Opposition calls for halt to A-LP work
Citizens Progressive Alliance files injunction in state water court

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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