Utes claim San Juan water
The Gallup Independent
8 October 2007
By Kathy Helms
Dine Bureau
WINDOW ROCK – The United States has filed an amended answer in the San Juan River General Stream Adjudication on behalf of the Ute Mountain Ute Tribe, seeking 10,950 acre-feet per year of groundwater and asserting a priority date of March 2, 1868, senior to the Navajo Nation.
The United States claims for the benefit of the Ute Mountain Utes a federal reserved right to divert and deplete from groundwater sources:
* Diversion of 470 acre-feet per year with a depletion of 141 afy for domestic purposes;
* Diversion of 610 acre-feet per year with a depletion of 61 afy for commercial purposes; and
* Diversion and depletion of 9,870 acre-feet per year for industrial purposes, including mining, hydrocarbon production, and electrical power production.
Bradley S. Bridgewater of the U.S. Department of Justice in Denver, general counsel for the United States, filed the order Sept. 28 with the 11th Judicial District Court in San Juan County.
“There was an order back in 2004 that required us to file all our claims on behalf of the Ute Mountain Utes by Oct. 1 of this year, so the document we filed is a statement of our claims on behalf of that tribe,” Bridgewater said Friday.
“There were also claims for all of the surveyed existing uses on the reservation,” he said.
Based on livestock carrying capacity estimates derived from information published by the New Mexico Department of Agriculture, and the historic grazing practices of the tribe, the United States has claimed for the tribe the right to divert and deplete 27 acre feet per year for livestock watering.
Maps included as part of the filing indicate a resort, golf and residential housing complex in the Coalbank Canyon area and a coal and/or gas power plant near Farmington. A feasibility study for a power plant project was completed in 2004.
“We have hired consultants to develop plans for those types of water uses on the reservation,” Bridgewater said, adding that the tribe has talked with a number of people in the industry.
“You have to understand this is a litigation, a reserved rights claim which, by its nature, necessarily contemplates things that are not yet in existence,” he said.
Stanley Pollack, water rights attorney for the Navajo Nation, said Friday that he does not yet know how the Ute Mountain Ute claim might impact Navajo and its settlement of water rights in the San Juan River Basin in New Mexico.
“What they are claiming is approximately 10,000 acre feet of water from the river. But we haven’t adjudicated it yet. I know the state doesn’t believe there’s much basis for it, so we’ll just have to take a look at it,” he said.
Pollack said there also are uncertainties regarding the amended Ute Mountain Ute priority date of March 2, 1868, the date of the treaty between the United States and the Ute tribes.
“There are challenges to their claim. Our treaty date is June 1, 1868. Their treaty date is March 1868. So theoretically, they have a senior right. But no court has ever really taken up the issue of what happens when you have two tribes on a river with basically adjacent reservations – whether the prior appropriation doctrine applies.
“Under state law, a water right is perfected when you put it to beneficial use. Under federal law, what Winters v. United States says is the water rights are perfected when the reservations are created.
“So in this instance, one of the questions that arises about the creation of their reservation is their treaty was in 1868 but their treaty was for lands in Colorado. The New Mexico portion of the reservation was added in 1895. So that makes it junior to Navajo. It makes it junior to Jicarilla, too,” Pollack said.
“They’re going to have an uphill battle,” he added.
Pete Ortego, general counsel with the Ute Mountain Ute’s in Towaoc, Colo., said the tribe basically is arguing what is known in Colorado water law as its “augmentation right.”
“Augmentation basically means that water seeps into our land and then eventually seeps all the way through the ground and makes its way over to the river and ends up in the river. So our claim is based a great deal on the augmentation,” he said.
“One of the ways that we determine how much water someone is entitled to in the San Juan River has a lot to do with how much water leaves their land and goes into the river.
“We did some studies – the federal government, actually – into just what kind of water resources we have that could be leaving our reservation and ending up in the river. The theory is if water from your land is going into the river, then you have the right at some point, maybe, to be able to take it out.
“Of course the judge is ultimately going to have to decide the strength of anybody’s case, including the tribe, but basically we are arguing that we have an augmentation right,” Ortego said.
Attorney Daniel Israel of Boulder, Colo., who also represents the Ute Mountain Utes on water rights cases, said that while the United States has made a reserved water right claim, or Winters claim, that looks to aquifer water on the reservation, and the tribe has made a separate claim.
“The tribe’s claim looks to San Juan surface water, which is located 7 miles from the reservation. Both claims justify the water on the basis of a hypothetical power generating project, an electric generating plant,” he said.
A new power plant?
Utes base water claim on hypothetical coal-fired power plant
The Gallup Independent
9 October 2007
By Kathy Helms
Dine Bureau
WINDOW ROCK – Though an economic feasibility analysis for a proposed coal-fired plant on the Ute Mountain Ute Reservation was conducted in February 2004, it wasn’t because the tribe wanted to build a plant, so much as it wanted to lay claim to waters in the San Juan River Basin.
“We don’t have a prospect of a plant in the near term, nor are we required to,” Boulder attorney Daniel Israel said Friday.
National Economic Research Associates Inc. was retained by the Ute Mountain Ute tribe to conduct a study of the economic feasibility of constructing the power plant and was asked to assess the economic viability of the project.
Israel said a Winters water right claim filed Sept. 28 in the 11th Judicial District Court in San Juan County by the United States, as trustee for the tribe, looks to aquifer water. The tribe has a separate claim that looks to surface water in the San Juan River, 7 miles from the reservation.
Both claims justify the water on the basis of a hypothetical power generating project, he said.
“Under the reserved water right doctrine, non-Indians get the amount of water that they have historically used, measured by the date when they began their use. That’s called the Appropriation Doctrine and it applies everywhere west of the Missouri. Indians, primarily Indians from national parks, have what’s called federally reserved water,” he said.
“The idea is you don’t measure the quantity by the actual use. It’s the exception to the rule. Tribes tend to be the biggest exception. The theory is that when these reservations were created, that as a matter of law … it’s implied that they get enough water to satisfy the purposes of the reservation.”
Over the passage of time that manner has changed, Israel said. “The way you get the most water, typically, is by irrigation because that requires the most water. But you’ve got to make a showing that it’s economically feasible.
“If you can show that you can irrigate 1,000 acres and you make $500 grand, after taking out all of your costs, including the cost of bringing water, if you make $50 grand or $10 grand, then you’re entitled to that amount of water.”
Irrigation on Ute lands in New Mexico is not highly profitable. But there are other ways of quantifying what is economically viable, he said. “In this case, the most economically viable use of this water would be for a hypothetical power facility.”
“If you do it on the basis of farming, you don’t actually have to go out and irrigate all the land to make the entitlement, nor do you have to build a power plant. You just have to have engineering and economists show that a plant could be built here and there is a market for it and here is the water supply required.”
He compared it to the proposed Desert Rock Energy Project on the Navajo Nation. The Ute Mountain Ute Tribe has opposed the Environmental Impact Statement for the project, which some have interpreted as the tribe is opposed to the Desert Rock project, yet at the same time is proposing a power plant of its own.
“There’s no question there’s a market for additional power out of the Four Corners. There’s no question that there’s coal. Clean air is an issue,” Israel said. However, the United States has used the concept of a power plant “to justify getting water and to pump water. The tribe (UMU) is trying to use the same argument for getting some surface supplies.”
The 2004 report stated that the Four Corners area is a viable location for new coal generation. The San Juan River and Navajo Dam reservoir provide water to San Juan Generating Station and the Four Corners Power Plant.
“Coal is readily available from sources in New Mexico, and also from Colorado, Wyoming and Utah. In fact, there are significant coal reserves on the Ute Mountain Ute reservation in New Mexico. New planned transmission capacity will offer the ability to move power toward load centers to the west,” the report said.
Given a large projected capacity shortfall in 2012 and the need for baseload generation in the region, a 600 megawatt plant located on the Ute reservation would fit well with the projected need, the report said.
Pete Ortego, general counsel with the Ute Mountain Ute Tribe in Towaoc, Colo., said that under the Winters Doctrine, the tribe is able to secure water for potential future uses.
“The federal government, when they forced the Indians to live on their tiny pieces of their original homeland, one of the things that they gave them in exchange was they promised them that they would always have water,” Ortego said.
“So for a tribe to simply look at its current situation and say, ‘OK, well this is all the water I need,’ that may not be very realistic when you think about the treaty promises. So the tribe had had to sort of look toward the future about what types of things it could do down in New Mexico.
“I don’t think the tribe is necessarily saying that we will do those things. I know there has been some confusion, particularly with our opposition to the Desert Rock. A lot of people came back and said, ‘Well, wait a minute. You guys are saying you’re going to build a coal-fired power plant, too.’ But that’s not true.
“We haven’t said we’re going to. We’re just reserving open the possibility. Who knows, in the future we may need to or we may want to. So when we look at potential future uses for the area, those are some of the things that the federal government came up with.”
Ortego said the tribe is negotiating with some companies that might be interested in removing high-grade coal from the reservation, but added, “I think I can tell you with some assurance that if there is going to be a power plant out here, we’re a long way from it happening.”
“What we are actively pursuing is renewable energy. We are looking into wind energy, we’re looking into solar, and we’re looking into geothermal,” he said.
The tribe is opposed to the Environmental Impact Statement for Desert Rock, he said, because “we didn’t feel that the EIS dealt with the cumulative impacts, given that there are so many other potential polluters out here.”
“Our view of the EIS is that it did not adequately look at development in the whole area. We’re simply asking for the EIS to do a better job. We don’t want to get in the way of the Navajos doing what they think is the best for their people, and I can understand that this is an economic opportunity for them … and we respect that.
“We don’t want to interfere with that. Nonetheless, we’re very close to their proposed power plant. If they can build a clean power plant that won’t affect the environment, then all the power to them. We just need to make sure to protect the tribe’s resources and the tribe’s tribal members, that the EIS is done accurately and truly assesses what’s going to happen when this thing is built,” he said.
