Cease-fire called on the Animas-La Plata front

  • Cartoon of ALP monster

    Rob Pudim
  • Bruce Babbitt and Lt. Gov. Gail Schoettler

    Electa Draper/Durango Herald
  • Site of the proposed pumping plant on the Animas River

    Christopher Tomlinson
  • Ray Frost

    Christopher Tomlinson
  • Leonard Burch

    Christopher Tomlinson
  • The site of the proposed Ridges Basin Reservoir

    Christopher Tomlinson
 

ARVADA, Colo. - It is a more and more common scene in the West. People who are personal and professional enemies, people who let no opportunity pass to say something nasty about each other, are this morning sitting together at tables arranged in a large, hollow square. Behind them are colleagues and supporters who occasionally roll their eyes or leave the audience to whisper advice to those at the table.

In the hollow space at the center of the tables, lies, figuratively, the beast. It is the $710 million - and counting - Animas-La Plata Project, named after two rivers in southwest Colorado that it would forever alter.

Around the table are those who see the project as their salvation and those who see it as their worst nightmare: Native Americans, environmentalists, farmers, ranchers, government officials and, most of all, lawyers.

The 70 participants in this sterile banquet room at the Arvada Center for the Arts and Humanities have been brought together by Colorado Gov. Roy Romer and Interior Secretary Bruce Babbitt. It is a high-risk strategy - a desperate consensus effort to resolve a desperate situation. This bitter feud has sapped Colorado's political energies for a decade. Animas-La Plata may be to Colorado what abortion is to the nation: a litmus-test issue that twists every aspect of political life.

Yet here they are around the same table. No one knows for sure what has driven them here. It may be a kind of exhaustion that Colorado Rep. David Skaggs alludes to when he says: "A consensus approach is more likely to reach conclusion in our lifetimes."

Romer, a fervent advocate of Animas-La Plata, puts it this way: "This problem needs a resolution. We've had a lot of advocacy over a period of time, but I don't think we've had the opportunity to sit together with all of the parties and talk."

Romer is spending some chunk of his political capital on this process, but he wasn't optimistic that A-LP's dams, pumping stations and reservoirs would ever be built. "It's clear to me there are obstacles out there that may be insurmountable."

If anything can end the gridlock, it's the agreement that most negotiators carried into the room: that the descendants of Indians who once roamed much of Colorado, and who are now confined to two reservations in the arid San Juan Basin in the southwestern part of the state, have a right to water. Romer opened the day by telling the negotiators:

"I take these obligations very seriously; the Southern Utes and the Ute Mountain Utes have important water rights, and that should not be disputed. The challenge for us today and beyond is to determine how we will satisfy those rights."

A-LP is like a treaty

The present Animas-La Plata Project is designed to satisfy these rights. The A-LP critics in the room - people like Maggie Fox of the Sierra Club, Ray Frost of the Southern Ute Grassroots Organization, and Lori Potter, who was until recently with the Sierra Club Legal Defense Fund - delight in criticizing the Rube Goldberg nature of the design: the way it would pump water 1,000 feet up from one river to another, the many miles of canals and pipes, the reservoirs to store the water, the hundreds of millions it would cost, the enormous amount of electricity it would take to keep the three pumping stations going, the low economic value of the crops it would finally produce.

But the genius of the project doesn't lie in its engineering; it lies in its politics. A-LP was designed by the proponents in the room - led by water attorney Frank "Sammy" Maynes, now one of the backbenchers - to create a coalition powerful enough to extract the millions of dollars needed from the U.S. Congress. As the proponents and Colorado's elected officials see it, this project is "owed" Colorado, the way Arizona was "owed" the Central Arizona Project and California was "owed" Hoover Dam. It's a birthright.

From the perspective of political design, A-LP is a work of art. It has bound together almost half of those at the negotiating table - two Indian tribes, Anglo farmers, and Anglo towns in Colorado and New Mexico - in an interracial and interstate coalition that also crosses political lines. In the recent Senate campaign in Colorado, candidates Tom Strickland, a Democrat, and Wayne Allard, a Republican, agreed on almost nothing except Animas-La Plata. Some speculate that Sen. Ben Nighthorse Campbell would still be a Democrat if environmentalists hadn't tied up A-LP.

But it is being tied up, smothered in a bear hug administered by the environmentalists and bureaucrats who are also at the table. This year, when the Bureau of Reclamation completed its final supplemental environmental impact statement, with 13 appendices, the hug got tighter. The EIS fills a four-foot bookshelf, but its length didn't impress the Environmental Protection Agency; the agency found fault with the project's effect on water quality and the Bureau's failure to examine alternatives.

So the EPA threatened to refer A-LP to the President's Council on Environmental Quality, which is a sort of purgatory that projects go to when federal agencies deadlock. At best, it would place A-LP deeper within the Beltway and farther from local interests.

That's the regulatory gridlock. In the courts, lawsuits are in play: three against the Bureau by opponents, and one against the EPA by proponents. A court injunction intended to protect archaeological resources forbids the Bureau to move dirt; a congressional directive orders the Bureau to immediately move dirt.

The project is also knitted into a plan intended to recover the endangered Colorado squawfish and razorback sucker downstream in the San Juan River. That's where the Endangered Species Act comes in. And A-LP is part of the negotiations over salt, selenium, mercury and heavy-metals loading in rivers throughout the Four Corners. That's where the Clean Water Act comes in.

This sampling shows why the opponents in the room have been able to stop the bulldozers. Only overwhelming consensus can clear the road. So Gov. Romer brought everyone to Arvada to talk and, maybe, to reach an agreement.

A-LP's deep roots

Any agreement will grow out of the project's history. A-LP is the brainchild of an era when the federal government was replumbing the West. First authorized by Congress in 1968, its roots go back at least to the 1930s, when early boosters envisioned a huge dam close to the headwaters of the Animas River, high in the San Juan Mountains. Back then, A-LP supporters wanted to move 265,000 acre-feet of water from the Animas River to the La Plata River to water a dry plateau.

Gradually the project got scaled back, and forced out of the mountains and onto the flats as supporters adapted to the fiscal and environmental realities of the day.

Then, in 1972, an ignored people intruded on this grand plan. The Southern Ute and Ute Mountain Ute tribes went to court to claim 93,000 acre-feet of water on seven Colorado rivers. Their rights, under the U.S. Supreme Court's Winters Doctrine, go back to 1868, the year the tribes' treaty with the U.S. established the two reservations.

Under the treaty signed by Chief Ouray, the Utes had agreed to become farmers. Treaties like these, and the water rights they implicitly convey, are common across the West; but they are always ignored by the Bureau of Reclamation and the Anglo beneficiaries of federal projects.

By the time the Utes went to court in 1972, much of the Southern Ute reservation was a mix of Indian and non-Indian land, and the water in the basin was in use. Over the next decade, as Ute claims worked their way through the courts, the Anglo residents of the San Juan Basin came to realize there was a cloud over all non-Indian water rights, including A-LP.

It didn't come quickly, but the Anglo backers of the project eventually adapted to the Ute threat, turning A-LP into a shield which both protected existing water uses and paved the way for new uses. It did this by hitching A-LP to a water rights agreement between the two Ute tribes, Colorado, New Mexico and the U.S.

This was no casual event. The agreement - the 1988 Ute Indian Water Rights Settlement Act - was ratified by the tribes, by the U.S. Congress, and by the two states, giving it a massive imprimatur. It has been called a model of cooperation that avoided years of litigation and racial schism. Under it, the tribes agreed to drop their "paper" water claims in court in exchange for a guaranteed supply of "wet" water from the Animas-La Plata Project. The key to the agreement was the idea that A-LP's "new" water would make everyone whole - the existing users and the Utes.

In addition to agricultural and municipal water from the now-built Dolores River project for the Ute Mountain Utes, the agreement promised the tribes 60,000 acre-feet of water per year from A-LP, plus $60.5 million in economic development funds.

It also avoided disrupting existing communities. If the Utes had won in court, 34,000 acres of irrigated non-Indian land and the associated towns would have been threatened. So the Anglo interests got security for existing water rights and a reservoir full of new water out of A-LP. On the Indian side, the Utes married into a very powerful political coalition - one that they thought could certainly deliver to them 60,000 acre-feet of water a year.

So, wrapped in its Indian blanket, A-LP survived the late 1980s, a time when soaring costs and environmental problems felled many Bureau projects (HCN, 3/22/93).

Nothing else has worked

At the meeting in Arvada on Oct. 9, Leonard Burch, the Southern Ute tribal chairman, reminded participants of this history. "A-LP was the engine that drove the settlement of the tribal water claims 10 years ago," he said, and nothing has changed. "Without new storage facilities and development of additional water supplies" the Ute water rights can't be met.

The Utes won't let anyone off the hook, he said. "We do not intend to revisit what we did 10 years ago. Instead, we want to find solutions to the problems that are delaying construction of the project."

The group heard the same impatient message from Judy Knight-Frank, the Ute Mountain Ute tribal chairwoman. "Years ago, when they put us on the reservation, they said, 'You will be farmers.' How do we do that without water? They said, 'We will give you water.' ..." That was a century ago, she said, and now, "We want our water. We want our storage for it."

The two tribal leaders were part of a four-sided table. At one end sat Romer, Colorado Lt. Gov. Gail Schoettler, whose portfolio is consensus, and Babbitt. The A-LP proponents - the tribes, the Anglo farmers' Animas-La Plata Water Conservancy District and San Juan Water Commission - sat on a second side. On the third side were the environmentalists and Jim Lochhead, who runs the Colorado Department of Natural Resources, representing Colorado. On the fourth side was a melange: New Mexico interests, Interior attorney Joseph Sax, and the EPA.

The table needed far more than four sides to represent all the interests. Bruce Babbitt alone was being pulled in three different directions:

"I bring to the table the reins of three horses, three bureaucratic horses that are often charging off in different directions." Babbitt's steeds were the Bureau of Reclamation, which is supposed to build the dams and reservoirs; the U.S. Fish and Wildlife Service, which is supposed to enforce the Endangered Species Act; and the Bureau of Indian Affairs, which is supposed to get water for the Indians.

Even so, Babbitt expressed optimism. He said getting stakeholders together worked years ago for the Central Arizona Project, it worked at Colorado's 1994 grazing roundtable (HCN, 4/4/94), and it resolved California's 30-year water war in the recent Bay-Delta Accords.

He didn't mention the most relevant example of all: Denver's proposed Two Forks Dam, which would have cost $1 billion, drowned a major fishery, and diverted water from western Colorado. In the early 1980s, then Gov. Richard Lamm convened a similar roundtable. Some environmentalists boycotted the roundtable so that they could continue to fight the project. Others came to the table, admitted that Denver had water needs, and looked for ways to meet the needs without a dam. In the end, President George Bush decided that Denver's needs could be met without building Two Forks, and he vetoed the project.

There's a parallel in this Arvada room. The environmental critics of the project sitting at the table agree that the Utes should have 60,000 acre-feet per year. But they don't like the way the Utes' need is to be met. The Sierra Club's Maggie Fox told the group, "Our opposition is to the Animas-La Plata project as it is currently configured, not to the action of resolving legitimate obligations and needs of the two tribes ... in ways that are environmentally benign and fiscally sound, as well as economically reasonable."

Fox, attorney Lori Potter and Southern Ute councilman Ray Frost represented an array of groups - the National Wildlife Federation, Trout Unlimited, U.S. Public Interest Research Group, Western Colorado Congress, Taxpayers for the Animas River and Frost's Southern Ute Grassroots Organization.

Potter said, "We don't start from the assumption that anything has to be built, although we are willing to discuss construction."

Frost, who has been a Southern Ute council member for three years, said, "Today, I bring to the table alternatives that we have discussed among us and that we believe would be in the best interests of the tribal membership." They include the kinds of ideas that ultimately sank Two Forks: the use of aquifers to store water underground, the expansion of existing reservoirs, conservation, and exchange of water with other users.

The weight of history

By the time the half-hour opening statements by each team were complete, Romer and Babbitt had left and Lt. Gov. Schoettler had taken over as facilitator. A tall woman with short, gray hair, she ran the meeting with a style that combined football referee, New Age psychologist and impatient schoolteacher. She needed all those attributes as the meeting dragged on. An especially mind-numbing point came when the attorney for the Navajo tribe spoke:

"The Navajo Nation is the largest water user in the San Juan River Basin," said Stanley Pollack. "It is also the largest claimant of water rights in the basin. Any particular project could impact our water rights."

The Navajos are in the same position as the Utes: Their water rights, also dating from 1868, have never been adjudicated. When New Mexico does finally rule on the 19th century claims, this biggest of all U.S. tribes could trump all non-Indian rights in the basin. The Navajos could do to the existing and future water uses what the Utes threatened to do.

Just as the Utes demanded, and got, recognition of their rights 10 years ago, now the Navajos and the environmentalists are at the table, using the laws that favor them to push their way into the process.

The negotiations, which appear to have been instigated by the A-LP proponents, are revolutionary in their recognition of the newest arrivals' right to be at the table. But there is no indication of how their claims will be met. The A-LP supporters have their agenda: They want to negotiate specific issues, such as water quality and endangered fish, in the hope that A-LP can mitigate its way to an early groundbreaking.

But the opponents want to go back to ground zero and study and discuss water demands in the area and non-dam alternatives like conservation and water storage in existing reservoirs to meet those demands.

Emotionally, the proponents are impatient - they've already waited a century, and they want to cut some deals and start turning dirt. Opponents have been at this for no more than a decade and they want to take the time to do a thorough job.

Delay may favor dam opponents

Although a deal may be hard to imagine this early in the process, it is easy to see that the political momentum is on the opponents' side. Last summer, Congress came close to defunding the project when the House of Representatives stripped A-LP of $10 million (HCN, 8/5/96). The money was restored after a plea by Sen. Campbell, but it didn't bode well for the many bigger requests the $710 million project will make of Congress.

In addition, the environmentalists came to Arvada with an "Indian blanket" of their own: Ray Frost heads the 200-member Ute group that opposes the project. Frost calls A-LP a "hoax" that would develop 60,000 acre-feet of Indian water, but never deliver it. In a recent letter to Congress, Frost wrote, "About 64 percent of the water supplied by the project goes to non-Indian users. More than 40 percent (of that) will go to irrigators at a subsidy of $5,000 an acre, allowing them to grow low-value crops with a value of only $300 an acre."

Frost has been a lone voice on the Southern Ute tribal council. But the council's dynamics may change now that its leader, Leonard Burch, has stepped down after 30 years, due to term limits adopted in 1990.

A recent tribal election, however, was inconclusive. A runoff election will be held in December between Clement Frost, an A-LP supporter who got 168 votes, and Orian Box, who got 87. Box has taken no position on A-LP, but the two incumbent council members who were re-elected continue to support A-LP.

Meanwhile, enthusiasm in the Anglo world seems to be softening. The Durango Herald, a conscientious, locally owned daily, bucked local tradition this summer in two editorials that took a stand against the full project.

"It's time for a reality check," the paper wrote, and called for a scaled-down version - -an A-LP Lite' - and for a cooperative approach. The editorials were a crack in what had been a united establishment.

If events have turned against the project's backers, why shouldn't the environmentalists just keep up the pressure in the courts until A-LP is dead? A glance at the negotiating table in Arvada gives the answer: Sitting with Fox of the Sierra Club and attorney Lori Potter is Ray Frost, the Southern Ute who expects his allies to help him get water to his tribe.

The process continues

At the moment, the process has gotten past its first major obstacle: All sides agreed to put lawsuits and regulatory deadlines on hold until Jan. 12, 1997.

With that done, the teams held a second meeting, this time in Denver in late October, to discuss how to proceed. How can they come up with criteria that any A-LP solution must meet? How will the group analyze the structural (dams and canals and pumps) and non-structural (conservation, water exchanges) options? Will the group make decisions by majority or by consensus?

Then there is funding. How can the opponents afford to participate? Just by being in the room, discussing alternatives, the environmentalists risk alienating their constituencies. Should they also draw down their treasuries? Despite outrage from pro-A-LP interests, funds are beginning to appear. Doug Young of Gov. Romer's office says that the EPA and the Department of Interior have agreed to donate $10,000 each to a Colorado state fund that any of the teams can apply to. And Ray Frost's Southern Ute Grassroots Organization has been granted $30,000 by the Catholic Campaign for Human Development.

The next meeting of the negotiating group will be held Dec. 3 in Farmington, NM. It is open to the public. For further information, call Young at 303/866-2155 or e-mail him at young@capitol.state.co.us.

Freelance writer and radio journalist Becky Rumsey of Durango, Colo., helped research and write this report. Ed Marston is publisher of High Country News.

The following sidebar articles accompany this feature story:

- The rules - Lt. Gov. Gail Schoettler offers ground rules for reaching consensus on A-LP.

- Meanwhile, on the street - In Durango, Colo., passions about A-LP still run high - with former Mayor Jeff Morrissey cited by police for harassing two anti-A-LP women.

- What $710 million buys

- Stella Montoya, La Plata Conservancy District

- Ray Frost, Southern Ute councilman

- Maggie Fox, Sierra Club

- Dear reader - Information on how to obtain further A-LP information.