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include Southern Ute Indian water rights which had been quantified but had not yet been put to use on tributaries of the San Juan River not affected by ALP, or any Jicarilla Apache water rights. Jicarilla Apache water right claims were then in the final stages of a negotiated settlement, but since they did not represent a present impact in the ALP area, much less quantified rights, no consideration was given to those claims in the consultation process. The Tribes complained of anomalies in development of the environmental baselines against which the effects of Federal agency actions are measured.7 The NIIP, for example, was co- authorized with the SJCP and those projects are required to share shortages. In April 1976, Reclamation Commissioner Stamm, with the pre-approval of Assistant Secretary Horton, signed a 40-year contract with the Navajo Nation for NIIP before the vast majority of SJCP water was even put to use. Because the full SJCP diversion across the Continental Divide is in place, it was counted in the baselines of other San Juan River Basin projects, but only the operating portion of NIIP, up to its 1991 depletions, has been included. The JicariIla Apache Tribe also is entitled to share shortages with these projects under the terms of their 1992 Settlement Act but hardly any of that settlement water is included in any baseline. The core of the tribal criticism and concern has been that development of environmental baselines for Section 7 consultations appears to disregard the very nature of their water rights claims. The Tribes assert that the current Section 7 baseline analysis ignores the fact that Federal Indian reserved water rights are vested property rights to meet the present and future needs of Indian tribes, regardless of whether those rights have been adjudicated or otherwise formally recognized and regardless of whether those rights have been exercised. The FWS consults on water projects when requested to do so by the Federal action agency and includes existing and proposed projects in the baseline only if they were the subject of earlier Section 7 consultations. This "first-in-time" approach allows projects with junior water rights to "jump ahead" of the unexercised senior Indian rights in biological opinions. The Tribes see modern efforts to recognize their rights through Federal legislation authorizing water projects which benefit Tribes and/or providing for the final settlement of their claims, frustrated by FWS regulations which appear to require that other projects be evaluated first. The FWS officials counter that the purely scientific nature of their task in the preparation of a biological opinion requires that they assess the effects of a proposed project in light of the actual situations in the affected area. The FWS believes that to take into account unexercised Indian claims of legal rights, which are often unquantified or unadjudicated, would skew FWS's assessment of the agency action which it is 16 7 Contrary to a popular perception, inclusion of water project depletions in the environmental baseline for a biological opinion on another project does not create an entitlement in the first project for ESA-free water for that project. Whenever a project undergoes Section 7 consultation that project is necessarily excluded from the baseline used to evaluate its effects on endangered species and their habitats and that baseline is compared to the conditions which would exist with the project. However, project inclusion in baselines does have the tendency to prevent projects not yet consulted on from jumping ahead in the battle for limited resources.