Advanced Search | Site Map
COMMENT OF CITIZENS' PROGRESSIVE ALLIANCE
Pat Schumacher Four Corners Division Manager Bureau of Reclamation 835 East 2nd Street, Suite 300 Durango CO 81301-5475 These are our further observations after rereading the latest Animas-La Plata EIS. Please add them to the testimony we made at the Durango and Denver hearings earlier this year.
A. INDIAN WATER RIGHTS AND RELATED MATTERS
The discussion of the 1986 Settlement Agreeement is perfunctory, at best. Significantly greater effort must be devoted to discussing how individual water allotments were arrived at under this Agreement since it is held up in the EIS as having almost biblical sanctity. This is particularly critical in the case of the Indian water rights since it is popularly believed that the Indians have been waiting centuries, on parched and blighted land, for water from an uncaring public. This popular perception, generated as a fail-safe defense by project proponents, is an absurd and ugly lie as you all know. Government's unwillingness, on both the state and federal level, to vigorously counter this deception, as we have requested, makes both subject to the suspicion of complicity in an obvious attempt to hoodwink the public and silence debate. The EIS must make an open and complete disclosure of Indian water assets, even if it means the Department of Interior must reclaim its fiduciary and trust responsibiliites to the American people by producing the final EIS, rather than the Utes.
In this regard, the first table in the document, Table 1-1, page 1-6 must be corrected. The table is deceptive, for it fails to come to an even modest accounting of the water the Utes have in the Pine River. The table leaves the impression that their holdings on that river are incidental and not worth reporting. In fact, the United States reserved the first 213 cfs of direct flow rights in that river for Ute allottees in 1930. With the reestablishment of the reservation in 1938, the Tribe received another 20,000 af of stored water from Vallecito Reservoir. The public and its decision makers should also be made aware that this reservoir was built at public expense to offset the impact on non-Indian farmers on the Pine River from the United States' 1930 actions on behalf of the Indians. Overall, the two Tribes, at a cost of hundreds of millions in public funds, control approximately 150,000 acre feet of water, though this certainly couldn't be gleaned from the table or any discussions in the EIS. Comparatively, they number a little over 3000 people. Yet, they have a water supply adequate for the residential needs of almost a million people. The value of even one half of this water (70,000 af) on the open market through leasing might reasonably be $28 million annually (70,000 af x $400). An open discussion of how this water is presently being used, how much revenue it generates for the Tribes, and why this astounding asset still does not satisfy the "purposes of the resevation" under the Winters Doctrine must be included in any EIS that even pretends to adequately address the requirements of full disclosure and public involvement. Indeed, how can the public and its decision makers be intelligently involved if relevent information is willfully withheld?
Eight months ago, in anticipation of release of this latest EIS, the Citizens' Progressive Alliance (CPA) made a FOIA request concerning Indian water rights and present use. After months of delay, our request was denied on the basis that we did not have the resources to make the information available to the public. Not withstanding the fact that we have been successful in getting information on ALP and other water projects in the national press, including Time, The National Catholic Reporter, Roll Call, National Public Radio, and CounterPunch, just for starters, we respectfully request that this EIS be used as the vehicle for these necessary public disclosures. Additionally, the technical basis for settlement amounts accorded the Indians in the 1986 Settlement Agreement also needs to be fully documented in the EIS. We, along with others, have requested this information in FOIA requests to the Department of Interior and Open Records Act requests to the state of Colorado. All of these requests have been denied on th e basis that someday someone may have to go to court over these documents. By denying the public's legal right to know, a more self-fulfilling prophecy has never been uttered.
The EIS asserts that if ALP isn't built that the Indians will go to court to satisfy their water right claims and that those rights would carry an 1868 priority date, disrupting the general tranquility of the area. We have already discussed the questionableness of the Utes having another 60,000 af of rights under the Winters Doctrine, given that they already enjoy the benefit of 150,000 acre feet.
The 1868 priority date seems equally questionable and should be seriously addressed in relationship to the following factual information.
Largely from the efforts of the United States, the Indians have approximately 150,000 acre feet of water at their disposal, but none of it carries an 1868 priority date based on Winters Doctrine claims. The Supreme Court denied the Utes any further claims before the United States for the loss of the 1868 reservation, desolved in 1880 and reestablished as the Ute Mountain Ute and Southern Ute Reservations in 1938, in a "res judicata" decision written by Justice Brennan. The reasoning was that the Utes had already received compensation on several occasions and were therefore forever barred from making further claims. The present-worth value of those claim settlments has been estimated at $800 million. In a recent court decision the Southern Utes once again tried to use the 1868 date for the reservation. Though the Utes were successful in asserting there ownership of gas eminating from coal beds in area, the value of which has been reported to be in the billions of dollars, they were denied the use of an 1868 priority date for the reservation by the court. The court's argument hinged upon the above referenced Supreme Court decision and was accepted by the Utes since the decision rendered unto them billions of dolaars in gas assets. The Settlement Agreement pointedly disavows that the agreement should be viewed as recognition or acceptance of Indian claims to 1868 reserved water rights under the Winters Doctrine at section G, on page 22: "Under no circumstances shall anything in this Agreement be construed as an admission, or be used by any party as evidence, that the Tribe is or is not legally entitled to reserved water rights on the Animas or La Plata Rivers. The project reserved water right shall have no precedential or presumptive value in the event the terms of this agreement do not become final.".
The Supreme Court denied the Utes any further claims before the United States for the loss of the 1868 reservation, desolved in 1880 and reestablished as the Ute Mountain Ute and Southern Ute Reservations in 1938, in a "res judicata" decision written by Justice Brennan. The reasoning was that the Utes had already received compensation on several occasions and were therefore forever barred from making further claims. The present-worth value of those claim settlments has been estimated at $800 million.
In a recent court decision the Southern Utes once again tried to use the 1868 date for the reservation. Though the Utes were successful in asserting there ownership of gas eminating from coal beds in area, the value of which has been reported to be in the billions of dollars, they were denied the use of an 1868 priority date for the reservation by the court. The court's argument hinged upon the above referenced Supreme Court decision and was accepted by the Utes since the decision rendered unto them billions of dolaars in gas assets.
The Settlement Agreement pointedly disavows that the agreement should be viewed as recognition or acceptance of Indian claims to 1868 reserved water rights under the Winters Doctrine at section G, on page 22:
"Under no circumstances shall anything in this Agreement be construed as an admission, or be used by any party as evidence, that the Tribe is or is not legally entitled to reserved water rights on the Animas or La Plata Rivers. The project reserved water right shall have no precedential or presumptive value in the event the terms of this agreement do not become final.".
B. ECONOMICS AND RELATED MATTERS
Since the EIS is assertion, heaped upon assertion, with little factual, scientific, or economic underpinning, we would like to make an assertion of our own. It appears to us that ALP has become somehow tied to the Clinton/Babbitt Legacy concerns. We hope this is not the case, but the FOIA denials, the private meetings with project proponents which seem to have as their end result a whole new level of water subsidies in the name of justice for the Indians, the unwillingness to treat
Since when does anyone have the right to write their own meal ticket?
John Kiernan
April 12, 2000
Pat Schumacher Four Corners Division Manager Bureau of Reclamation 835 East Second Avenue Suite 800 Durango, CO 81301-5475
Dear Pat:
Truth is a cruel mistress which at times leads where one would not have thought to go. Pursuit toward the truth in the dilemma of the Animas-La Plata project first indicated me to that the project failed to supply any delivery system to the tribes . I further discovered that the project first included mention of Indian rights only when it had been rejected for every other criterion. This led to an examination of the rights themselves.
I hope , therefore, to not repeat any of the reasons offered by others in opposition to the Animas -La Plata Project, (A-LP ) but, rather, to center on the question of the validity of tribal claim for 1868 Winters Doctrine water rights. This claim is the only remaining reason for attempt to justify such a prodigal and inter-perpetuity waste of public resource as A-LP would be. The project fails to meet economic criteria ; it disregards environmental concerns -- hence the need to introduce " sufficiency language " into its legislative formulation-- , and it would be superfluous to the existing water sources sufficient in themselves to meet the foreseeable needs of the Navajo and Jicarilla tribes of New Mexico, the Ute Mountain Ute and Sourthern Ute tribes of Colorado , and the residents of the Animas -La Plata and San Juan drainages. Only the (quote ) " moral demand" to honor commitment to supposed water rights of the Southern Ute and Ute Mountain Ute tribes-- a consideration first introduced in the l986 agreement -- has survived scrutiny of the project. To these claims I now turn.
Alison Maynard has published an article which demonstrates quite clearly that the Congressional Act of l880 disestablished what had been the Indian reservation granted the Mouache , Capote and Weminuche bands of Indians in l868. She further shows that in United States v Southeern Ute tribe or Band of Indians (1971) the Supreme Court of the United States interpreted that Act so as to include the tribes' Winters Doctrine rights in " all the right, title, interest, estate, claims and demands of whatsoever nature in and to the land and property " then ceded in its entirety by the tribes to the United States.
I am most grateful to Mr. Scott McElroy for his pointed comments on this article, and to the indirect references made it by Solicitor Mr. John Leshy. The latter denies that the truth lf Ms. Maynard's paper can be now presented judicially . His reason ? The l986 agreement with its claim for l886 tribal rights has been accepted in court. He would imply that judicial error in a stipulated decree , based upon false information , would prevent a non-stipulated party's right to aid the court by presentation of correct information. No system of law could allow itself to be so bound and so blinded. Both authors attempt distinctions among the lands forfeited by the 1880 cession so as to claim that upon certain of these the United States was between l880 and 1938 a " trustee in possession" for property in which the tribe maintained an equitable interest until it received payment for the land. Both authors claim that reacquisition of reservation lands in l938 effected restoration of 1868 rights. They overlook the fact that in the claims cases of 1909 and 1938 the tribes had held the United States responsible for contract , not trusteeship violation, and the further fact that in one of these cases the United States had argued against such trusteeship.
In contradiction to the arduous efforts of Mr. McElroy and Mr. Leshy stand the clear judgment of the United States Supreme Court in its l971 res judicata ruling . Further contradiction to their position is provided by the Southern Utes themselves in their acceptance of the decision in the recent coalbed methane case heard by the United States Court of Appeals for the Tenth District. (citation omitted ) Tribal rights to the methane were predicated upon the 1909 and 1910 Coal Lands Acts, by which the United States reserved to itself the coal in lands subject to homesteading. To do this, the lands would then have had to be of public domain. In any event, Judge Babcock ruled in this case that ..." the Supreme Court hs left no doubt as to the meaning and effect of the 1880 Act. The central feature of the 1880 Act was the termination of tribal ownership of the reserved lands, and the limitation of Indian ownershop to such lands as might be allotted in severalty to individual Indians." Water rights sufficient for irrigable acreage follow land as night must day. Without land, the reason for the existence of such rights ceases.
Attempt to say that the Big Horn or the Anderson cases revive reserved water rights runs afoul of such language as, in Anderson, "On return of the property to tribal status, it becomes necessay to utilize the Winters Doctrine to assure that the tribe has sufficient water to fulfill the very purposes for which the reservation was created. We treat these lands in a manner analogous to that of a newly created federal reservation and find that the purpose for which the Winters rights are implied arise at the time of the reacquisition by the Tribe . THEREFORE , WE HOLD THAT THE TRIBE IS ENTITLED TO AN IMPLICATION OF WINTERS RIGHTS WITH A PRIORITY FOR THESE RIGHTS AT THE DATE OF REACQUISITION , RATHER THAN AN ORIGINAL... " Further, the Big Horn and the Anderson cases differ from the situation of the Ute tribes. The latter , in their l950 settlement for $31.4 million dollars, signed a consent agreement that their 1868 reservation had been extinguished by the Act of 1880. The settlement was inclusive of all claims and final resolution for them. Neither the Big Horn nor the Anderson cases labored under the burden of such previous agreement.
My interest in this case for claims goes far beyond its application to the Animas-La Plata dilemma. I see here that we have a test to decide whether we are a nation who reverence and abide by law, or whether we can seek to find meaning in it to suit private purposes.
For many reasons, I think that the Animas-La Plata project should not be built. For this reason, to preserve with honor our system of law, as articulated by the United States Supreme Court and as corroborated in subsequent hearings on related issues, I know that the project must not be built.
I trust that reason will prevail in this issue. I hope that the non-structural alternative offered by the Citizens' Progressive Alliance (CPA) will convince of its merits and be allowed to benefit all of the legally identified parties to this issue. Should the matter go to litigation, however, I look with confidence to fulfillment of that prediction by the most unexpected source of Sam Maynes himself, longtime propagator of the legal fiction of 1868 tribal rights, that his cause would not be winnable in court.
Thank you,
