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<br />. <br /> <br />. <br /> <br />Indian reserved water right, with three separate standards estab- <br />lished to govern the proceeding. These scenarios are: (1) <br />change of use proceedings which move the water right to a new <br />location within the boundaries of the reservation; (2) change of <br />use proceedings which transfer the use of the water right off- <br />reservation but within the State of Colorado; and (3) change of <br />use proceedings which transfer the use of the water right off- <br />reservation and outside the State of Colorado. These scenarios <br />operate as follows: <br /> <br />When the Indian reserved water right is changed from one <br />place of use within the reservation to another place of use <br />within the reservation, the parties agreed that the state court <br />would have jurisdiction over the change proceeding with the state <br />court to grant the change subject to an agreement that there <br />would be no injury to other users on the stream and that the <br />tribe would not increase its consumptive use of water. The Final <br />Settlement Agreement also included a hypothetical consumptive use <br />calculated for the first decreed use of the reserved water right: <br />the predetermined consumptive use would be used in a change pro- <br />ceeding should the tribe want to change the decreed place of use <br />without actually having put the water to use. <br /> <br />When the change of use of an Indian reserved water right is <br />to a place of use outside the reservation boundary and within the <br />State of Colorado, the Final Settlement Agreement requires the <br />following: for the first change, the hypothetical consumptive use <br />figure is applied and for subsequent changes, consumptive use is <br />determined based upon actual historic use. In addition, the <br />tribes agreed that the use of their water rights would be subject <br />to the same requirements and conditions of state laws as apply to <br />the exercise of water rights held by non-federal, non-Indian <br />entities. In essence, the tribes agreed not to use their <br />"reserved water rights" as reserved water rights, but to use <br />their rights as if they were state appropriative rights, with a <br />few state law exceptions. These exceptions included state laws <br />requiring extinguishment of water rights in abandonment or for- <br />feiture proceedings for nonuse. <br /> <br />When the Indian reserved water right is changed from a <br />place of use within the reservation boundary to outside the <br />reservation boundary and outside the State of Colorado, hypothet- <br />ical consumptive use controls the first change and actual his- <br />toric use controls all subsequent changes. The tribes did not, <br />however, agree to use the water rights off-reservation subject to <br />the same requirements and conditions of state law as apply to the <br />exercise of water rights held by non-federal, non-Indian enti- <br />ties. Instead, issue of off-reservation use of water was handled <br /> <br />-7- <br />