Animas-La Plata Water Project From Wikipedia, the free encyclopedia

"The Animas-La Plata water project is being built to fulfill the water rights settlement of the two Indian tribes that live in Colorado – the Ute Mountain Ute Tribe and the Southern Ute Indian Tribe." So say the promoters of the Project; unfortunately, there was no consideration for the "settlement," because the Utes have never had a valid claim for water.

The Utes' reservation was extinguished by an Act of Congress in 1880. During the 20th century, they were permitted by acts of Congress to sue the government several times to recover for the property interests disposed of from their reservation, recovering, by 1950, over $1.3 billion (present worth). In that year (1950), they signed several consent judgments agreeing that this was the last time they would come to court. They agreed they would never seek any more compensation for their extinguished property interests and that the 1950 judgment was res judicata.

However, the very next year, 1951, they were back in court with more claims. The Court of Claims approved their application, with one lone dissenter, Judge Skelton, who was outraged by it. He said:

"I cannot agree with the reasoning of the majority nor with the result they reach. In my opinion, the Indians in this case, along with other Southern Ute tribes, were paid $31,938,473.43 in 1950 for the identical land involved here, together with other lands. This was the largest judgment ever awarded by this court since it was established in 1855. The attorneys who represented the Indians in the recovery of this tremendous judgment received an attorney fee of $2,800,000. [See Confederated Band of Ute Indians v. United States, 120 Ct.Cl. 609 (1951).] As will be seen in the following pages, the same Indians and the same attorneys are before the court again in this case asking that they be paid again (twice) for the same land, and the opinion of the majority is going to allow them to get this double payment. This results, in my opinion, in a shocking giveaway of millions of dollars of public money of the United States, and I cannot agree to it."

191 Ct.Cl. at 32.

The United States Supreme Court, in an 8-1 decision authored by Justice Brennan, agreed with Judge Skelton and reversed the Court of Claims in a 1971 opinion, United States v. Southern Ute Tribe or Band of Indians, 402 U.S. 159. True to form, however, the Utes--through their Anglo attorneys--were back in court the very next year, 1972, with more claims, this time for reserved water rights.

In other words, the American taxpayers have been required to fork over a billion dollars to build a water project to "settle" nonexistent claims of the Indian Tribes. And it's not even a "project"--it's so far only a hole in the ground, which we the taxpayers will be paying for for years, with interest, until a use for the water is discovered. And then we will have to build them a distribution system, which will be untold billions more, money never factored into the original cost. Anomalously for a Bureau of Reclamation project, all project costs have been transferred to the American taxpayer!

There are numerous other problems, including egregious frauds committed by the project's attorneys in the Colorado water court, and lies to Congress. The frauds in the court started in the 1960's. The applicant for the water rights was the Southwestern Water Conservation District, whose attorney was a man named Bill Eakes. In 1963, Eakes filed the statements of claim for water rights in the court, as the SWCD's attorney; in 1965, he argued them to the referee; then, in 1966, he became the judge and decreed the very claims he had filed as the attorney. This was when the A-LP was strictly an irrigation project, to benefit the Anglo landowners in the La Plata drainage--but it was never economically feasible, according to the Bureau's own studies. Eakes's prodigy, an attorney named Sam Maynes, sat down with Eakes and a Bureau engineer several times in the water court to change the decree, adding new structures and uses in order to try and get it funded, without any of the public notice required by law. The court records from these proceedings have been altered in numerous ways; many documents are missing which should be there; transcripts are missing certifications and pages; and other evidence is just gone. In fact, the file reveals that an adjudication held in the early 1950's, which should have been closed and a decree issued on the evidence by 1952--prioritizing water rights all of which would have been senior to the ALP--was probably reopened by Eakes. No decree from 1952 can be found. The conclusion is inescapable that it was disposed of, in order that Eakes and Maynes could fabricate the new one in 1966, into which they inserted a water right for the ALP into the existing priority list.

In the mid-1980's, Maynes and his cronies had still failed to obtain Congressional authorization for the project, so they joined forces with the Utes (who were Maynes's clients in other matters, anyway) and "settled" the applications for reserved rights by giving the Utes the moribund Animas-La Plata irrigation project. It was thus magically transformed into an "Indian Project." These reserved rights applications are the very ones discussed above, which were filed in blatant violation of the 1971 United States Supreme Court opinion. The proceedings in water court from 1972 to 1991 then were themselves violative of state laws and due process. There were over 100 objectors in the case who were just "blown off" by the powerful interests who were feeding at the ALP trough, with the blessing of the court. These 100 objectors never stipulated to any decree, and never got a trial, yet a "consent decree" was entered. Everything that happened in the court happened ex parte: the 100 objectors were not served notice of anything. As far as they knew, the case sat without any activity for 15 years. There was no motion practice, no discovery, no trial. The "settlement" in 1986 was a secret backroom deal which the court, Judge Al Haas by that time, just signed off on in 1991, when it was announced to the public as a done deal and the end of the case.

The biggest joke of all--a sick joke on the taxpayer--is that there is no use for the water. There is no "project," in other words: there is only a hole in the ground, Ridges Basin Reservoir (now called Nighthorse Reservoir). There has never been any distribution system proposed, because there is no way to use the water. In this "reserved rights case," no quantification of the amount necessary to fulfill the purposes of the reservation was ever done--at least, none was presented to the court. There was only this "settlement" executed by the the federal government, the State of Colorado, the Southwestern Water Conservation District, the Animas-La Plata Water Conservancy District, the two Ute tribes, and a couple other water districts. Most of them were represented by Sam Maynes. (The Bureau of Reclamation in Durango even leases offices in a building owned by Maynes.) They took for themselves all the water in SW Colorado, from nine streams (never even thought of in connection with the original irrigation project), and without any notice or due process to anyone else, and gave it to the Ute Tribes, who cannot use it. And this is an important point: this water is almost all of Colorado's remaining allocation of Colorado River water, under the Compact. It has thus been given away to other sovereigns.

In the mid-1980's, the SWCD got Congressional funding for the project, its "Indian water rights settlement," by agreeing that there would be no irrigation. Yet the sole purpose of the original project was irrigation: thus, the only possible use for the water has been removed by an Act of Congress. Representatives of the SWCD, including their attorneys Sam Maynes and David Robbins, appeared before Congress and swore that they were dropping the use for irrigation, in order to get the funding. However, despite their statements to Congress--and despite never even stating, in an application they filed for diligence on their water rights in 2001, that they were seeking diligence on the use for irrigation--David Robbins assured the water court that they had never meant to give it up, and diligence as to irrigation was decreed. Congress and the EPA were lied to, in other words. These people never had any intention of giving up irrigation.

Another incredible oversight on the part of the ALP attorneys is that they lost the water right for Ridges Basin Reservoir due to their failure to file for diligence on it in 2001. But never mind. As has been typical for them, they created a new water right for themselves out of thin air--a total fiction, as to which, again, there was no public notice and no adjudication. They stuck it in the diligence decree they drafted, and the court signed it. It is nothing but a fraud, and here are the attorneys responsible for it: David Robbins, Susan Schneider, Scott McElroy, Jennifer Hunt, Eve McDonald, and Dan Israel.

Beginning in 2001 and 2002, Citizens' Progressive Alliance, through its attorney Alison Maynard, contested both the diligence proceedings, and applications to "change" the reserved water rights, in good faith in the water court. They were the subject of continued harassment by the other side for five years. The proponents simply played games to tie the matter up in court while they dug their hole. The water court, Judge Gregory Lyman by that time, ceded all control over case management to the proponents' attorneys named above. CPA could not even get any disclosures out of them, as the rules require. All the rules were suspended in Lyman's court, to benefit the proponents. The proponents were permitted to draft several "scheduling orders," for example, in which they exempted themselves from all deadlines and other requirements imposed by the rules, which the court signed off on. CPA never even GOT any disclosures: a billion dollar water project, and the United States attorney disclosed not a single person with knowledge, nor a single document other than a handful which were already publicly available. When CPA's representatives met with project attorneys two years into the case, after it finally got the court to agree on a date for for the proponents' disclosures, U.S. Attorney Susan Schneider told CPA flat out, "You're not getting anything." And she was right: CPA DIDN'T get anything. CPA's attorney moved to compel and for sanctions, and her motion was not only denied, she was threatened with sanctions, herself, by Judge Lyman, if she ever attempted to enforce the rules again. So much for the rules, therefore. Jennifer Hunt, Robbins's associate, also waited until the last day in the period in which discovery was open--it was open for CPA all of two months--to disclose five new witnesses.

CPA knew that the practicably irrigable acreage of the reservation had been quantified by both the State of Colorado and the federal government many years earlier, but despite FOIA requests; a FOIA suit in New Mexico; open records act requests in Colorado; and demands for production of documents pursuant to Rule 34 in the water cases, CPA never got ANY of these reports--and they are strictly factual, as engineering. There is nothing confidential about them.

After being jacked around for five years in the water court, only to see Judge Lyman simply rubberstamp everything the other side asked for and deny CPA everything IT asked for, CPA went to the Colorado Supreme Court, where it saw its diligence appeal get dismissed on a pretext and no opinion whatsoever issue on the reserved rights appeal, 07 SA 100. In 07 SA 100, the Court just issued a one-line opinion "affirming the decision of the Division 7 water court." Shucks, I bet you thought the Supreme Court had a duty to determine the issues brought to it on appeal, or at least to mention a reason or two why it thought CPA's arguments were wrong! But it didn't do that. Obviously, if the Supreme Court mentioned these little problems CPA identified, it would then have to decide the issues in CPA's favor--like, 100 objectors in the case who never stipulated to the "decree," and were never served anything else in the case, just blown off by the development interests who were having their cozy tete-a-tete with the judge; like the fact there is no use for the water, and the "project" is totally speculative and a nightmare for American taxpayers; and that the Utes and their attorneys, the United States Department of Justice, and the Colorado courts are brazenly thumbing their noses at a United States Supreme Court decision. And then there are all these fraudulent court decrees these attorneys have caused to be entered. In addition to those mentioned above, Janice Sheftel, and her mentor Sam Maynes, kept adding new uses into every diligence application, uses which were never the subject of public notice or any prior diligence decree. Nothing but fraud, all the way around, and Judge Lyman and the Colorado Supreme Court not only looked the other way, they actively enabled it.

And the Colorado Supreme Court has some other serious problems; notably, CPA got three justices recused from its reserved rights appeal. One in particular, Greg Hobbs, has made public statements advocating for the Animas-La Plata project. He has also repeatedly accepted gifts and money and other favors from the Southwestern District and its attorney David Robbins, engaging in repeated ex parte contacts with them while CPA's appeals were pending, and during the two trials in 2006. While CPA did get him recused in the reserved rights case, he did not recuse himself in the diligence case--instead, he unlawfully participated in the order dismissing CPA's appeal. CPA has attempted to obtain press on his improper conduct, but the news blackout in Denver, where developers reign supreme, has ensured there has been none.

So: a huge boondoggle, and at the bottom of it corruption in the courts. In addition, the Southwestern Water Conservation District is itself nothing but a racket. It is a money-laundering enterprise. It has no customers, does not supply water to anyone, has no works, no pumps, no pipelines (although it now does have this big hole in the ground American taxpayers paid for). The SWCD exists only to tax and speculate in water rights, and provide a handsome living for a bunch of attorneys and lobbyists. It brings in about a million dollars a year in tax money and will not reveal where this money goes. It has shown citizens who have done records requests bills from lobbyists, such as Ray Kogovsek in Pueblo, which say simply "Lobbying: $25,000," with no itemization--no indication whatsoever how many lunches Kogovsek bought for which Congressional reps. And it's not simply that $25,000 buys a lot of lunches--it's a MILLION BUCKS A YEAR buying a lot of lunches. Or buying something else. Sure wish we knew what.

Retrieved from "http://en.wikipedia.org/wiki/Animas-La_Plata_Water_Project" This page was last modified on 19 October 2008, at 21:32.

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