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Ute Indian Negotiating Forum; Stream Quantification Subcommittee

Posted by Steve Cone on 1:16 AM August 3, 1999.

GOOD OL' HORSE TRADIN'
Released August 3, 1999
QUOTED VERBATIM PORTIONS OF
JANUARY 15, 1986 MEMO
FROM LOIS WITTE, ASST COLORADO ATTORNEY GENERAL,
TO SCOTT MCELROY, SOUTHERN UTE INDIAN TRIBAL ATTORNEY

RE: UTE INDIAN NEGOTIATING FORUM, STREAM QUANTIFICATION SUBCOMMITTEE

Dear Mr. McElroy:

To avoid future misunderstandings, I'd like to confirm the negotiation parameters agreed to on January 13. Please contact me if your understanding of the January 13 meeting is different than mine so that we can avoid future problems. I'd also like to reiterate the positions that I believe were taken by the various parties on January 13, and I'd like to clarify the State's response and offer.

It is clear that it is important to the Tribe to have an 1868 priority date and that the Tribe does not want to look at alternatives to this date. The State is willing to accomodate the Tribe on the 1868 date where it can be done without injury to existing users. As stated in the January 13 meeting, under Colorado law, the loss to non-Indians will not be shared by all existing stream users on a pro-rata basis. Rather the entire impact will be felt by the junior users. That user may be a farmer who is not a member of this negotiating subcommittee. This process needs to identify those users or user groups, and negotiate with them or structure a solution to protect their water decrees and use.....

...I want to reiterate that I believe our subcommittee discussions should emphasize water availability and injury, and should not be a practice PIA trial. The former approach reduces the variables, time, and expense involved in the process, and for our purposes is more practical. However, the State needs some assurance that the parcels proposed by the Tribe are reasonable. The State can not ask its water users to subordinate to unrealistic water quantities. This does not, however, mean that we want to engage in a full PIA analysis, but rather it means that we need a common sense, general standard which focuses on what farmers do, and what they consider practicable, in Southwest Colorado.

The analysis undertaken by Chuck Lile and Ruth Yeager sought to accomplish this goal. A significant portion of their decision involved the static lift necessary to irrigate the lands. Chuck Lile informs me, and I believe the Tribe could affirm this, that lands which would require an irrigation static lift in excess of 20 feet are not irrigated in this area, and certainly small, high-altitude parcels suitable for pastures are not irrigated when the static lift exceeds 20 feet. To give the Tribe the benefit of the doubt, however, only parcels with a static lift in excess of 100 feet were discarded as unreasonable.

While we realize that the discussion during the meeting turned to the power rates used by the State during its analysis of static lift, I hesitate to continue this line of discussion. A strict PIA analysis did not form the basis for our January 3rd response. Moreover, such a discussion would require an examination of preference vs. commercial power rates, the Tribe's statutory authority for preference power, the physical availability of excess preference power, the source of preference power, the location of major distribution facilities and their cost of construction, and the legal authority for calculating irrigation economics of lands based on this rate. Unless we want to do a strict PIA analysis for each parcel, with full disclosure on both sides, this approach seems counterproductive. Please let me know whether you still agree with our initial assessment that the negotiations are not intended to become a PIA parcel analysis.

With respect to the negotiations on the individual streams, it is important to realize that individual stream agreements are bound together. Concessions by the State and water users on some stream systems must be matched by concessions by the Tribe on water-short streams.......

......In summary, the State accepted the 1868 date during the January 13 meeting and will reexamine its parcel-by-parcel analysis using this date.......

Sincerely,

FOR THE ATTORNEY GENERAL
Lois G. Witte
Assistant Attorney General
Natural Resources Section

twelve others were cc'd

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