A-LP opposition digs in its heels
Group vows to take fight as high as U.S. Supreme Court

Heavy equipment graces the shorelines of the Animas River, future site of the A-LP pumping station. Although work on the water project continues, the opposition group Citizens' Progressive Alliance currently has filed lawsuits filed against A-LP, several of which claim that the project's water rights are invalid./Photo by Todd Newcomer.

by Will Sands

Earth movers continue to expand a large hole on the edge of the Animas River, and the Animas-La Plata Project is becoming more and more of a local fixture each day. While many are accepting the massive water project's place in Durango's future, some are still fighting doggedly to prevent A-LP from being completed. And one group is pledging to take the fight as high as the U.S. Supreme Court

"We're not going to go away," said Phil Doe, chair of the Citizens' Progressive Alliance. "We can't. It would be like watching a crime and turning your back. It's not because we're poor losers. This is a shining example of bad government."

The CPA has spent the last three years fighting A-LP on several legal fronts. During that time, the watchdog organization has filed six separate lawsuits against the Department of Interior and the Animas-La Plata project. The most significant of the alliance's legal actions alleges that the necessary upkeep on the A-LP water rights, also known as diligence, has not happened and as a consequence the rights no longer exist.

"So here they are constructing apace even though they don't have a water right," CPA attorney Sunny Maynard said. "They are spending millions of taxpayer dollars to divert water that they have no right to."

Doe noted that this expenditure and the progress on the project are not dissuading his organization, saying, "The issue still needs to be resolved. Do the Utes really have these water rights?"

Five of CPA's suits are still awaiting resolution, and the organization charges that it's being stonewalled by the federal and state powers that be.

"We feel like we've been spinning our wheels for the last three years," Maynard said.

Construction workers continue excavation of the A-LP pumping plant Tuesday. When completed, the plant will siphon as much as 280 cubic feet per second of Animas River water uphill to Ridges Basin. However, some opponents say that day may never come./Photo by Todd Newcomer.

Maynard alleged that the CPA's opposition, which includes the Department of Justice, the Southern Ute Indian Tribe and the Southwestern Water Conservation District, has taken a roundabout approach to the legal fight. Rather than arguing the issues, Maynard said they've worked to keep the issues from being raised.

"What our opponents have tried to do throughout is kill the messenger and prevent us from being heard," she said. "They're trying to burn up our resources, and we have no resources. We're still serious, but we're getting stonewalled."

"What our opponents have tried to do throughout is kill the messenger and prevent us from being heard," she said. "They're trying to burn up our resources, and we have no resources. We're still serious, but we're getting stonewalled."

As a result, the CPA is considering taking its challenge against A-LP in a new direction. Maynard cited a 1971 U.S. Supreme Court decision, which she says voids the Southern Ute and Ute Mountain Indian Tribes' claim on the water. She argued that at the time, the high court ruled that the U.S. debt to the tribes had already been settled. Interestingly, the Department of Interior filed for water rights for the Animas-La Plata project just a year later.

"Those decrees are void because they were preempted by the 1971 Supreme Court decision," Maynard said. "The year after the Supreme Court ruled that there was no reserved water right, the Department of Interior and the Department of Justice filed."

Doe agreed, saying, "The only explanation they've ever given us is that there is an 1868 agreement with the Utes. That agreement has been shredded dozens of times since."

When Maynard has tried to raise this issue in current deliberations, she has not been permitted. "They haven't responded to the Supreme Court argument," she said. "They just prevent us from raising it."

On this basis of this issue, the CPA has decided to take the fight up a notch. The issue can be argued before the U.S. Supreme Court. However, the organization is currently considering whether that would be prudent. Another option is taking the same legal question to Federal District Court first.

"We've been waffling on whether to take this the Supreme Court, but we plan to take the fight to the top," Maynard said. "It's tough to start another case when we don't have resolution of the existing ones. But we're beginning to wonder if this court is going to rule on these cases anyway. Maybe, it's time for a fresh review."

Doe added, "This could be a way to get around the endless roadblocks the Department of Justice keeps throwing up."

And Doe cautioned the Durango public against getting too comfortable with the Animas-La Plata project. There might just be some surprising news from the opposition in the near future.

"It's not done," he said in closing. "We don't have to put water in that monster if there's no legitimate water right."