BOARD01872

• Board Meeting Date: 9/27/1999
• Description: Colorado River Basin Issues - Interior Department's Indian Water Rights Report
• Board Meetings - Doc Type: Memo

DRAFT -- August 11, 1999

Basin. This was troubling to the Tribe because the RIP prescribes actions necessary to
recover endangered fish in the context of new water development in the Upper Basin,
including new water development contemplated by the Tribe. (The agencies note that draft
environmental documents were sent to the Tribe in 1986.) Tribes participating in the Animas-
LaPlata Project (ALP), pursuant to a Congressionally enacted Indian water rights settlement
act, maintain that the 1991 FWS Jeopardy Biological Opinion (concluding that ALP was
likely to jeopardize continued existence of the Colorado squawfish), reversing a 1979
Biological Opinion (non-jeopardy) for the same species, relied upon basically the same
information that was available to FWS in 1979. Although numerous meetings were held with
the Tribes in developing the reasonable and prudent alternatives for the 1991 final opinion,
the affected Tribes continue to maintain that tribal interests were not adequately accounted for
when the 1979 Biological Opinion was being reconsidered, and that there was no consultation
with the affected Tribes prior to the issuance of the 1990 Draft Biological Opinion.

In addition, a number of tribes expressed concern about the shortage of specific guidance to
FWS for engaging in consultations with Tribes, the failure by FWS to understand and be
guided by its legal trust responsibility to Tribes in the context of ESA implementation, and
the failure of the Department to maximize its administrative flexibility and discretion when
administering the ESA. These comments were made only shortly after issuance of Secretarial
Order 3206, and should be addressed, at least in part, through implementation of that Order.
A further perception, raised by Tribes in the Missouri River Basin, is that FWS collaborates
with other federal natural resource agencies (e.g., Bureau of Reclamation and Army Corps of
Engineers) in the development and operation of water projects for the benefit of non-Indians
while simultaneously minimizing the importance of Indian water rights and ESA issues raised
by Tribes relative to such projects. The White Mountain Apache Tribe referred the Working
Group to a recent federal court case clarifying the affirmative nature of the trust obligation
and the United States' obligation to take tribal rights into consideration even when no express
regulatory authority exists to do so, such as in the context of ESA implementation. See

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