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For years, Uinta Basin rancher Gregory McKee, who is a non-American Indian, has been drawing water from irrigation canals running across his property near his Tridell home for use in his feedlot and fields, even though Ute tribal leaders say this water is for tribal members.
A Ute tribal court agreed and ordered a stop to the diversions, but the tribe has hit a brick wall trying to get the order enforced. Various federal judges have concluded the tribal court overstepped its authority because the dispute involves someone who isn’t a tribe member and arose from activities on non-tribal land.
The tribe had petitioned the U.S. District Court in Salt Lake City to enforce the tribal court ruling. But Judge Howard Nielson held that the tribal court lacked jurisdiction.
On Wednesday, the 10th Circuit Court of Appeals affirmed Nielson’s ruling, thereby allowing McKee’s continued use of the disputed water over the strident objections of tribe officials who believe that more than just water is at stake.
The ruling doesn’t mean the McKee has lawful access to the water, but rather that tribal courts have limited authority over water disputes in which one party is not a member of the tribe. These courts could have jurisdiction if the disputed activities “directly affect the Tribe’s political integrity, economic security, or health or welfare,” which the Ute tribe argued is the case here.
As with so many disputes involving the Ute Tribe’s assertions of sovereignty on lands within the historic boundaries of its reservation, this case wound up before the Denver-based 10th Circuit, where it has won favorable rulings in several cases. But not this time.
Working against the tribe’s case was the long period McKee enjoyed virtually unregulated access to a canal, which he had been tapping for at least 13 years before the tribe learned of the diversions from McKee’s estranged wife in 2012.
“That such a large amount of time passed does not necessarily mean that Defendant’s use of the water was lawful or that [the Ute Tribe] cannot seek a remedy in an appropriate forum,” wrote Judge Joel Carson in the 10th Circuit ruling issued Wednesday. “But it means that the dispute does not sufficiently jeopardize tribal self-government to vest tribal courts with jurisdiction to adjudicate it.”
A former New Mexico federal magistrate, Carson was appointed to the 10th Circuit by then-President Donald Trump in 2018.
In its court filings, the tribe said the waters at issue were assigned to the Ute Indian Tribe when President Abraham Lincoln established the Uintah and Ouray Reservation in 1861. The rights are held in trust by the federal government for the benefit of tribal members.
The canals crossing McKee’s property near Lapoint are a conveyance for water developed by the Uintah Indian Irrigation Project, or UIIP, established more than a century ago to provide water to tribal lands, not fee lands held by non-Indians, according to the tribe. McKee had been using the water to support his various livestock operations, namely T & L Livestock, McKee Farms and GM Fertilizer.
The dispute arose a decade ago when tribal officials received a letter from Maggie McKee, who was then divorcing McKee and felt compelled to come forward with what she believed were “illegal, unethical and harmful” practices. The letter not only revealed the water diversions but also alleged McKee was growing crops on a 120-acre parcel of tribal land, spreading manure on the ground and burying the carcasses of 200 calves that died each year at the feedlot.
The letter prompted an investigation that led to the tribe’s suit getting filed in 2012 in Ute tribal court, where it was heard by Judge Terry Pechota.
According to the tribe’s filings, McKee’s 121-acre property was among the many parcels that were transferred out of Indian ownership soon after the Uintah and Ouray reservation was opened to non-Indian settlement in 1905. The parcel is within an area checkerboarded tribal and non-tribal land near Lapoint, with tribal lands abutting to the east and south, according to the tribe’s suit.
McKee’s family had been using the disputed water for three generations and that use was recognized by the Bureau of Indian Affairs as a valid right, McKee’s lawyers claimed.
After an initial hearing in 2013, Pechota issued a temporary injunction barring McKee from using the canals’ water and farming on tribal land.
But McKee continued diverting water, did not respond to the tribe’s subsequent court filings and did not participate in the bench trial Pechota held in July 2015, where he concluded the tribe “established clear and convincing evidence that [McKee] misappropriated tribal waters from Deep Creek Canal and Lateral No. 9 for application to the McKee Property since at least August 3, 1999.”
The water was delivered to McKee’s feedlot via a buried pipeline, while his fields were “flood irrigated” from a diversion at the upper end of the canal, positioned in such a way to conceal the amount of water being removed, the tribe’s filings allege. The tribe contends that over the decades the McKee land was always seemed green, while tribal members’ land served by the same canal struggled to get enough water.
McKee could not be reached for comment on Wednesday.
Court filings characterized the feedlot as a large operation where up to 10,000 head of cattle would pass through each year, with a capacity of 4,000 animals. The tribe’s expert witness calculated McKee drew 3,368 acre-feet of water between 1999 and 2014, resulting in an annual loss of $9,000 to McKee’s neighbors.
Pechota ordered McKee and his businesses to pay $143,000 in damages, and another $7,000 in attorney fees. His ruling also voided the agreements McKee has enabling him to farm a tribal member’s land. But most importantly, he ordered an end to the water diversions.
“Without permanent injunctive relief, the Tribe will suffer irreparable harm,” Pechota wrote. “The importance of water to the survival of the Ute Indians is beyond dispute.”
Now a decade after the tribe learned of McKee’s allegedly unauthorized diversions, that harm appears to be continuing with no end in sight.
