversion is
The Tribe has a right the point of measurement and where the natural flow of the river is: to:
<3 cfs I cfs
> 3 cfs ai1d < 5 cfs !½ cfs
> 5 cfs and <JO cfs 2 cfs
> IO cfs anv amount
in minimizing adverse impact on the non-Tribal patties t6 this Agreement
in maintammg the Tribe's right to the reasonable and
economic use of water for domestic and stock purposes upon the reservation
(b) Once the Court selects operation rules pursuant to the standard set forth in subsection (a) above, such rules shall thereafter control and shall be implemented by the paities pursuant to the terms directed by the cowt.
I
(b) Once the Court selects operation rules punmant to die standard set forth in subsection (a) above, such rules shall thereafter control and shall be implemented by the parties j>lll'SU1lllt to tho term$ directed by the court.
ARTICLE 9- EXECUTION AND CERTIFICATION
The foregoing A~ent is hereby «ecured between the parties.
TULE RIVER INDIAN TRIBE OF CALIFOR."'ITA
~tf-{2
BYNEILPEYR.ON,~
STA TE OF CALIFORNIA
COUNTY OF TULARE
)
)ss.
)
Subscribed and sworn to before me on this~ day of~A='/Je;tl'---_ _,, 2007, by 1/Elt. /Jcy,f/t>~ Wbl/ /?Rt1plfb_z; he. I he peR.sow wlu> foppef!f<.ci, b~J)Rf; me.
WITNESS my hand and official seal.
My Commission expires: Af JI-/ ,;l.t>i>'/. . n
,¼u,z,,~~
ANNE!.IE uURBIM
commission # 1607060 •
Notary Public • Collloiola ~
Tulare counly
My comm. E>P™ 001 14. 2009
Notnry Publio
)
TULE RIVER ASSOCIATION
131'
&~~~ DON MacMILLAN
CHAIRMAN
. DATE 7
STATE OF CALlFORNIA
COUNTY OF TULARE
)
)ss.
}
DATE
Subscribed and sworn to before me on !his d. dt,J of N,et/ , 2007, by !2"'.&Vlt;-· ? ;µ,du:
WITNESS my band and official seal.
My Commission expires:
Page21
I
SOUTH TIJLE INDEPENDENT DITCH COMPANY
BYPHILG.~ ~/
PRESIDENT AND SECRETARY
DATE
STATE OF CALIFORNIA
COUNTY OF TULARE
)
)ss.
)
~)-_
BYiirrifL. WATiaNS
VICE-PRESIDENT
DATE
Subscribed and swom to before me on this,,!'/_ day of t/t ;/ . 2007, by lJe 8ua ~ ,E /f#k/U
WITNESS my band and official seal.
MyCommissioneJ<pires: dii-a,r. -fof, Wf
Notary
~
Publie
Page22
GOP.GOV (HTTPS://WWW.GOP.GOV) / LEGISLATIVE DIGESTS (/LEGISLATIVE) / H.R. 1945 H.R. 1945: Tule
River Tribe
Water
Development
Act
H.R. 1945
Tule River Tribe Water Development Act
FLOOR SITUATION
H.R. 1945 is being considered on the floor under suspension of the rules, requiring a two-thirds majority vote for passage. This legislation was introduced by Rep. Devin Nunes (R-CA) on April 2, 2009. The bill was referred to the Committee on Natural Resources, which took no official action.
BILL SUMMARY
H.R. 1945 would direct the Secretary of the Interior (acting through the Bureau of Reclamation) to complete a study to evaluate alternative water irrigation sources for domestic, commercial, municipal, and industrial water supplies for the Tule River Tribe of the Tule River Reservation. The bill requires that the study be completed within two years after funds are appropriated or a settlement agreement on water rights is reached by the Tule River Tribe, along with other users.
The legislation would also prohibits projects related to the study from supplying water to Tribal casinos, except for the casino currently operated by the Tribe on the Tule River Reservation and any lodging, dining, entertainment or similar facility operated in relation to this casino.
H.R. 1945 would authorize $3,000,000 to carry out these provisions.
BACKGROUND
The Tule River Indian Reservation was established at its present location in the foothills of the Sierra Mountains in California through an executive order issued by President Ulysses S. Grant on January 9, 1873. Today, the reservation area is made up of about 48,000 acres with about 200 acres capable of irrigation.
The Tule River Tribe is currently engaged in water rights settlement negotiations with downstream users of water flowing from the south fork of the Tule River. According to the Tule River Tribe's website, the purpose of these negotiations is to determine the water rights of the Tribe under federal law and to use these rights to create a self-sustaining homeland.
SPONSOR Rep.
DATE June 23, 2009 (111th Congress, 1st Session)
STAFF CONTACT Communications
COST
A CBO score for H.R. 1945 was not yet available.
Item No. 14.
CITY COUNCIL AGENDA – APRIL 19, 2022
SUBJECT: Tulare County Association of Governments Public Transit Representative SOURCE: City Manager's Office
COMMENT: Consistent with federal regulations and requirements enacted in 2015, the positions of Public Transit Representative and Alternate were created to join the Board of Directors of the Tulare County Association of Governments (TCAG) as a full voting member. Given the Representative and the Alternate must be an elected official from a jurisdiction that provides fixed route public transit service, and each of the Members of the Tulare County Board of Supervisors serve on the TCAG Board, the public transit representatives must be elected officials from among the eight cities in Tulare County. The Council of Cities has been determined to be the entity and the process to select the Public Transit Representative and Alternate positions.
The Alternate position is currently vacant, and the Representative position is currently held by Farmersville City Council Member Greg Gomez, who has indicated that he wishes to step down from the position. Vice Mayor Carrillo and Council Member Tate have both indicated their interest in being considered for the vacant positions. The Council of Cities expects to consider nominations for the positions at its next meeting on May 18, 2022.
RECOMMENDATION: That the City Council consider the nominations of Vice Mayor Carrillo and Council Member Tate to the Council of Cities for the positions of Public Transit Representative and/or Alternate to the TCAG Board of Directors.
ATTACHMENTS: 1. TCAG Public Transit Representative and Alternate Appropriated/Funded:
Review By:
Department Director:
John Lollis, City Manager
Final Approver: John Lollis, City Manager
Council of Cities adopted this revised process on January 17, 2018, adding items 10 and 11.
Tulare County Council of Cities
Process for Selecting a Transit Representative to the TCAG Board There is a Transit position on Tulare County Association of Governments (TCAG) Board of Directors. This position was created by the TCAG Board in 2015 and carries a three year term. It is a full voting member of the Board that is appointed by the Council of Cities. In 2017, the Council of Cities determined a process for filling the position. Per the TCAG Director, the person holding this position should be an elected official from a City that directly provides fixed route service who is willing to fulfill the job which includes the following items:
Public Transit Representative Duties
* Receive orientation and training on the roles and responsibility of TCAG as an agency, as well as the responsibilities of individual board members.
* Represent the interests of public transit in Tulare County. This includes the interest of residents and riders in the county, as well as all agencies that provide public transit in Tulare County. * Serve as the TCAG representative on the CalVans board of governors. * Attend various meetings, functions, conferences, etc. Examples include:
o CalVans board meetings
o Stakeholder and community meetings
o Unmet Needs Public Hearings
o Transit forum meetings
o Meetings of the Social Services Transportation Advisory Council (SSTAC) o Events, functions, etc. with local, regional, state and federal partner agencies o Advocacy trips to Sacramento and Washington D.C.
o Project groundbreakings
* Ensure that you are provided the necessary information for decision-making. * Attend board member training.
*Attend TCAG board meetings and workshops.
* Promote and advocate for public transit that serves the residents of Tulare County.
Process:
At the May, 2017 Council of Cities meeting, the City representatives discussed utilizing the following process be developed. It is proposed that this process be utilized to fill the position being vacated on June 30 of this year, and then the Council of Cities consider the policy at the July 19 meeting. The following process has been outlined
1. Notify all Tulare County cities that a position is available Council of Cities adopted this revised process on January 17, 2018, adding items 10 and 11.
2. Each city will notify its Council Members that a position is available, and that they should notify their City Manager by a date specific if they are interested in serving as the Transit Representative.
3. The City Managers will notify the designated Council of Cities representative by a date specific if they have a Council Members who wishes to be considered for the position.
4. If only one Council person expresses interest by the date specified, that name will be forwarded to the Tulare County Association of Governments as the representative. A request will go out to the cities for an alternate, to be filled through the same process.
5. If more than one Council person expresses interest, a Council of Cities staff representative will assemble the names, and draft a sample report with the names listed in alphabetical order by last name, including timelines, that each City can work from in selecting a nominee.
6. Each City will put the item on a Council agenda, and each City Council will select a nominee. The candidate that garners the most votes will be forwarded to the TCAG Board as the representative. If the nomination process results in a tie, those names involved in the tie will be forwarded to the Council of Cities for a final decision.
7. If there is a tie that goes to the Council of Cities, and the vote at the Council of Cities also results in a tie, then the Council of Cities will hold a second ballot on the same day. If it remains a tie, the representative will be selected based on a random draw at the Council of Cities meeting between those names involved in the tie.
8. If a City Council is unable to complete the process within the timeframes indicated, their vote will be considered an abstention, and the process will continue along the timeframes outlined.
9. The person with the second largest number of votes from cities will be the alternate to the TCAG Board for the Transit Representative.
10. If candidate receiving the second largest number of votes declines to be alternate, the candidate with the next largest number of votes will have the opportunity to serve. If no candidate accepts the alternate position, the Chair will issue a call for nominations and at the next Council of Cities meeting, the voting members will elect the alternate from the nominations submitted.
11. Timeframes for vacancies will be set when the position becomes vacant, with the expectation an appointment at the end of the term should begin three months before the position becomes vacant.