PIPE SPRING Cultures at a Crossroads: An Administrative History

Water Issues

Water issues once again emerged during the war years to challenge Park Service officials and lawyers. In early March 1942, Indian Service representatives Alma Pratt and Parven Church visited the monument to investigate the water situation. The men objected to a pipeline that carried water to the campground, hydrants, water trough, and residence directly from the springs without passing through the division weir. It was later determined by Franke why this was so. Apparently, while the CCC camp was at the monument, culinary water requirements had dictated that the Army take the water directly from the spring to eliminate the possibility of contamination. The Army had thus installed their own connection prior to the water entering the fort ponds. Some time after Camp DG-44 left Pipe Spring, Heaton connected up his main supply line to this same place. Heaton most likely did this for the same reasons as the Army, to have a clean source of water, thereby reducing the threat of typhoid in the family. It is unknown if this was authorized or sanctioned by Park Service officials. It certainly saved the Park Service from having to provide a chlorinating system for the Heatons' culinary water.

Heaton's arrangement meant that only the monument's open ditch irrigation system was being provided from pond water that passed through the division weir installed in 1934. Heaton was diverting all other water being used for Park Service needs prior to the division weir. [1269] If Heaton was aware this was a breach of the 1933 agreement, there is no indication of it in the records he left behind. The Indian Service's later discovery of this practice, however, reinforced their long-standing view that the extended Heaton family wasn't to be trusted when it came to water issues. [1270] It is hardly surprising then that the Indian Service officials were upset. The Indian Service had no intention of letting Heaton's modified system of water distribution and use of water at the monument go unchallenged. [1271]

As serious as the situation was, this was not the only concern the Indian Service had at the time, however. The Park Service and Indian Service agreement in October 1940 to construct a road through the southern part of the monument and the adjoining portion of the reservation (discussed in Part V) would impact the Tribe's pipeline from Pipe Spring, as well as the associated reservoir and gardens. As these were located at the monument's southeast corner, the road relocation would have required abandonment of that area. Indian Service officials were looking at the possibility of piping the Indians' share of Pipe Spring water through the stockmen's pipeline which, after all, the Tribe had paid for and installed. If this was done, they would then move their gardens to the location a mile south of the monument boundary where the stockmen's water had been piped since the summer of 1934. [1272] It is unknown whether or not the Indian Service also contemplated a change in their eight-year-old arrangement with the stockmen. Fortunately, since neither money nor labor were available during the war years to construct the road, the arrangement southeast of the monument remained the same for many more years.

In mid-March 1942, the Indian Service's Superintendent C. C. Wright (administrator over Indians in southern Utah) traveled to the reservation to continue the discussions begun by Pratt and Church. Wright asked Heaton what correspondence he had in his files on the subject of the water division. Heaton later wrote in his journal, "I am afraid they are going to attempt a change in the setup here at the Monument that the Park Service will oppose pretty strongly." [1273] Heaton began to read through all the old correspondence he had on the water issue. In late March, during an inspection visit to the monument, Franke directed Heaton to avoid bringing up the water question with Indian Service representatives (to "not open up old wounds") until more information on what they wanted was known. [1274] In early April Franke requested any data that Southwestern Monuments had on water issues; the "Water Problems" file was immediately sent to him.

A ruling during the summer of 1942 by Acting Solicitor W. H. Flanery led to the reopening of discussions concerning Pipe Spring water rights among Park Service officials. In February 1943 Hydraulic Engineer A. van V. Dunn wrote Attorney Albert L. Johnson (both Park Service, Water Rights Section, San Francisco) a memorandum that not only describes important aspects of the problem not previously referenced in other reviewed documents, but also provides an excellent summary of events surrounding the monument's water issue up to 1943. For these reasons, Dunn's memorandum is quoted in its entirety below.

This is to suggest that the water rights at Pipe Spring National Monument may need reconsideration.

We prepared to make a formal appropriation of these springs during 1937. By letter of March 12 of that year the Assistant Commissioner of Indian Affairs objected, or at least refused to concur in the Director's plan to authorize us to file a claim in Arizona.

The Indian Service was then in court to define its water rights in the Walker River Reservation, although the Commissioner did not so state, and the Park Service filing to include use for the Indians at Pipe Spring might have had disastrous effects. Since then, the Walker River case has been settled to the satisfaction of the Indian Service. However, I am not sure that the Walker River case gave the Indian Service any claim to rights at Pipe Spring, and I am quite certain that it did not provide any protection of the claims of the United States or the local stockmen.

On April 17, 1916, the area within one-fourth mile of the springs was proclaimed Public Water Reserve No. 34. The whole township was withdrawn on July 17, 1917, for the Kaibab Indians, and an adjusted interpretation of the water reserve was made by the Secretary on May 31, 1922. On March 3, 1920, Charles C. Heaton and the Pipe Spring [Land and] Live Stock Company filed application to locate Valentine scrip on the SE? SE? Sec. 17, which is the monument, and nominally also the water reserve since the springs are near the center thereof. This was rejected as being in conflict with the withdrawals, but a letter from the director to President [Heber J.] Grant of the Mormon Church, of Oct. 29, 1924, advises that the Secretary had just accepted a quitclaim deed from Mr. Heaton to cover the area. The area was proclaimed a national monument in 1923. By 1933 the local stockmen and Park Service were so dissatisfied with the meager amount of water they obtained after the Indian Service made its diversions that it became necessary for the Assistant Secretary to issue regulations to divide the water equally three ways. By decision approved June 15, 1942, Acting Solicitor W. H. Flanery ruled that water reserves were void when superseded by national parks or monuments. [1275]

All of this suggests that if past correspondence and proclamations are intended to show Park Service water rights protected, the protection was supposed to be under the water reserve. However, the ruling of June 15, 1942, seems to nullify the basis for earlier contentions.

The present Arizona water code took effect in 1919. Any use initiated by individuals before that date are vested. On this basis, the stockmen and Indian Service might have vested rights, but the Park Service does not unless by the quitclaim deed to the United States from Charles C. Heaton in 1924.

In past correspondence the point has been brought up that no appropriation might be needed if the natural stream flow did not leave the Park Service area. This seems to need interpretation. A spring does not have to be formally appropriated in Arizona if its flow does not leave the claimant's land. On this basis, it would not have to be appropriated even if it left the monument area if it did not further leave the Indian and other adjacent federal land.

If you look at this Arizona statute from the practical side it says you do not have to file on a spring to which others do not have access because those others cannot introduce conflicts without your consent by providing access. At Pipe Springs the private access has been provided by a pipeline, a tri-party agreement and regulations by the Assistant Secretary. The stockmen may have a perfected vested right now, and if not, there seems to be nothing to prevent them from perfecting one by filing and proof unless there are implied bans in the agreement and regulations. Since the regulations seem to be based on the existence of a water reserve, they may not have any standing at this time. In that case, the agreement is a division of the property of a fourth party, the State of Arizona.

I feel that we should file on one, two, or three thirds of the flow to get title from the State for ourselves, and for the stockmen and Indians if necessary. If we file on all, we can state in the claim that the United States does not waive any rights which may accrue from past reserves or vested rights. We can also specify that the filing is merely to strengthen the tri-party agreement. [1276]

At Dunn's request, Johnson transmitted the above memorandum to the regional office on March 4, 1943. Dunn was planning to be in Santa Fe on March 9 and wanted officials there to have time to think over the matter before his arrival. Johnson wrote to Regional Director Tillotson that the decision to abandon the Park Service's plan to file on the springs in 1937 had been explained by Associate Director Arthur B. Demaray in a letter of May 21, 1937. Johnson wrote,

Now Mr. Dunn sees a chance for revival on the theory of the opinion of Acting Solicitor Flanery of June 15, 1942, acknowledging the superiority of monument reservations to that of water reserves. [In] Mr. Dunn's memorandum you will note that he says 'the stockmen and Indian Service might have vested rights, but the Park Service does not...' I rather agree with Mr. Demaray in the last page of this memorandum of May 21, 1937, in stating his doubt whether the stockmen could acquire water rights and whether there was any vesting of water rights prior to the enactment of the [Arizona water] code. [1277] I feel that whatever rights are acquired by the Indian Service are acquired for the benefit of the United States, the same as when the Park Service makes an appropriation. [1278]

Johnson was willing to proceed with filing if Tillotson or the Park Service chief counsel thought doing so would offer better protection of the Park Service's rights. The regional office sent Dunn's letter to Franke at Zion, advising Johnson they would not take further action without his comments. In addition, Dunn personally discussed the matter with Franke in Salt Lake City. [1279] Franke then wrote the regional office on March 20, 1943, requesting that the Water Rights Section prepare and submit to him "a complete and clear >outline of the problem and its suggested solution." [1280] Franke intended then to take the matter up with local Indian Service officials to see if an agreement could be reached. "If Field agreements are reached by these Interior Department representatives, later difficulties may be avoided," Franke wrote. [1281] While on the surface this may have appeared to be a reasonable managerial approach to the problem, Franke's suggestion revealed his utter lack of familiarity with the complexity of water issues at Pipe Spring and the long-standing enmity between the Indian Service, the stockmen, the Heatons of Moccasin, and the national monument.

In response to Franke's request, A. van V. Dunn prepared a nine-page report that he submitted to Attorney Johnson in April 1943. Dunn's report, which he described as an "analysis of conditions," drew heavily on the 1933 Robert H. Rose report ("Report on Water Resources and Administrative Problems at the Pipe Spring National Monument") for information. [1282] As previous decisions concerning Pipe Spring water had been made at the highest levels in Washington, D.C., Dunn strongly advised against Franke saying anything to local Indian Service officials or to the stockmen about the possibility of the Park Service filing on Pipe Spring water. A summary of Dunn's analysis follows, accompanied by pertinent excerpts. [1283]

It seemed to Dunn that water had been used "fairly continuously" on the monument area since about 1863 while Arizona was still a territory. Any water rights established between 1863 and February 14, 1912 (when Arizona became a state), were in accordance with the territorial water code. Dunn wasn't certain, but thought this code "probably recognized rights based on physical diversion and use without requirements for filing." [1284] A system of county filings had been used in Arizona between 1912 and 1919. "So far as I know, no one had investigated the county records," wrote Dunn, recommending that this be done. [1285] It was unclear to Dunn that Pipe Spring was included in the October 16, 1907, withdrawal of the township for use by the Kaibab Paiute. [1286]

If the monument was part of the Indian Reservation the case of Winters et al vs. United States (207 U.S. 564) could easily apply.... It is particularly interesting to note that the Fort Belknap Reservation... was established while Montana was a territory just as the Kaibab Reservation was established while Arizona was in the same status.

If we acknowledge that the Indians acquired a right to waters on their reservation we do not know yet whether the monument was part of this initial reservation or whether the Indians actually used water from Pipe Springs at that time...

...all land within one quarter mile of Pipe Springs was withdrawn as Public Water Reserve No. 34 on April 17, 1916 and [readjusted] on May 31, 1922. This was after Arizona became a State but before it adopted its present water code.

If we accept the Solicitor's opinion of June 15, 1942, to the effect that establishment of national monuments cancels water reserves we can also probably assume that no water reserve would have been necessary in 1916 if the area was already on Indian Reservation — unless the water reserve was established to limit Indian use in the interest of the white public. At all events, using the Solicitor's opinion of June 15, 1942, would not the withdrawal of 1916 cancel any portion of the Indian Reservation within one-quarter mile of Pipe Springs? [1287]

In Dunn's view, the July 17, 1917, withdrawal seemed to cancel out the water reserve, yet the water reserve had been adjusted on May 31, 1922, to cover the area of Pipe Spring (soon to become Pipe Spring National Monument). The fact that the Secretary of the Interior had made the adjustment, however, might be meaningless as it took an executive order of the president of the United States to establish a water reserve. The application filed by Charles C. Heaton and the Pipe Springs Land & Live Stock Company was rejected on April 15, 1920, stated Dunn, "as conflicting with the water withdrawal. Note that this was between the creation of the Indian Reservation in 1917 and the interpretation of the water withdrawal of 1922." [1288] The area of Pipe Spring National Monument comprised the east half of the amended water withdrawal of 1922. Its establishment on May 31, 1923, seemed - in Dunn's view - to nullify "any water withdrawal or Indian Reservation covering the same area." [1289]

A few important pieces of information are missing from Dunn's account of the history to this point. Charles C. Heaton had appealed the rejection of his application and was denied again on June 6, 1921. As mentioned in Part II of this report, the second rejection came on the same date that Director Stephen T. Mather wrote Office of Indian Affairs Commissioner Charles H. Burke about his interest in making the site a national monument. Then Heaton filed a motion for a rehearing of his land case. It was during this waiting period that the monument was established. (None of the preceding information was in Dunn's report.) When Heaton executed the quitclaim deed to the Pipe Spring property on April 28, 1924, he withdrew his application. "Regardless of past claims," Dunn maintained, the United States government seemed to have clear title to the monument area under the supervision of the Park Service. He continued: "....any water rights existing when the present water code was adopted in 1919 were probably manifest only in use under territorial code. I wonder if the Arizona code of 1919 was subject to vested rights. I think the matter needs further investigation." [1290]

It was Dunn's opinion that the tri-party agreement made on June 24, 1924, for the equal division of water between the stockmen, Indian Service, and Park Service was confirmed on November 2, 1933, by the Assistant Secretary Oscar Chapman's signing of the "Regulations for the Division of the Waters of Pipe Spring." [1291] Dunn was concerned about the fact that Heaton was allowing some local people access to water at Pipe Spring who were not among the stockmen who signed the 1924 agreement. "There seems to be a potential danger of private appropriation if any of the local people have access to the water," he warned. [1292] A right might be established even if only intermittent access was open to local people.

In addition, the question of whether or not the spring flow ever left the monument or the reservation was a critical one. Water had been impounded and used at Pipe Spring for so long, Dunn noted, that "No one can now state how far the water would flow under natural conditions, but it is quite possible that it would reach Section 32 at times. If so, the ponds and other local use can be protested unless they are covered by a territorial right or by prescription. I think both may exist." [1293] Also, because the stockmen had been piping water off the reservation since 1934, Dunn thought that, under the 1939 water code, the stockmen might perfect a water right to cover their beneficial use, citing two sections of the code to make his case. [1294]

Under the 1939 water code, Dunn argued that a person might perfect a water right on the public domain superior to those perfected by a later entry-man, that he might evoke the right of eminent domain (except against the United States) to perfect a right, and the only way to lose it was by five years of non-use. "I wonder if we cannot also state that any use continuing since prior to 1907, 1916, or 1917, is vested and superior to Indian or water reserve claims," he added. If all this was true, cautioned Dunn, then the United States needed to either perfect or protect all its potential rights to the springs. Toward this end, Dunn prepared estimates of water demand by each of the three parties - Park Service, Indian Service, and stockmen. He based his estimates on the output of both tunnel spring and the main spring (what Robert H. Rose identified as two springs, "big spring" and "main spring," but which were in fact one). His calculations showed slight deficits for the Park Service and stockmen, and a considerable surplus for the Indian Service. [1295] According to Dunn's estimates, the Indians had a surplus that exceeded their demands by 25 percent. "Clearly, the Indian Reservation has not made use of more than 65 percent of its one-third of the spring flow since the pipe was installed, unless it hauled water or brought its stock onto the monument," wrote Dunn. [1296] His documentation indicated that Pipe Spring water supplied was then supplying the needs of three Indian families, 100 head of Indian-owned livestock, and a 3.11-acre irrigated garden. The stockmen's demands comprised 13 families and 1,582 head of livestock. The monument's demands included water for the custodian's family, tourists (based on an average year of 3,000), maintenance crew and rangers, 10 families west of the monument, livestock, and the irrigation of 4.39 acres of monument land. [1297]

Dunn raised four questions whose answers would bear on the water issue: 1) Do the Indians have the valid right to more water than they now use when they care to divert it? 2) Is the Indian population likely to increase to justify more demand? 3) Would their potential increase in living standards and occupation require more or less water? and 4) Since the Office of Indian Affairs built the pipeline for the stockmen, does the pipeline establish a right-of-way across the monument and reservation land for perpetual access by the stockmen? Dunn argued that if the Park Service could use the Indians' (and possibly the stockmen's) "surplus" water (by his calculations), then additional monument acreage could be irrigated. Instead of the 4.39 acres then being irrigated, somewhere between 6.25 and 8 acres could be watered, he estimated. [1298] The "surplus," as Dunn interpreted water law, was unappropriated and therefore subject to appropriation. [1299]

Dunn recommended that someone research what the water codes were prior to 1919 and the status of the codes after the Arizona water code of 1919 went into effect. "We should also find out how the quantity of water in these early rights is now determined." [1300] Dunn doubted that the full spring flow was used prior to 1919 on the monument area and Indian Reservation. [1301] If this was the case, then some may have been unappropriated and thus would be subject to appropriation "at the present time." While there was no reason the stockmen couldn't file their own application for water rights, stated Dunn, "this might result in complicated joint interest in pipeline and right-of-way across the federal land. It would seem better for the United States to perfect such rights as are necessary, including those to deliver such water to Section 32 as may be required by present or future agreements." [1302]

Dunn could see no reason why the Indian Service and Park Service couldn't arrange proper agreements for full use of the water not needed by the stockmen "and keep State claims as a unit." The tri-party agreement of 1924 had "much the status of a decree," wrote Dunn. However, he wrote,

The meeting at which it was signed was an informal adjudication. We might be able to have it recognized by the State without the use of normal application, permit and license, but it is weak for such recording because it does not show that all potential claimants are parties, and it might fix allocations to the three parties enough to complicate future amendments. [1303]

Dunn had been the author of the application drafted in 1937 then set aside by the director. Having noted the Office of Indian Affairs' objections made at the time, he offered several new paragraphs that he felt would address their concerns. He recommended that any final draft of the application should be worked out between Indian Service and Park Service engineers with more complete data.

A week later, in a letter to Regional Director Tillotson, Attorney Johnson seconded Dunn's view that Franke should say nothing to Indian Service representatives until the matter had been placed again before the Park Service director. Johnson had a few points of his own to add to Dunn's analysis of the Pipe Spring water situation. Arizona's constitution of 1910, contained two relevant provisions, he wrote. They were Article 17, Section 1: "The common-law doctrine of riparian water-rights shall not obtain or be of any force or effect in the State;" and Section 2: "All existing rights to the use of any of the waters in the State for all useful or beneficial purposes are hereby recognized and confirmed." [1304] He also referenced the case of Boquillas Co. v. Curtis. [1305] With regard to some of the queries raised by Dunn, Johnson opined that he did not believe the Indian Reservation was affected by the water reserve withdrawal of 1916. With regard to a territorial code, he knew of none, only of general statutes until the time of enactment of the State's 1919 water code. Any change in the June 9, 1924, tri-party agreement, Johnson wrote, would have to be taken up again with the Office of the Secretary of the Interior, as would any change to the 1933 agreement. Johnson concluded,

The [appropriative] procedure seems to be one that should be settled by the Chief Counsel of the National Park Service and the Chief Counsel of the Office of Indian Affairs, particularly considering possible amendments of the interbureau agreement to conform more specifically with actual conditions and to determine the matter of making an appropriation. We suggest, therefore, that in transmitting copies of this report to the Director you include an extra one, which he may present to the Commissioner of Indian Affairs. The other copies are for distribution to the Coordinating Superintendent and the Acting Custodian if you see fit. As a word of caution, however, note that the Acting Custodian is apparently a relative of the Heatons in the local stockmen's association and may, in fact, have a partial interest in the association...

I suggest that the entire matter be referred to the Director and the Chief Counsel for declaration of policy. [1306]

On May 22, 1943, the director's office put the matter of a federal filing on Pipe Spring waters once again to rest. The tri-party agreement was meeting the monuments needs, Assistant Director Tolson wrote in a memorandum to Tillotson, and the other two parties appeared satisfied with the arrangement.

While Mr. Dunn has suggested there is a potential danger of appropriation by private interests, no evidence has been submitted indicating that any such action is imminent.

In the circumstances, we consider it inadvisable to initiate any action affecting the present arrangement. [1307]

Park Service officials apparently felt safest letting sleeping dogs lie. For the moment, so did everyone else.

The Indian Service, however, was always on guard for any possible action taken by the Park Service that would impact water use on the monument. They knew Park Service officials wanted to revive the monument's development program as soon as possible after the war's end. Indian Service representatives believed that some of the original pre-war proposals could potentially impact the Tribe's water supply. In October 1945 Heaton got a phone call from Parven Church and another Indian Service official. The two men had been going over old Park Service proposals dating back to the CCC era and asked Heaton about the water tank that had been proposed at one time to go on the hill above the fort. Such a development would require a renegotiation of the water agreement, they intimated to the monument's custodian. Heaton told them that those were early plans, which had been abandoned as far as he knew. Nothing had taken place in developing a water system that required a change in the agreement, he told them. [1308] This was quite true. While the monument had finally gotten a sewer system (thanks to the initial efforts of CCC crews and later Leonard Heaton), its water system had yet to be developed. As things turned out, the Indian Service had little reason to fear that development would immediately impact water use at the monument, for none took place there for more than another decade.