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Show Western Resources WRAP-UP- Indian water rights, oil shale and tar sands By Helene C. Monberg Vashington-"Coiifused." , That is how Assistant Interior ccretary Carrey E. Carruthers escribes the Administration's efforts hammer out a position on Indian viator rights. "We are in a pickle", Carruthers told estern Resources Wrap-up (WRW) on lune 30. "On the one hand, we have tradi-onally tradi-onally looked to the states to be in harge of water allocations," Car- uthers said, with a strong push from ongress on the federal government gencies to do so. "On the other hand," e continued, "the Indians traditionally ave looked to the federal government specifically the Secretary of Interior) s the Indians' trustee to protect their 'ater rights." I Even tho the federal government istorically has a conflict of interest I etween Indians and other water users, ie federal government cannot let this Dnflict so disable its representation on ehalf of Indians that it, in effect, enies them due process of law, the .S. Ninth Circuit Court of Appeals held n June 15 in the United States vs. ruckee-Carson Irrigation District et I. In this case the Court found the overnment failed to "assert a claim r water to sustain the Pyramid Lake shery" of the Paiute Indian Tribe in tevada. It called the government's spresentation of the Tribe's interests questionable." So it held the Tribe was ot barred, on the basis of res ad-ldicata ad-ldicata (an earlier case finally decid-i decid-i on its merits), from suing for amages an irrigation district which ad operated an irrigation project for )E.ie Bureau of Reclamation, as the . "istrict had not provided enough water , .) sustain the Pyramid Lake fishery, .-'he case serves as a warning to government govern-ment attorneys representing Indian "ibes to be faithful to their charge. MIXED SIGNALS mo lies The courts and others are sending ie nixed signals on the questions involv-ig involv-ig Indian water rights these days. on, The U.S. Ninth Circuit Court of Ap-; Ap-; eals ruled on June 1 that Boyd Walton, -ufcr., a non Indian purchaser of an Indian ed llottee's land, acquired a water right jchiating back to the establishment of an irei.Jidian reservation, in Colville Confederated Con-federated Tribes vs. Walton et al. Furthermore, Fur-thermore, the non Indian Walton could in:ontinue to use the same amount of lafcyater as had been allotted to the mi'revious Indian owner provided the non ndian continued to use it, the Court nil- ort But the Court said the state of liseVashington had no right to regulate ent'ater on a non navigable stream lir:cated on the Colville tribal reserva-bk'ion, reserva-bk'ion, so the state water permits held by ,at .Valton were null and void, according to ntntie Court's ruling. The Ninth Circuit Court itself urged rokne U.S. Supreme Court to take this ; gnase up on appeal. In a footnote at the feapnd of the case, it said: "State and edesderal courts, state and federal agen-t, agen-t, lies responsible in water rights administration, ad-ministration, and numerous Indian edenbes, allottees and their transferees, of .re plagued almost on a daily basis eth?ith the problems and uncertainties es mrrounding the issues discussed in this me pinion. This case presents an appropriate ehicle for the Supreme Court to give uidance and stability to an area of reat unrest and uncertainty in estern water and land law. A efinitive resolution is overdue. The lagnitude of the problem cannot be verstated. , Meanwhile the Bureau of Indian Af-jj Af-jj iirs (BIA) on Jan. 5, 1981, before the hange of Administrations, proposed ule making regulations which would Uow Indian tribes "within their reser-ations reser-ations to govern the use of all water Rights reserved for the tribe therein." Whe Reagan administration on March 3 extended the comment period on this et of proposed regulations until June, uslifter it had been buffeted by both sides. ,r 1? The Western States Water Council in lari&pril urged BIA to withdraw the pro-is, pro-is, iosal on grounds that it was beyond the s, Sureau's statutory authority, was un-uitWpported un-uitWpported by court decisions, and tody to-dy :olved questions of Indian sovereignty ety'hich should be carefully considered efore putting such regulations into ef- !Ct. $931 The National Congress of American s, 'ndians, which claims to represent 150 19 "idian tribes, likewise rejected the pro-liWosed pro-liWosed rule relating to Indian water titodes on May 29, at its mid year iduneeting in Spokane, Wash. David Dun-: Dun-: yejar, staff attorney for NCAI, told WRW of n June 29 the Indian tribes did not i Relieve the Interior Department and ie Secretary of his designees had any irisdiction over Indian reservations i;'ith relation to tribal water codes or In-e In-e f-ian water allocations. But other jn,0urces familiar with Indian water fights problems told WRW all Indian Vater codes must be approved by the ecretary of Interior. 57 CASES BEFORE COURTS AND FERC Before the courts and regulatory agencies on December 1980 there were some 57 cases involving Indian water rights of tribes located in Arizona, California, Colorado, Idaho, Montana, Nevada, New Mexico, Oregon, South Dakota, Washington, Wisconsin and Wyoming. One Nevada case has been in court since 1926! Among the most interesting in-teresting cases are 10 before the Federal Energy Regulatory Commission Commis-sion (FERC) concerning hydroelectric projects affecting tribes in California, Idaho, Montana, Nevada, Oregon, Washington and Wisconsin. Thirteen cases, seven involving Montana Mon-tana Indian tribes and six involving Arizona Indian tribes, are before the U.S. Ninth Circuit Court of Appeals. One case filed in a South Dakota court in 1980 seeks "general water rights adjudication ad-judication among all water claimants along the Missouri River and its major tributaries." Several sources within the Interior Department and on Capitol Hill told WRW it is the policy of this Administration Administra-tion to try to negotiate Indian water rights claims into agreements that can be put in to law. But Dunbar told WRW "we oppose negotiation." It is also the policy of this Administration to encourage en-courage economic development on Indian In-dian reservations. But Dunbar said when a new development develop-ment on tribal lands is ready to fly, the state affected "questions the tribe's water right, so it is forced to go to court to qualify it." NCAI at its Spokane conference con-ference passed a resolution in favor of a national Indian water policy. Dunbar told WRW Indians should strive for unity uni-ty on water matters, for practical developments, effective management and conservation of water on thier reservations. Like many other organizations, NCAI has not been able to get its officials in to talk with Interior Secretary James G. Watt, Dunbar said, but an NCAI contingent con-tingent has lined up Agriculture Secretary John R. Block to talk over land and water and forestry problems on July 14. The new omnibus farm bill makes Indian tribes eligible to sponsor small watershed projects. . No Indian water rights settlement or proposed settlement has so much riding on it as that of the Ak-chin Indian community com-munity in Arizona. It appears to be coming unglued. If it does come unglued, it could deter the Gila River Indians of Arizona from agreeing to an allocation of water from the Central Arizona Project (CAP) and the Papago Indians from negotiating a settlement of their claims in Southern Arizona. This would hold up the completion of CAP, which is the last thing that the Arizona Establishment wants. It would also shelve carefully laid plans for a half dozen Indian tribes, including a couple in Montana, to settle their water claims via the legislative route, according accor-ding to several sources who talked to WRW June 29. The Ak-chin Indian community in Arizona settled its water claims under PL95-328 enacted into law in 1978. The Tribe agreed to waive all of its claims against the United States and other parties par-ties in return for an agreement by the federal government to provide a stable supply of water to meet tribal farming needs. Under the agreement, the Tribe was to get a supply of 85,000 acre feet of water from federal lands, and former Interior Secretary Cecil D. Andrus and the Tribe entered into a contract to provide pro-vide for the delivery of the water. Cost of the delivery works was expected to come to $43 million over a five year period, beginning in 1979, according to the House report on the legislation (95-954). The Ak-chin sought a small reclamation reclama-tion loan to help finance the cost of one farm development, anticipating they would receive their first water under the agreement in January 1984, tho the Administration has a moratorium on approvals of new loan applications. Meanwhile, the cost of the delivery system has escalated to about $86 million, and the Office of Management and Budget has questioned the whole agreement. It has come up with some alternatives, and it has asked the Interior In-terior Department to do the same. Historically, one of the ways that Congress has settled Indian problems is by federal funding. OMB's backgrund papers relative to Ak-chin- question whether throwing federal $$$ at the Ak-chins' Ak-chins' problem of a lowered water table will solve its problem, particularly as the water table in Arizona's Santa Cruz basin is dropping so fast. OD1 SHALE AND TAR SANDS The oil shale and tar sands pot is beginning to simmer here. Assistant Interior In-terior Secretary Garrey E. Carruthers told the House Mining Subcommittee on June 25 the Interior Department plans to continue the Department's prototype lease program up until 1983. Meanwhile, Carruthers told Western ' Resources Wrap-Up on June 30 the Department is designing a permanent program to put into place late in 1983 or early 1984. It would take legislation to put a permanent program in place, Carruthers Car-ruthers pointed out, and an environmental en-vironmental impact statement would have to be prepared. The House Mining Subcommittee on June 25 reported out a comprehensive oil shale bill (HR4053), despite Administration Ad-ministration requests to act only on off site leasing; a bill by Rep. Dan Marriott, Mar-riott, R-Utah, (HR1409) and a bill by Sen. William L. Armstrong, R-Colo., (S1073). Both bills authorize a second lease to oil shale lessees to provide space for putting up retorting facilities and disposal of spent shale from the lease tract being mined. Both Carruthers, in testimony before the House Subcommittee, and Daniel N. Miller, Assistant Interior Secretary for Energy and Minerals testifying before the Senate Energy and Mineral Resources Subcommittee on June 25 urged fast action on the Marriott-Armstrong Marriott-Armstrong legislation so that the Rio Blanco Oil Shale Co. can move ahead with development of the C-a tract in Colorado. Rio Blanco plans to develop C-a by open pit mining, and with another tract available for retorting and waste disposal, Rio Blanco could make maximum recovery of the oil shale resource in C-a, they testified. HR4053, co-sponsored by Marriott and Chairman Jim Santini, D-Nev., of the House Mining Subcommittee provides pro-vides for off site leasing. It also authorizes the Secretary of Interior to lease tracts larger than 5120 acres to support a commercial operation, allows for multi mineral leasing in oil shale country, and raises the statutory limit on leasing by one entity from one per state to two per state and four nationally. national-ly. Santini plans to bring the bill up in the House Interior Committee about July Ju-ly 8. The House Interior Committee reported out HR3975 on June 24 to facilitate the leasing of tar sands in Utah. It hopes to put both bills on the House suspension calendar to facilitate House action in July. Meanwhile, the Senate Energy and Minerals Subcommittee plans to hold a hearing on July 17 on S1032 by Sen '1" Henry M. Jackson, D-Wash., which is similar to HR4053. The Department of Energy has received an extension of time to make a decision on syn fuels assistance applications, ap-plications, including two for oil shale. |