The proponents of Animas-La Plata have, in the past, argued that the so-called "Pine River decree" constitutes judicial confirmation of the existence of an 1868 reserved water right. For several reasons, that conclusion is incorrect.

The Pine River decree arose from an action ("Case No. 7736") brought in 1930 by the United States, on behalf of the Southern Utes, for an injunction and to quiet title in the United States to ditches diverting from the Pine River.84 The United States constructed the ditches in 1884 for irrigation of Southern Ute lands.85 The defendants in this case were numerous non-Indian successors to Indian allottees who had been taking water from the government's ditches to irrigate their allotments.86 The amount of water to which title was purportedly quieted was sufficient to irrigate existing allotments, as well as lands held by the United States in trust for future allotments; "purportedly" because, at the time of the action, there had been no judicial confirmation of an appropriation (i.e., a decreed water right) which would support such title.

The suit was settled by stipulation of the parties to entry of a decree granting the United States the right, as against the defendants, to 213 cfs of water for irrigation and domestic uses, 212 cfs of which was diverted through the ditches on the Pine River, and 1 cfs of which was diverted from Dry Creek, a tributary of the Pine, all with a priority of July 25, 1868 (the date of Senate ratification of the 1868 treaty with the Utes).87 The decree establishes that the water is to be used for the irrigation of "16,966 acres of irrigable lands of the former Southern Ute Reservation lying under said ditches, and for domestic purposes . . . ."88 These water rights are "for the irrigation and domestic needs of the United States Indian Agency and the lands heretofore allotted within the Southern Ute Reservation susceptible of irrigation with water from Pine River."89 Of this amount, the United States was entitled to divert no more than 31.3 cfs for use on 2,505 acres of irrigable lands "on Indian allotments purchased by persons not wards of the United States" (the defendants) until such time as the defendants' priorities as among themselves could be determined.90 Although the Pine River decree purports to assign a priority to the United States' ditches, Case No. 7736 was not a water rights adjudication, since it was not held to decide relative priorities among all water diverters on the same stream.91 Instead, it was an injunction and quiet title action-an in personam suit brought to determine only whether the named defendants in the case had any right, vis-a-vis the government, to divert from the government's ditches.92

Case No. 7736 must, thus, be distinguished from a true federal water rights adjudication, such as that described in Colorado River Water Conservation Dist. v. United States.93 In that case, the adjudication suit attempted by the United States in federal court is described as one for a declaration of the United States' rights vis-a-vis some 1,000 water users "in certain rivers and their tributaries"94 in Water Division 7. "'[B]y reason of the interlocking of adjudicated rights on any stream system, any order or action affecting one right affects all such rights. Accordingly all water users on a stream, in practically every case, are interested and necessary parties to any court proceedings.'"95

In Case No. 7736, the court did not join all the water users on the stream. Instead, only those interested in taking water from the government's ditches were present, and they all had an interest in obtaining the earliest priority date possible (1868) for those ditches. Such would not be the case in a true water rights adjudication, where the parties would be competing with one another for the senior priority.

The 1868 priority date appears never to have been litigated. Even though the State of Colorado, in the early 1930s, held its own general adjudication of water rights within District 31,96 which includes the Pine River, apparently (correctly) not recognizing the quiet title action in federal court as an adjudication of water rights, the issue of the government ditches' priorities relative to other water rights was still not litigated. In District No. 31, the government's ditch rights were decreed absolute only as to that amount of water that had been put to actual beneficial use as of October 25, 1930.97 The rest of the water asserted in the decree as divertible through the various ditches was not actually being used, so was decreed conditional.98

The District No. 31 decree reveals that the Ute ditches all shared the number one priority (called "P-1"), with an appropriation date of July 25, 1868 (the date of Senate ratification of the treaty with the Utes).99 However, the wording shows that the state court, in making this finding, believed itself bound by the decree of the federal court in Case No. 7736.100 For example, in connection with the Buckskin Ditch ("Ditch No. Ute-1"), the state court stated:

[T]he original construction of said ditch was commenced on the 1st day of April, 1884; but that, under and by that certain decree entered on October 25, 1930, by the United States District Court for the District of Colorado, in case numbered 7736 in said Court, entitled the United States of America vs. the Morrison Consolidated Ditch Company et al, the date of priority is therein fixed and decreed as of July 25, 1868.101

Even if the decree in District No. 31 is given effect by water users in Colorado's Water Division 7, as it apparently has been, there are at least three reasons why it has no precedential effect binding or determining any future claims for "reserved water rights with an 1868 priority" from the Pine River, or any other river. First, the Pine River decree, upon which the decree in District No. 31 depends, was not litigated, so does not represent judicial confirmation of any fact therein. Its terms were drafted by the parties themselves to settle the case, and are self-serving. Second, the fact that it was an in personam injunction/quiet title action meant the decree, by its nature, binds only the parties to the case. A water rights adjudication, in contrast, is in rem and binding on the whole world.102 Third, the Pine River decree itself contains a clear disclaimer. The decree is carefully worded in order to avoid any implication that the United States could ever again claim an 1868 priority for its diversions from the Pine River, stating that the 213 cfs: defines, limits, and settles forever all of the rights of the [United States] to divert water from Pine River and its tributaries, under its claim of priority of July 25, 1868, and also limits such rights to the amount of water herein decreed to its several ditches above named, respectively, for use upon the maximum acreage of lands herein designated. Any ditches hereafter constructed or acquired, or water diverted from The Pine River and its tributaries for the purpose of irrigating other Indian lands than those irrigated or which may be irrigated from the above-mentioned ditches, shall be entitled to and take priority only as of the date of appropriation and application of such water to a beneficial use on such other Indian lands.103

Therefore, the "Pine River decree" by no means establishes any precedent for other reserved water rights with an 1868 priority date on any river.

Because, as a matter of law, the Southern Utes do not have a reserved water right with an 1868 priority and have been fully compensated for the loss of their property interests, there was no consideration for the Colorado Ute Indian Water Rights Final Settlement Agreement of December 10, 1986,104 upon which the stipulated water court decree for Animas-La Plata, as well as the Act of Congress authorizing ALP's funding, are based. A charitable view of this shortcoming is that the agreement was based on mutual mistake. A less charitable view is that the agreement was based on fraud, since the 1971 United States Supreme Court decision was certainly known to the United States and the Southern Ute Tribe, who were parties both in that case and to the 1986 Agreement. It was, in fact, only one year after the Supreme Court decision was rendered in 1971 that the United States filed its application on behalf of the Tribe to quantify "1868 reserved water rights" in federal court.

The main objectionable feature of the 1986 Settlement Agreement, in this writer's view, is that it reserves an enormous amount of water for municipal and industrial uses-almost eight times the amount it reserves for irrigation. Yet the measure and limit of a reserved water right is only the "practicably irrigable acreage" of the reservation, in accordance with the stated purposes of the law or executive order which created the reservation.105 In the case of the Southern Utes, as in the Fort Belknap reservation considered in Winters, the purpose of the original reservation was to provide the means for agriculture.106 The Utes' treaty contains no language, in contrast, expressing that Congress' purpose was to provide a means for the Ute Indians to engage in real estate development, or to sell their water off the reservation for such a purpose. Yet it is precisely this practice which the seemingly innocuous terms "municipal and industrial use" authorize, and for which the 1986 Agreement provides.

Thus, far more has been realized from the 1986 "settlement" of reserved water rights than likely ever could have been achieved through litigation. The final outcome makes clear that the beneficiaries of the Animas-La Plata project must be somebody other than the handful of tribal citizens in the area, who are already more than adequately served with water. When the "Indian blanket" is stripped away, we see those beneficiaries for who they really are: real estate developers.

This article has been adapted from a memorandum Ms. Maynard wrote for the Citizens Progressive Alliance in January 1999. That memorandum, in part, constituted a legal analysis of issues identified earlier by Mr. Richard Hamilton in a monograph dated September 30, 1997. Mr. Phillip Doe, a retired former official of the Bureau of Reclamation and board member of CPA, supplied additional factual background for the present article. Ms. Maynard wishes to express her appreciation for his assistance. Ms. Maynard practices primarily water and land use law from her offices in Capitol Hill, Denver, representing citizens' groups and environmental organizations. She is a 1976 graduate of Cornell University (where she majored in physics), a 1986 graduate of the University of Denver College of Law, a former geophysicist, and a former Assistant Attorney General for the State of Colorado, in the water unit. Ms. Maynard was the trial attorney in Aspen Wilderness Workshop v. Colorado Water Conservation Board, 901 P.2d 1251 (Colo. 1995), pro bono; performed the legal services which resulted in the formation, by election in 1997, of the Center of Colorado Water Conservancy District in Park County; and brought a series of suits against the Park County Commissioners in 1995-98 on behalf of various citizens' groups, which were instrumental in the recall of all three commissioners in February 1998. Ms. Maynard served for four years on the Ethics Committee of the Colorado Bar Association.

1. See Earthjustice Legal Defense Fund v. United States Department of Interior, No. 99-WM-808 (D. Colo., filed Apr. 23, 1999). For more information, see http://www.angelfire.com/al/alpcentral">A-LP Central

2. Possibly a very large portion; we have been unable to get reliable information.

3. Such an eventuality would have to be negotiated with the Navajo Nation, however, since it claims all the water of the San Juan River.

4. Colorado Ute Indian Water Rights Final Settlement Agreement, December 10, 1986.

5. Colorado Ute Indian Water Rights Settlement Act of 1988, Pub. L. No. 100-585, 102 Stat. 2973 (1988).

6. In the Matter of the Application for Water Rights of the United States of America (Bureau of Indian Affairs, Southern Ute and Ute Mountain Ute Indian Tribes), Findings of Fact, Conclusions of Law and Decree (Dist. Ct., Water Div. No. 7, Colo. 1991) (No. W-1603-76F).

7. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. 159 (1971).

8. Id. at 160.

9. In Winters v. United States, the Supreme Court held that water rights, in sufficient quantity to fulfill the purpose of the reservation, are impliedly reserved for the benefit of the Indians at the time a reservation is created. Winters v. United States, 207 U.S. 564 (1908).

10. See United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 159.

11. Id. at 162.

12. Id. at 162-63.

13. Id. at 163.

14. Id.

15. Id. at 159 (quoting Act of June 15, 1880, ch. 223, 21 Stat. 199, 200 (1880)).

16. United States v. Southern Ute Tribe or Band of Indians, 423 F.2d 346, 356 (1970) (Skelton J., dissenting), rev'd, 402 U.S. 159 (1971).

17. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 163-64, 174.

18. Id. at 162-63.

19. Id. at 163-64.

20. Winters, 207 U.S. at 576.

21. Arizona v. California, 373 U.S. 546, 600 (1963); United States v. New Mexico, 438 U.S. 696, 698 (1978); Cappaert v. United States, 426 U.S. 128, 141 (1976).

22. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 159 (quoting Act of June 15, 1880, ch. 223, 21 Stat. 199, 200 (1880)).

23. 26 C.J.S. Deeds, ß104(c) (1956) (footnotes omitted).

24. See Arizona, 373 U.S. at 600, 601.

25. United States v. Anderson, 736 F.2d 1358 (9th Cir. 1984).

26. Id. at 1361. This is a different question from whether a reserved water right attached to lands allotted to Indians while those lands were still part of the reservation; and, if so, whether that water right can be transferred to non-Indians and still retain its original priority date. The answer to both parts of this question is yes, since an allottee has a reserved right which is derivative of the tribe's. United States v. Powers, 305 U.S. 527, 532 (1939) (Indian allottees are entitled to "use some portion of tribal waters essential for cultivation" of their reservation); Anderson, 736 F.2d at 1362; State of Wyoming v. Owl Creek Irrigation Dist., 753 P.2d 76, 114 (Wyo. 1988). If the lands left reservation status, however, allotments made after that time did not carry a reserved water right. Water could be appropriated for such lands only pursuant to state law. Owl Creek, 753 P.2d at 114. Accord Grey v. United States, 21 Cl. Ct. 285 (1990) (the right to an individual share in tribal water is not the same thing as an entitlement to a reserved water right for the individual allotment); Colville Confederated Tribes v. Walton, 460 F. Supp. 1320, 1326 (E.D. Wash. 1978), aff'd in part and rev'd in part on other grounds, 647 F.2d 42 (9th Cir. 1981), cert. denied, 454 U.S. 1092 (1981) (at the time a tribal member acquires an allotment, he takes a proportionate share of the tribe's reserved rights). The principles governing the reserved rights of allotments to members of the Southern Ute tribe made prior to June 15, 1880, is believed unimportant for purposes of this article, since the Southern Ute Tribe does not base its claim to an 1868 priority on tribal reacquisition of such allotments.

27. Anderson, 736 F.2d at 1361.

28. Id. at 1363.

29. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 155-56, 158 (1935).

30. Anderson, 736 F.2d at 1363 (citation omitted).

31. In re Big Horn River, 899 P.2d 848 (Wyo. 1995).

32. Id. at 854.

33. See United States v. State of Washington, 520 F.2d 676, 693 (9th Cir. 1975), cert. denied, 423 U.S. 1086 (1976); Menominee Tribe v. United States, 391 U.S. 404, 412-13 (1968).

34. It is Congress' unequivocal language in the 1880 Act which similarly distinguishes the Southern Ute case from the situation presented in United States v. Adair, 723 F.2d 1394 (9th Cir. 1983), cert. denied, 467 U.S. 1252 (1984), where the United States Court of Appeals for the Ninth Circuit examined whether a reserved water right for fishing purposes survived when the Klamath Tribe was terminated pursuant to the Klamath Termination Act of 1954. Id. at 1428. The Court found that it did, because there is a substantive exception in the Klamath Termination Act which states that nothing in that Act shall be deemed to abrogate any water rights reserved to the Tribe, or fishing rights. Id. at 1412. No similar water rights "saving clause" was inserted in the Act of June 15, 1880. The Southern Utes' reserved water rights, thus, did not survive.

35. See Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433 (1950) (consolidating Case Nos. 45585, 46640, 47564, and 47566). Two other cases, Nos. 47565 and 47567, were referred to in the General Accounting Office Report Re: Petition of the Confederated Bands of Ute Indians. These cases are unreported.

36. Id.

37. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 159.

38. Act of Mar. 3, 1909, ch. 263, 35 Stat. 781, 788-89 (1909) (codified at 25 U.S.C. ß 320 (1994).

39. Ute Indians v. United States, 46 Ct. Cl. 225 (1911), supplementing 45 Ct. Cl. 440 (1910); see also Confederated Bands of Ute Indians v. United States, 100 Ct. Cl. 413, 422 (1943).

40. Ute Indians, 46 Ct. Cl. at 227.

41. Confederated Bands of Ute Indians v. United States, 100 Ct. Cl. at 422.

42. Id. at 418.

43. Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. 433, 436 (1950).

44. Act of June 28, 1938, ch. 776, 52 Stat. 1209 (1938) (codified as amended at 16 U.S.C. ß 81(d) (1994).

45. Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. at 436.

46. Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (1934) (codified as amended at 25 U.S.C. ß 461-479 (1994)).

47. Confederated Bands of Ute Indians v. United States, 100 Ct. Cl. at 419.

48. Id. at 423.

49. Id. at 413.

50. Id. at 419.

51. Id. at 423-24.

52. Confederated Bands of Ute Indians v. United States, 100 Ct. Cl. 413, 424 (1943). The Act did, however, either ratify the Secretary's order, or legislatively transfer, the 30,000 acres, which was not within the prohibited area. Id.

53. United States v. Southern Ute Tribe or Band of Indians, 423 F.2d at 370.

54. Southern Ute Reservation, Colorado, Order of Restoration, 3 Fed. Reg. 1425 (1938).

55. Act of June 28, 1938, ch. 776, 52 Stat. 1209 (1938) (codified as amended at 16 U.S.C. ß 81(d) (1994).

56. See Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. at 434. Two other cases, Nos. 47565 and 47567, were referred to in the GAO Report, but no separate report of these cases was found. See General Accounting Office Report Re: Petition of the Confederated Bands of Ute Indians.

57. Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. at 437.

58. Id. at 439.

59. Id. at 440-41.

60. See supra, note 35.

61. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 159, n.2.

62. Computed by Professor Charles Howe of the University of Colorado Department of Economics, assuming a rate of 3% interest compounded annually.

63. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 159.

64. Id. at 159-60.

65. Id. at 160.

66. Id.

67. Id. at 174.

68. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 161; Confederated Bands of Ute Indians v. United States, 117 Ct. Cl. at 437 (some emphasis in original, some added; citation omitted).

69. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 163-64.

70. See United States v. Southern Ute Tribe or Band of Indians, 423 F.2d at 346 (the case from which the appeal to the Supreme Court was taken).

71. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 164.

72. Id. at 174.

73. United States v. Southern Ute Tribe or Band of Indians, 423 F.2d at 363.

74. Id. at 364 (emphasis in original).

75. Id. at 372.

76. United States v. Southern Ute Tribe or Band of Indians, 402 U.S. at 159.

77. Amoco Prod. Co. v. Southern Ute Indian Tribe, No. 98-830, 1999 U.S. Lexis 4002 (1999), rev'g, Southern Ute Indian Tribe v. Amoco Prod. Co., 151 F.3d 1251 (10th Cir. 1998), aff'g en banc 119 F.3d 816 (10th Cir. 1997), rev'g 874 F. Supp. 1142 (D. Colo. 1995), modifying 863 F. Supp. 1389 (D. Colo. 1994).

78. Amoco, 874 F. Supp. at 1147.

79. Act of Mar. 3, 1909, ch. 270, 35 Stat. 844 (current version at 30 U.S.C. ß 81 (1994); Act of June 22, 1910, ch. 318, ßß 1, 3, 36 Stat. 583-84 (current version at 30 U.S.C. ßß 83, 85 (1994).

80. Amoco, 874 F. Supp. at 1151-52.

81. Id. at 1148 (emphasis in original) (quoting Southern Ute Tribe, 402 U.S. at 163).

82. United States v. Southern Ute Tribe or Band of Indians, 151 F.3d at 1256, n.2.

83. Id. at 1256.

84. United States of America v. Morrison Consol. Ditch Co., No. 7736 (D. Colo. Oct. 25, 1930) [hereinafter Pine River Decree].

85. Stipulation, United States of America v. Morrison Consol. Ditch Co., No. 7736, at 2 (D. Colo. July 14, 1930). The Stipulation recites these efforts as having begun in 1870.

86. Pine River Decree, at 5, ∂ 3.

87. Id. at 5-6, ∂∂ 3, 6.

88. Id. at 5, ∂ 3 (emphasis added to show the parties knew, in 1930, that the reservation was extinguished).

89. Id. at 3, ∂ 1.

90. Id. at 5-6, ∂∂ 4-5.

91. Id. at 5, ∂ 5.

92. Id. at 5, 11, ∂ 5.

93. Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976).

94. Id. at 805.

95. Id. at 811 (emphasis added) (quoting S. REP. NO. 755, at 4-5 (1951)).

96. In the Matter of the Adjudication of Priorities of Water Rights for Irrigation in District No. 31 (Pine River and its Tributaries), Decree of Adjudication, at 5 (Dist. Ct., Colo. 1934) (No. 1248) [hereinafter District No. 31].

97. Id. at 17.

98. Id. at 18. The division engineer's tabulation shows October 25, 1930 as the date of adjudication, and July 25, 1868 as the date of appropriation.

99. Id. at 17.

100. The evidence relied on by the court may still exist in the case file in the La Plata County district court, but does not exist in the State Engineer's Office in Denver, so was not reviewed for this paper.

101. District No. 31, No. 1248 at 17 (emphasis added).

102. If parties are summoned in a quiet title action by means of publication, such an action will also be considered "in rem" and binding on the whole world, but still only as to the title question. The mere fact that notice was published does not convert a quiet title action into a water rights adjudication.

103. Morrison, No. 7736 at 10-11, ∂ 14 (emphasis added).

104. Colorado Ute Indian Water Rights Final Settlement Agreement, December 10, 1986.

105. Arizona, 373 U.S. at 546.