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

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0954

Session f: Western Water Trends and Diredions

to object to the claims that are made and described in the report. But the
State of Wyoming repeatedly has not followed the procedure-I think, in part,
because the State of Wyoming is unclear about what its role in the
adjudicatory process is. .

The state said, "Well, we're the reporters. Why should we object to our own
report?" I say, "No, the state is a party to this case. Your administrative
staff in the state engineer's office is like an arm of the court. They are no
longer your staff for this purpose. You have to object just like anybody else if
you want to participate in the Walton trials. n

We had a big snafu, in which the state failed to object and follow the
procedures to the claims and then wanted to join in the Walton trial and
participate. We said, "No way, you didn't object. Everybody has to object."
So we went through a bit row over that, and spent four or five months and
countless thousands of dollars fighting over the issue.

The state has to stay out. In my view, the United States should make clear.
that the waiver of immunity under the McCarran Amendment was into an
adjudication in which the state may use its staff. But the administrative
staff should be very clearly understood as arms or staff of the court and not
staff of the state. Even the state is confused about the role of its staff. This
is no good. We are wasting time on issues like this over and over again.
I talked about phasing. General stream adjudications can be advantageous
because they bind all the parties. You are getting the Indian reserve right
quantified, and this is good as long as the phasing of the Indian rights is
done in a sensible way. That is, the senior rights ought to be done first and
not much later in the general stream alljudication.

The state procedural schemes under the McCarran Amendment are all over
the place, so depending on what state you are in, you have a slightly
different-or maybe significantly different-scheme for implementing the
McCarran Amendment general stream adjudication. Some state procedures
are very cumbersome. It seems to me that maybe some guidance to the state
courts to come up with procedural schemes that are more uniform, like the
typical rules of discovery, would be appropriate. Let's not make up these
unique procedures for general stream adjudications because they confuse
people. Why do we need something different from the general procedural
rules for any trial? Creating a hybrid process is not working. It's causing
delay. It's causing parties to spend money on things that are just mind-
bogglingly frustrating, like procedure.

Finally, let me just note that whether you are dealing with Federal or state
court, the simple fact of the matter is that there still is a lot of Indian
reserved water law, as you can see in my outline that I submitted for
materials. I'm not going to go over it now, but there are still a lot of

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