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Citizens Progressive Alliance files injunction
in state water court
by Amy Maestas
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An ALP crew member mends a fence
along the banks of the Animas River on Tuesday.
Last week, the Citizens
Progressive Alliance filed an injunction in state
water court calling for an immediate end to construction
on the controversial
water project./Photo by Todd Newcomer. |
A citizen’s group opposed to the Animas-La Plata project has
revived its long-standing argument and put punch behind it by filing
an injunction asking the state water court to permanently halt construction
of A-LP.
Last week, the Citizens Progressive Alliance filed
the motion. It is one of many legal actions the group has taken to delay,
fight or stop the project. This time, group members want courts to go
so far as stopping the project – long in construction – from
being completed because they believe A-LP has been “predicated
all along on a nonexistent, even fraudulent, claim.”
CPA’s argument is one that the group has advanced since the 1990s,
essentially disputing that the Southern Ute Tribe’s 1868 water
rights on the Animas and La Plata rivers are valid. In 1999, the group’s
Denver lawyer, Alison Maynard, put out a 15-page memo asserting that
an act Congress passed in 1880 terminated Ute ownership of reservation
lands. The federal government established the reservation in 1868, which
gave the tribe claims to senior rights on streams in the San Juan River
Basin.
After that act, the Utes didn’t have a home until 1938. That year,
Congress created what is known today as the Southern Ute reservation,
located in La Plata County. Maynard and CPA members says that the 1938
date should be used as the Southern Utes’ water rights priority
date – not 1868.
At public meetings held by the Interior Department
in 1999, CPA made these statements. But only now has the group taken
the extra step of taking legal action based on them. Maynard said that
although the injunction looks like a last-ditch attempt, the timing
is due only to recent legal discoveries she made.
Maynard explained that consent decrees between the
courts and the tribes in 1991 are contrary to the U.S. Supreme Court
ruling passed down in 1880 concluding the Utes’ reservation no
longer remained intact. The 1991 consent decrees, which back the 1868
priority date, came from a state court and therefore do not take precedent
over the federal court.
She also said that the group was waiting for nearly
a year for courts to make it a party to the case, delaying CPA from
challenging the 1991 decrees.
Still, Maynard says the issue remains pertinent, no
matter how long the group has made the argument, because CPA believes
a decision made by the Supreme Court in 1971 undoubtedly mandates that
the Southern Ute Tribe’s water rights were given in 1938.
In that case, the tribe asked the court to side in
favor of the federal government giving it more money for former reservation
lands sold during 1895 and 1938, when the lands were available for homesteading.
The tribe had already been compensated in 1950 after the U.S. Court
of Claims awarded it millions of dollars in damages. Maynard says at
that time, the tribe signed a judgment acknowledging that the reservation
had been extinguished in 1868.
Scott McElroy, Denver-based attorney for the Southern
Ute Tribe, said that in his view, CPA’s argument and subsequent
injunction request are weightless.
“They are wrong, both procedurally and as a matter of substance,” he
said.
McElroy contends that although the Southern Utes did
not have land from 1895 to 1938, the tribe “retained an interest
in the land” and its water claims stem from that. During that
time, the U.S. government held the land in trust, and because it was
never conveyed to the public, A-LP lawyers and proponents say the 1868
water rights are valid.
That question will now be up to state water court to
decide. The Citizens Progressive Alliance officially filed its motion
with the court Sept. 27.
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