What Really Happened in Animas-La Plata

(Orig. published Jan. 20, 2010)

[I wrote the following for Wikipedia, but then got into a battle with the project proponents, who kept replacing the true–if somewhat sarcastic–story I had posted with their “official version.” I will shortly be adding links to documents to support what I have said, in this blog.

The long and the short of it–if you’ve googled me–is that I have been ridiculed mercilessly on the web by my opponents in this case, apparently to divert attention from the very real multibillion-dollar frauds they have committed, along with lies to Congress, to the water court, and to the public.]

Wiki says:

“The Animas-La Plata water project is being built to fulfill the water rights settlement of the two Indian tribes that live in Colorado–the Ute Mountain Ute Tribe and the Southern Ute Indian Tribe.”

Well, yes, that’s what the promoters of this billion-dollar boondoggle say. Unfortunately, there was no consideration for the “settlement,” because the Utes never had a valid claim for water.

The Utes’ reservation was extinguished by an Act of Congress in 1880. During the 20th century, they were permitted by acts of Congress to sue the government several times to recover for the property interests disposed of from their reservation, recovering, by 1950, over $1 billion (in 1998 dollars). In that year (1950), they signed several consent judgments agreeing that this was the last time they would come to court. They agreed they would never seek any more compensation for their extinguished property interests and that the 1950 judgment was res judicata.

However, the very next year, 1951, they were back in court with more claims for compensation. The Court of Claims approved their application, with one lone dissenter, Judge Skelton, who was outraged by it. He said:

     “I cannot agree with the reasoning of the majority nor with the result they reach. In my opinion, the            Indians in this case, along with other Southern Ute tribes, were paid $31,938,473.43 in 1950 for the identical land involved here, together with other lands. This was the largest judgment ever awarded by this court since it was established in 1855. The attorneys who represented the Indians in the recovery of this tremendous judgment received an attorney fee of $2,800,000. [See Confederated Band of Ute Indians v. United States, 120 Ct.Cl. 609 (1951).] As will be seen in the following pages, the same Indians and the same attorneys are before the court again in this case asking that they be paid again (twice) for the same land, and the opinion of the majority is going to allow them to get this double payment. This results, in my opinion, in a shocking giveaway of millions of dollars of public money of the United States, and I cannot agree to it.”

191 Ct.Cl. at 32.

The United States Supreme Court, in an 8-1 decision authored by Justice Brennan, agreed with Judge Skelton and reversed the Court of Claims in a 1971 opinion, United States v. Southern Ute Tribe or Band of Indians, 402 U.S. 159. True to form, however, the Utes–through their Anglo attorneys–were back in court the very next year, 1972, with more claims arising from their extinguished reservation, this time for reserved water rights.

So now we look at the so-called Animas-La Plata Project (ALP), which is now being built to “settle” those claims for reserved water rights, claims which were prohibited because of the 1880 Act of Congress, the 1971 Supreme Court opinion, and the Utes’ own agreement in 1950 that they would never come back to court again to seek more compensation for their lost property interests. In other words, the American taxpayers are being required to fork over a billion dollars to build a water project to “settle” nonexistent claims. And ALP is not even a “project”–it’s only a hole in the ground. There are no plans to take the water anywhere: the original irrigation project was completely scrapped, also by an Act of Congress and the consent of the interested parties themselves, since taking irrigation out was the only way they could get it funded. We the taxpayers will be paying for this boondoggle for years, with interest, until a use for the water is discovered. And then we will have to build them a distribution system, which will be untold billions more, money never factored into the original cost. Anomalously for a Bureau of Reclamation project, all project costs have been transferred to the American taxpayer! That’s because, since there is no use for the water, there are no water users to pay for it.

There are numerous other problems, including egregious frauds committed by the project’s attorneys in the Colorado water court, and lies to Congress. The frauds in the court started in the 1960’s, possibly in the 1950’s. The applicant for the water rights was the Southwestern Water Conservation District, whose attorney was a man named Bill Eakes. In 1963, Eakes filed the statements of claim for ALP water rights in the court, as the SWCD’s attorney; in 1965, he argued them to the referee; then, in 1966, he became the judge and granted the claims. Thus, he signed decrees, as the judge, awarding the very water rights he had filed for as the attorney! And then he signed decrees granting diligence on these rights several years in a row (and there is strong evidence that the applications for diligence were forged and placed in the court file long after the fact, by him personally). This was, again, when the A-LP was strictly an irrigation project, dreamed up to benefit the Anglo landowners in the La Plata drainage–the Indians were not involved in any way–but it was never economically feasible, according to the Bureau’s own studies. Eakes’s prodigy, an attorney named Sam Maynes, sat down with Judge Eakes and a Bureau engineer in the water court later in private conclaves to change the decree as they saw fit, adding new structures and uses in order to try and get the project funded, never with any of the notice to the public which the law requires.

The court records from these proceedings have been altered in numerous ways; many documents are missing which should be in the court file; transcripts are missing reporter certifications and pages; and other evidence is just gone. In fact, the file reveals that an adjudication held in the early 1950’s, which should have been closed and in which a decree should have issued on the evidence by 1952–prioritizing water rights all of which would have been senior to the ALP–was irregularly reopened by Eakes when he became the judge. It is highly likely that a decree from the 1951 proceeding was issued, but later disposed of, in order that Eakes and Maynes could draft a new one in 1966 and insert an ALP water right into the existing priority list, thus giving it seniority over many other water rights it should not have had.

In the mid-1980’s, Maynes and his cronies had still failed to obtain Congressional authorization for the project, so this is when they joined forces with the Utes (who were Maynes’s clients in other matters, anyway) and “settled” the applications for reserved rights by giving the Utes the Animas-La Plata project. This moribund and economically infeasible irrigation project was thus magically transformed into an “Indian Project.” The Utes’ reserved rights applications are the very ones discussed above, illegal on their face because filed in violation of the 1971 United States Supreme Court opinion and 1880 Act of Congress. Obviously, reserved water rights could not have survived the 1880 extinguishment of the reservation, since they are implied from a reservation of land. The proceedings in water court from 1972 to 1991 then were themselves violative of state laws and due process. There were over 100 objectors in the case who were just blown off by the powerful interests who were feeding at the ALP trough, with the blessing of the court. These 100 objectors never stipulated to any decree, yet a decree was entered. In fact, everything that happened in the court happened ex parte: these objectors were not served notice of any of it. They were just excluded. And not much is of record in the court case, anyway–the “settlement” was a secret backroom deal which the court, Judge Al Haas by that time, just signed off on, in 1991, when he got a letter from corrupt Colorado deputy attorney general Lois Witte saying the Big Guys have settled now so please sign our decree. This letter also was not served on the 100-plus objectors, nor is it in the court file. And, as mentioned, the “settlement” was only among about ten parties, the powerful development interests. The other 100 objectors were totally ignored.  They did not even get served a copy of the “decree,” in order to thwart their appeal rights.  If you think that sounds like misconduct, of every attorney and party involved, as well as the judges, you are, of course, right.

The biggest joke of all–a sick joke on the taxpayer–is that there is no use for the water. There is no “project,” in other words: there is only a hole in the ground, Ridges Basin Reservoir (now called Nighthorse Reservoir, dubbed “Nightmare Reservoir” by locals). There has never been any distribution system proposed, because there is no way to use the water. In this “reserved rights case,” no quantification of the amount necessary to fulfill the purposes of the reservation was ever done–at least, none was presented to the court, which makes this “project” different from every reserved rights case ever litigated in this country. There was only this “settlement” executed by the federal government, the State of Colorado, the Southwestern Water Conservation District, the Animas-La Plata Water Conservancy District, the two Ute tribes, and a couple other water districts, most of whom were represented by Maynes. (The Bureau of Reclamation in Durango even leases offices in a building owned by Maynes.) The settlement has no basis in any engineering anywhere. These interests hogged all the water in SW Colorado, from nine streams (never even thought of in connection with the original irrigation scheme), and gave it to the Ute Tribes. And this is an important point: this is almost all of Colorado’s remaining allocation of Colorado River water, under the Compact. It has been given away to other sovereigns.

In the mid-1980’s, the SWCD got Congressional funding and EPA approval for the project, now as an “Indian water rights settlement,” by agreeing that there would be no irrigation. Yet the sole purpose of the original project was irrigation: thus, the only possible use for the water was removed by an Act of Congress. Representatives of the SWCD, including their attorneys Sam Maynes and David Robbins, appeared before Congress and swore that they were dropping the use for irrigation, in order to get the funding. However, despite their statements to Congress–and despite never even stating, in an application they filed for diligence on their water rights in 2001, that they were seeking diligence on the use for irrigation–David Robbins assured the water court that they had never meant to give it up, and diligence as to irrigation was decreed. Congress and the EPA were lied to, in other words. These people never had any intention of giving up irrigation.

Another incredible oversight on the part of the ALP attorneys is that they lost the water right for Ridges Basin Reservoir due to their failure to file for diligence on it in 2001. But never mind. As has been typical conduct for them, they created one out of thin air–a total fiction, as to which there was no public notice and no adjudication. They just slipped it into the diligence decree they drafted, so magically there was diligence on that, too, and the court signed it. It is a fraud, and here are the attorneys responsible for it: David Robbins, Susan Schneider, Scott McElroy, Jennifer Hunt, Eve McDonald, and Dan Israel.

Beginning in 2001 and 2002, Citizens’ Progressive Alliance contested both the diligence proceedings, and applications to “change” the reserved water rights, in good faith in the water court. Its members include a number of senior water rights owners in Colorado and New Mexico who have had their rights simply stripped away by the ALP deal. CPA has been the subject of sheer harassment by the other side for eight years. The proponents just played games in the court to buy time while they dug their hole. The water court, Judge Gregory Lyman by that time, ceded all control over case management to these project attorneys named above and smiled on the proponents’ attorneys’ misconduct. CPA could not even get any disclosures out of them, as the rules require. The rules didn’t apply to the ALP proponents, in Lyman’s court. They were permitted to draft numerous “scheduling orders” exempting themselves from all deadlines and other requirements imposed by the rules, so they could get their project built before any of CPA’s claims were ever decided. CPA never even GOT any disclosures: a billion dollar water project, and the United States’ attorney, Susan Schneider, disclosed not a single person with knowledge of it, nor a single document other than a handful which were already publicly available. When CPA’s representatives met with project attorneys two years into the case, after CPA finally got the court to set a date for the proponents’ disclosures, Susan Schneider said to us flat out, “You’re not getting anything.” And she was right: CPA didn’t get anything. CPA’s attorney Alison Maynard [yours truly] moved to compel and for sanctions, and my motion was not only denied, but Judge Lyman warned me I would be subject to sanctions, myself, if I ever moved for sanctions again!  So much for enforcement of the rules. CPA didn’t get any.  Lyman also threatened me with sanctions if I used the word “Orwellian,” at one point.  So much for the First Amendment!

Jennifer Hunt, Robbins’s associate, also waited until the last day in the period in which discovery was open–it was open for CPA all of two months–to disclose five new witnesses. Sharp practice, to say the least. At the reserved rights trial, CPA had an EPA official, Wes Wilson, ready and willing to testify about the violations of environmental laws and the stipulations the applicants had made to Congress, and how it came to pass that his own disapproval of the project was overridden, and Judge Lyman would not let him testify.

In addition, CPA knew, from other sources, that the practicably irrigable acreage of the reservation had been quantified by both the State of Colorado and the federal government many years earlier, but despite FOIA requests; a FOIA suit in New Mexico; open records act requests in Colorado; and demands for production of documents pursuant to Rule 34 in the water cases, CPA never got ANY of these reports–and they are strictly factual, as engineering. There is nothing confidential about them.

After being jacked around for five years in the water court, only to see Lyin’ Lyman rubberstamp everything the other side asked for and deny CPA everything IT asked for, CPA went to the Colorado Supreme Court, where it saw its diligence appeal get dismissed on a pretext and no opinion whatsoever issue on the reserved rights appeal, 07 SA 100. In 07 SA 100, the Court just issued a one-line order “affirming the decision of the Division 7 water court.” Shucks, I bet you thought the Supreme Court had a duty to determine the issues brought to it on appeal, or at least to mention them! What about the constitutional right of appeal?? And heck, CPA showed the blatant violation of a United States Supreme Court decision!  And heck, we showed the judge who granted the initial decree had been the attorney who filed the very application!  But the Colo. Supreme Court didn’t think it worthwhile to decide, or even mention, any of those issues. And it didn’t publish this embarrassing excuse for an appellate opinion, either, showing it knew, itself, it was doing something highly irregular, basing its decision not on the evidence or the law, but on impermissible considerations it wasn’t about to disclose. It just swept the case under the rug. Obviously, if the Colorado Supreme Court mentioned the little problems CPA had identified, it would then have to decide the issues in CPA’s favor–like the 100 objectors in the case who never stipulated to the “decree,” and were never served anything else in the case, just blown off by the development interests and the court; like the fact there is no use for the water whatsoever, and the “project” is totally speculative; and that the Utes and their attorneys, particularly the United States Department of Justice, and the Colorado courts are brazenly thumbing their noses at a United States Supreme Court decision and Act of Congress.

And then there is this string of fraudulent court decrees the ALP attorneys have caused to be entered, treating the water court as their own private playground. Janice Sheftel, and of course her mentor (and law partner) Sam Maynes, kept adding new uses into every diligence application in the past, uses which were never the subject of public notice or any prior diligence decree. Nothing but fraud, all the way around, and Judge Lyman and the Colorado Supreme Court not only looked the other way, they actively enabled it, and acted like CPA had brought no issues to them for determination, at all.

The Colorado Supreme Court has some other serious problems; notably, CPA got three justices of the seven recused from its reserved rights appeal. One in particular, Greg Hobbs, has made public statements advocating for the Animas-La Plata project. He has repeatedly accepted gifts and money and other favors from the Southwestern District and its attorney David Robbins (who is his good friend) and engaged in numerous ex parte contacts with them while our appeals were pending, and before. While CPA did get him recused in the reserved rights case, he did not recuse himself in the diligence case–instead, he unlawfully participated in the order dismissing CPA’s appeal. CPA’s attorney (me) has since found herself, for the last 2-1/2 years, having to defend against never-ending groundless disciplinary charges brought against her, as well as unwarranted sanctions imposed by other courts she is practicing in–to the tune now of over two hundred thousand dollars–which she believes Hobbs is behind. In other words, she believes she is being retaliated against for exposing the corruption in this project and in the courts, and for exposing Hobbs’s misconduct in particular.

So: a huge boondoggle, and at the bottom of it corruption in the Colorado courts. In addition, the Southwestern Water Conservation District is itself nothing but a racket. It is a money-laundering enterprise. It has no customers, does not supply water to anyone, has no works, no pumps or pipelines (although it now does have this big hole in the ground American taxpayers paid for). The SWCD exists only to tax and speculate in water rights. It brings in about a million dollars a year in tax money and it will not reveal where this money goes (although it does have two law firms working for it, both of which had attorneys present during our trials, billing the SWCD between $1,000 and $2,000 per hour). It has shown CPA bills from lobbyists, such as Ray Kogovsek in Pueblo, which say simply “Lobbying: $25,000,” with no itemization–no indication whatsoever how many lunches Kogovsek bought for which Congressional reps. And it’s not simply that $25,000 buys a lot of lunches–it’s a MILLION BUCKS A YEAR buying lunches. Or buying something else. Sure wish we knew what–but, of course, we can make an educated guess.

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