WSPC02585

• File Number: 8064
• Description: Indian Water Rights
• State: CO
• Basin: San Juan/Dolores
• Water Division: 7
• Date: 3/17/1997
• Author: Todd M Olinger
• Title: Summary of Indian Water 1997
• Water Supply Pro - Doc Type: Report/Study

Indian Warer-1997: Trends and Directions in Federal Water Policy

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The tribes have been irrigating since time immemorial and their fields sit
dry. What is fair about that? So the Pueblos came to us and said, "Isn't
there something we can do about this? Can we ask the court to enforce what
it has ordered?" .The orders are not final. . In law that means we have not
appealed them all the way to the U.s. Supreme Court, but we sat back and
said, "Well, there's something very unfair about that. Why don't we go ask
the court, through a motion for injunctive relief, to enjoin the juniors' use
upstream? Last summer was a dry year, we all know." So we said, "Well,
let's give it a shot." I mean, it's not, in our view, as good as having a final
order of adjudication, but let's just go ask the court to enforce the senior
right.

So we filed a motion with the Federal District Court this past summer
asking the Court to enjoin the junior water right users upstream of the
Pueblo of Tesuque in New Mexico. Fortunately the juniors came forward and
said, "We'll work with you. You're senior, we admit it. There is no sense in
having a long court proceeding and all kinds of affidavits and experts dueling
away this summer." Meanwhile, everybody's fields were going dry. The
juniors made a deal with the Pueblo of Tesuque in which the senior water
rights were provided for first. Then when we got taken care of, we rotated
the water back to the juniors. Now, admittedly the Pueblo of Tesuque, in an
exercise of goodwill, did not irrigate all the land to which it was entitled last
summer, but it irrigated a substantial amount of land that it would not have
been able to irrigate if the juniors hadn't come forward as part of this
agreement and let the water run down.

My view was that in Aamodt, the court was poised and, in fact, set an
expedited hearing schedule for the purpose of hearing this, and now in
Aamodt, the judge has ordered us sua sponte (meaning "on his own") to come
up with an administration plan for the rest of the case. I think the judge
there is getting real hot to start enforcing the senior water rights.

Well, that is how it should be. That is a good result, but it is rare. On the
Gila River in Arizona, Indian reserved water rights are not even close to
getting adjudicated for the first time, so that twenty, thirty years later, the
Indians who have the senior rights in Arizona are still not being protected.
There is something wrong with the general stream adjudications like that.

Let me tick through a couple other points here about general stream
adjudication. I did tell you about the role of the state administrative agency
and the state itself.

In Wyoming, we are in a running battle with the state that is quite
frustrating and upsetting to me. The state agency plays the role that I
described in the Walton case, where it just reports on what evidence is
available and then goes to the court. There is a big procedure for the parties

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