PIPE SPRING Cultures at a Crossroads: An Administrative History

To File or Not to File?

78. Custodian C. Leonard Heaton in front of his fort office, ca. 1935 (Pipe Spring National Monument).

While no documentation suggests any dispute during 1936 over the tri-partite division of water at Pipe Spring, in December 1936 Attorney Joseph E. Taylor, Branch of Land Acquisition and Regulations, informed Director Cammerer that Superintendent Pinkley desired "a different adjustment" in the division of water. [959] Toward that end Pinkley had requested a filing be made on behalf of the United States, through the National Park Service, "upon all the waters of the Springs, or at least upon the waters used by the National Park Service." [960] Taylor asked the director for authorization to precede with the filing. It is not known what, if any, event precipitated Pinkley's action. It may have been simply that Pinkley had always resisted the three-way division as unfair to Park Service interests, and had wanted the legal question of ownership formally determined. A review of all correspondence related to the proposed filing suggests that Pinkley may have wanted the filing to be a vehicle for demonstrating Park Service need for Pipe Spring water, based on administrative needs and rising visitor demand. Such a move would have forced the Office of Indian Affairs to demonstrate the reservation's need and use of the share of water it was receiving. While the Park Service could have easily made a case that it needed more than its one-third, Pinkley was convinced that the Indian Service could neither demonstrate a need for one-third of the water, nor show they made efficient use of what they were receiving. If this was Pinkley's goal, however, it was not reflected in statements made by the director's office, as will be seen below.

When Pinkley wrote Heaton to gather information needed for the filing, he stated, "The Service is working on an appropriation of water rights to protect our water supply for all time to come at Pipe Spring." [961] In addition to water use information, Pinkley asked Leonard to obtain a copy of the quitclaim deed from his father, Charles C. Heaton. [962] Leonard Heaton responded in late May 1937, describing how water from the Indians' pond was being used. "The Indian Service, or Albert Frank, an Indian, has tried for the past several years to do some irrigation and raise some crops but has been unable to get enough crop returns to pay for the seed and work put into the ground," wrote Heaton. [963] Heaton also reported that during the drought of 1936 when the reservation springs dried up, 75 to 100 head of Indian stock watered at the Indian pond for three or four months, but none were watering there in May 1937. Heaton provided other specific information on water use by the Park Service, general public, and local residents. When it came to stockmen, however, he provided only the most general information. Suspicious of government intent, the stockmen refused to tell Heaton the number of cattle dependent on water from the monument. They told Heaton the government could write them individually for that information. [964] "They are rather sore at the way the government has treated them," explained Heaton. [965] Heaton wanted to know if the rights of the cattlemen to Pipe Spring water were being questioned again, and if so, by whom?

Superintendent Pinkley forwarded Heaton's letter to Attorney Taylor who urged Pinkley to assure the cattlemen that no attempt was being made to take away their water or divest them of any right which they might have to Pipe Spring water. "Insofar as the three-party agreement concerning the use of waters of Pipe Springs is concerned," wrote Taylor, "the only dissatisfaction of which I am aware lies in the distribution of the water between the Park Service and the Indian Service." [966]

To go back to Pinkley's original request that Taylor file on behalf of the government, Assistant Director George A. Moskey acknowledged receipt of Taylor's letter in late January 1937, replying,

The question whether we should file upon all the waters of the springs is being considered, and will be the subject of a separate communication in the near future. There is nothing in our files to indicate that any filing has been made on behalf of the United States. It is understood from Mr. Dunn's report that none has been made by private interests. [967]

Moskey forwarded to Taylor copies of the regulations issued November 2, 1933; the October 13, 1933, agreement between the Park Service and Office of Indian Affairs; and a copy of the Memorandum of Agreement signed June 9, 1924, by representatives of the Park Service, Office of Indian Affairs, and cattlemen. The legal division of the Branch of Land Acquisition and Regulations also wrote to the state water commissioner to inquire if any water filing had been made on the Pipe Spring property and was informed that a search of their records indicated no filing had ever been made. [968]

On February 11, 1937, Director Cammerer prepared a letter for Joseph E. Taylor informing him,

You are authorized and instructed to make the necessary filing on behalf of the United States for all the waters of the springs. When the right to the water is vested in the United States by appropriation, its future disposition will remain subject to the regulations of the Secretary. No change in the present disposition is now contemplated. [969]

The letter was forwarded for concurrence signature to the Office of Indian Affairs, immediately raising the suspicions of that office. Assistant Commissioner William Zimmerman, Jr., replied to Cammerer on March 12, 1937,

Before agreeing to the proposed letter to Mr. Taylor, we would like to know the purpose of such filing and also have the opportunity of examining and approving the form of the application to be filed with the State Water Commissioner of Arizona. As you no doubt are aware, the Department of the Interior withdrew from settlement an area including the springs in 1907, which was conformed and established as an Indian Reservation by executive order of July 17, 1917. At that time there were reserved by implication sufficient waters of the reservation for the use of the Indians. See Winters v. United States (207 U.S., 564). Therefore there appears to be no reason for the United States at this late date to file on the waters pursuant to the State laws. In view of this we have not concurred in the letter proposed by your office. There probably would be no harm in making a filing if the prior water rights were properly safeguarded. If, therefore, you still are desirous of having a filing made this Service would want an opportunity to examine all papers prepared for such purpose before any actual filing is made. [970]

Associate Director Arthur E. Demaray then forwarded Zimmerman's reply to Taylor with the following communiqué:

There is enclosed a copy of the reply of March 12 from the Assistant Commissioner of Indian Affairs, in which he refuses to concur in the proposed authorization to file for all the water of the springs. It appears that the Office of Indian Affairs prefers to depend upon rights vested under the ruling in Winters v. United States. The wisdom of such a course may be questioned, in view of the uncertainty of the ruling as affected by later decisions. Your opinion is requested whether it is advisable to file an application specifically reserving all rights which may have vested merely by reason of the establishment of the Indian Reservation.

The Office of Indian Affairs will probably not object to the filing of the application if such a reservation is made. If you consider it advisable to file the application for appropriation, you may prepare an application containing the reservations which the Office of Indian Affairs has indicated will be acceptable, and submit it to this Office. It will be transmitted to the office of Indian Affairs for approval before it is returned to you for filing.

It seems that if any rights are already vested in the United States under the ruling in Winters v. United States, such rights may include all the waters within the boundaries of the Kaibab Indian Reservation. Therefore, it seems useless to make any filing for less than the total flow of the springs. [971]

The possibility of filing raised a host of legal questions, some of which are contained in correspondence of April 1937 between Attorney Taylor, the director's office, and NPS Associate Engineer A. van V. Dunn. Taylor responded to the director,

It seems to me that if we attempt to file an application specifically reserving rights vested (if any) by reason of the establishment of the Indian Reservation, we thereby designate in our application an adverse claimant to be notified by the State Water Commissioner of our application, and possibly to be placed in the position of protestant. Inasmuch as our filing should be in the name of the United States of America, this would present an anomalous situation of having the applicant protesting against its own application...

Assuming, for the purpose of discussion, that there were private holdings such as to include the area around the springs, I can't see how the creation of an Indian Reservation farther down could affect rights acquired in the waters of the springs. The question of the reservation may be moot now because valid rights may never have been acquired, or they may have been forfeited long before this. But such a state of affairs would serve to illustrate the fact that the forfeiture would be accomplished under the laws of the State of Arizona, and the acquisition of new rights would have to be accomplished likewise under the State laws. If the Indian Reservation did not include the entire area, or at least an area providing access to the water supply, then, in my opinion, its creation could not amount to a reservation of the waters of the spring for use upon the Indian Reservation. The Indian Reservation would have to acquire its rights just as any one else would have to do it, and the decision of Winters vs. the United States would not be applicable under the facts.

On the other hand, if the Indian Reservation did actually include the entire area including the springs and the lands surrounding the springs, it is probable that the United States is the owner of the waters by either of two theories; one being reliance upon the doctrine established in Winters vs. the United States (though this position may not be entirely secure, since the reservation is not a treaty reservation and the area was withdrawn subsequent to the Desert Land Act of 1877), and the other being reliance upon the fact that under Arizona law the waters of a spring which do not flow in a well defined channel beyond the boundaries of the owner's property would not be subject to outside appropriation...

I would make the recommendation in the alternative — depending upon the facts applicable. If the ownership of land is such than no channel from which water might be appropriated extends beyond the lands of the United States, my suggestion would be that no filing is required. If, on the other hand, a channel does extend beyond the confines of Government land, then I would recommend a filing for all of the waters of the springs if we can possibly justify the use of the amount of flow, with a reservation in favor of such rights as are vested by virtue of the establishment of the Indian Reservation. [972]

Taylor included a specimen application to present to the Office of Indian Affairs "for their scrutiny" should Director Cammerer choose to proceed with filing. Meanwhile, A. van V. Dunn drew up a sample application at the request of Taylor, but raised a host of questions prior to doing so. [973] The draft "Application for a Permit to Appropriate Public Waters of the State of Arizona" was completed and submitted to Office of Indian Affairs Commissioner John Collier in late April, and was subsequently opposed by him. The Branch of Land Acquisition and Regulation, however, appears to have not given up at that point, contacting Pinkley in May for additional information. (See map that office prepared in April, figure 79.) The water of Pipe Spring did not flow off the monument through Indian lands in a defined channel and, to Pinkley's knowledge, never had. [974] The director's office made the decision not to file. In May 1937 Demaray informed Taylor,

In view of your recommendation that no filing be made if no channel from which water from the springs might be appropriated extends beyond the lands of the United States, it is considered inadvisable to file the application. Our sole object in making a filing is to prevent the vesting of any water rights in private parties which would be adverse to those of the United States. Since there appears to be no danger of the establishment of additional adverse rights, the existing complications render a filing inadvisable...

The application was not intended to affect the present distribution of the water among this Service, the Indians, and the cattlemen. [975]

The issue of Charles C. Heaton's earlier transfer of water rights at Pipe Spring to cattlemen arose. Demaray opined, "The reported sale to the cattlemen appears not to have been a transfer of any definite water right, but a mere continuance of a license to water stock for which Heaton received compensation." Whether the cattlemen's use of water at Pipe Spring could be viewed as adverse to the interests of the United States "may require consideration at some future time," Demaray wrote. [976]

In early June 1937, Taylor wrote to Pinkley stating that he fully concurred with the director's decision. There was no need to file an application to appropriate water, Taylor maintained, "unless it is found that runoff water from these springs might be subject to appropriation at a point beyond the reservation." [977] Thus ended, for a time at least, Pinkley's attempt to establish the National Park Service's legal rights to the waters of Pipe Spring.

79. Detail from "Water Systems Study" map, April 9, 1937
(Courtesy National Archives, Record Group 79)
(click on image for an enlargement in a new window - ~96K)