The U.S. government filed an amicus brief in early April backing Utah rancher Gregory D. McKee in a lawsuit brought by the Ute Indian Tribe of the Uintah and Ouray Reservation in northeastern Utah. The Tribe accuses McKee and his companies of illegally diverting Tribal waters, trespassing on Tribal lands and causing environmental contamination.
Background
The dispute centers on water rights associated with the Uintah Indian Irrigation Project (UIIP), a federally constructed system established in the early 1900s to deliver water to Ute lands. Over time, land ownership shifted, and federal law allowed some water rights to be transferred under legislation signed in 1941—otherwise known as the 1941 Act—which permitted the secretary of the Interior to transfer water rights between lands within the project, with the consent of the involved landowners.
The Tribe alleges that McKee has unlawfully diverted Tribal water from the UIIP to irrigate approximately 120 acres of land. The Tribe claims that two tracts—about 80 acres—are being irrigated based on a state water right that does not authorize diversion from UIIP infrastructure. For a third 40-acre tract, McKee relies on two water transfer agreements from 1943 and 1946, which the Tribe argues are invalid and constitute illegal transfers of Indian trust property.
The agreements at issue were executed by the U.S. and McKee’s predecessor, Dewey McConkie, and transferred water rights from less productive lands to more arable ones, without altering the volume of water or its ownership.
The Bureau of Indian Affairs, after reviewing objections raised by the Tribe as early as 2015, affirmed that the agreements were valid under the 1941 Act, which authorizes water transfers within the UIIP with the consent of the interested landowners, not the Tribe. The Tribe does not claim ownership of the lands or water rights involved in the transfers, the bureau said, and federal law supports the continuation of UIIP water delivery to non-Indian successors of allotted lands. The U.S. government maintains that the Tribe’s consent was not required and that the transfers lawfully support both Indian and non-Indian landholders within the project.
In 2018, the Tribe filed two suits—one in the U.S. District Court for the District of Columbia and another in the U.S. Court of Federal Claims—alleging that the federal government had unlawfully approved water transfers under the 1941 Act without obtaining Tribal consent, thereby breaching its trust responsibilities.
The Tribe sought a full accounting of all such transfers. Federal courts dismissed most of these claims, including the breach-of-trust allegations, with one court ruling that the Tribe had failed to show the U.S. was obligated to consult the Tribe before approving water use by non-Indians. The remaining claims were transferred to the U.S. District Court for the District of Utah, where they were also dismissed. However, the Tribe has filed a motion for reconsideration, which is now pending.
In the parallel case before the U.S. Court of Federal Claims, the government similarly prevailed on most issues, but the court later ruled in part for the Tribe, allowing limited claims to move forward regarding federal management of water infrastructure. The Tribe filed a new complaint in late 2024, and the U.S. responded with a motion to dismiss, arguing the Tribe failed to identify any specific transfer that violated the law. That motion is currently under review, with a hearing scheduled for May.
Rule 19 arguments
In its brief to the court, the U.S. government argues that the lawsuit against McKee cannot proceed without its involvement because it has a direct interest in defending the decades-old water transfer agreements at issue. This stance, however, is based on the U.S.’ sovereign immunity, which prevents it from being joined as a party.
Under Rule 19(b) of the Federal Rules of Civil Procedure, if a required party cannot be joined and its interests would be harmed, the case must be dismissed. The U.S. argues that because the Tribe’s claims target federal agreements it cannot defend, and because the Tribe already sued the U.S. separately on similar grounds, the current lawsuit should be dismissed.
The brief cites a 10th Circuit case, Navajo Nation v. New Mexico, in which similar claims were dismissed because Tribes attempted to challenge historic federal decisions by suing private parties instead of the government.
The government has asked the court to dismiss the Ute Tribe’s claims related to the McKee water transfer agreements, arguing it is an indispensable party whose interests cannot be fairly represented in its absence. Because federal law prevents the government from being joined in the case, and because proceeding without it would undermine long-established federal agreements and responsibilities, the U.S. contends the court must dismiss those portions of the lawsuit. — Charles Wallace, WLJ contributing editor
