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<br />000733 <br /> <br />Mr. Phil Doe <br />Page 6 <br />June 14, 1998 <br /> <br />of America and numerous defendants, all of whom were the non-Indian purchasers of allotments <br />from the former Southern Ute Reservation. The United States, since 1870, had built numerous <br />ditches diverting from the Pine River for the irrigation of the Reservation. In the decree, it <br />obtained the right, with a priority of July 25, 1868 (the date of Senate ratification of the 1868 <br />treaty with the Utes), to 213 cfs of water for irrigation and domestic uses, 212 cfs of which was <br />diverted through the ditches on the Pine River, and 1 cfs of which was diverted from Dry Creek, <br />a tributary of the Pine. The decree establishes that the water is to be used for "the irrigation of <br />16,966 acres of inigable lands of the former Southern Ute Reservation lying under said ditches, <br />and for domestic purposes[,)" '3, at 5 (emphasis added). These water rights are "for the <br />irrigation and domestic needs of the United States Indian Agency and the lands heretofore allot- <br />ted within the Southern Ute Reservation susceptible of irrigation with water from Pine River ... " <br />'1, at 3 (emphasis added). Of this amount, the United States was entitled to divert no more than <br />31.3 cfs of this water for use on 2505 acres of irrigable lands "on Indian allotments purchased <br />by persons not wards of the United States"-that is, the defendants--until such time as the <br />defendants' priorities as among themselves could be determined. "4-5, at 5-6. <br /> <br />The Pine River decree, because it dedicates water for the lands formerly part of the reservation, <br />including lands held by individual Indian allottees (as well as the non-Indian purchasers of allot- <br />ments), could be considered a type of reserved water right; but, because it has already been <br />quantified and decreed, it obviously does not constitute an outstanding claim for water. Also, <br />because it was stipulated, it does not constitute any judicial determination that there was an 1868 <br />"reserved water right." To the contrary, the decree is carefully worded in order to avoid any <br />such implication. It states that the 213 cfs: <br /> <br />... defines, limits, and settles forever all of the rights of the {United States] to divert <br />water from Pine River and its tributaries, under its claim of priority of July 25, 1868. and <br />also limits such rights to the amount of water herein decreed to its several ditches above <br />named, respectively, for use upon the maximum acreage of lands herein designated. Any <br />ditches hereafter constructed or acquired, or water diverted from The Pine River and its <br />tributaries for the purpose of irrigating other Indian lands than those irrigated or which <br />may be irrigated from the above-mentioned ditches, shall be entitled to and take priority' <br />only as of the date of appropriation and application of such water to a beneficial use on <br />such other Indian lands. . <br /> <br />Case no. 7736 (D. Colo. Oct. 25, 1930), '14, at 10-11 (emphasis added). The quoted language <br />presents a possible estoppel arising from the United States' having already claimed and received <br />a decree for water rights for irrigation of these Ute lands. If, in fact, all of the practicably <br />irrigable acreage of the lands either allotted to Indians or held by the United States Indian <br /> <br />6 <br />