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<br />000734 <br /> <br />Mr. Phil Doe <br />Page 7 <br />June 14, 1998 <br /> <br />Agency in trust for the Indians who had not elected to take allotments, as of 1930, was irrigable <br />by this 213 cfs from the Pine River, and is comprised of this very 16,966 acres, then the United <br />States (and the Southern Utes, in whose behalf the United States made its claim) should be <br />deemed barred from claiming more water from any source, including the Animas and La Plata <br />Rivers, regardless of the date of appropriation, since it has already been to court and stipulated <br />to the amount necessary to fulfill its water needs as to those lands. Certainly, at the least, the <br />United States is barred, by its stipulation, from claiming additional "1868 reserved water rights" <br />from the Pine River to irrigate this particular 16,966 acres, wherever they are. <br /> <br />IV. ISSUE: Do consideration and legal authority exist for the 1986 settlement <br />agreement? <br /> <br />CONCLUSION: No. As explained above, the Southern Utes have no ability to claim <br />reserved water rights with a priority date of 1868, and they have been fully compensated <br />for the loss of that right. The Supreme Court has expressly so held. In addition, <br />although the present memorandum does not explore whether any later reservation was <br />created after the Act of 1880, possibly resulting in reserved water rights with a later <br />priority than 1868, it can nevertheless be stated that an Indian -reserved water right- for <br />municipal and industtial uses--the primary uses for the water to be produced from the <br />Animas-La Plata project-has never been recognized in law, nor is there authority for <br />changing any Indian reserved water right to such uses. <br /> <br />DISCUSSION: Consideration for the "Colorado Ute Indian Water Rights Final Settlement <br />Agreement of December 10, 1986," was predicated on the Southern Utes' forbearance from <br />pressing their claims to an 1868 reserved water right, which would be senior to most water rights <br />on the river and presumably disrupt a long-settled pattern of water use. The agreement was thus <br />based on mutual mistake, at the least, since, as this memorandum has explained, the Southern <br />Utes have no claim for reserved water rights with an 1868 priority. The agreement might alter- <br />natively have been based on fraud, since the 1971 United States Supreme Court decision was cer- <br />tainly known to the parties to the agreement, who were the parties in that case. It was only five <br />years later that they filed their application for "1868 reserved water rights" in state water court. <br /> <br />Other problems with the 1986 agreement are that it reserves the largest amount of water (26,500 <br />AF per annum) for municipal and industrial uses, and also permits changes of the reserved water <br />rights by the Utes, presumably to uses other than irrigation, off the reservation. Although these <br />provisions are only terms of a "settlement," not a judicial determination of their legality, it <br /> <br />7 <br />