Navajo Sue U.S. to Protect Colorado River Rights

In a case that bristles with far-reaching implications, the Navajo Nation has sued the federal government in an effort to obtain recognition of tribal claims to Colorado River water. A consideration of such rights could result in a rethinking of current state and federal water management policies and practices.
The suit, which is not about identifying a specific amount of water, is, at the same time, a step in that direction. Navajo tribal attorney Stanley Pollack describes what ultimately is at stake: "The tribe has unquantified, unrecognized main stem Colorado River water rights that we want recognized. We want the rights to be quantified, and we want an entitlement."

The suit argues that the U.S. Interior Department is not justified in allocating uncommitted Colorado River water since it has failed to take into account unquantified Navajo water rights. The suit requests that the court enjoin the department from allocating any unallocated water from the Colorado River until Navajo rights are quantified to meet the needs of the Navajo Nation and its members.

The Navajo Tribe seeks recognition for its Colorado River water rights. (Photo: Shannon Kelly)

Pollack says, "The premise of the case is that every decision the Secretary makes respecting the management of the river assumes the nonexistence of a Navajo right. Each time the Secretary takes an action with respect to the management of the Colorado River without evaluating the impact on the tribe's unquantified water rights, she is more or less institutionalizing the reliance on unquantified Navajo water by all of the other water users."

The suit questions some water management decisions guiding Colorado River water use. For example, the suit claims the Interim Surplus Guidelines adopted to determine conditions under which the Secretary would declare the availability of surplus water for use within the states of California, Arizona and Nevada did not take into account potential Navajo water rights or needs. Although currently suspended, the Interim Surplus Guidelines are critical to working out an agreement with California to limit its use of Colorado River water.
The suit also claims that the unquantified rights of the Navajo Nation were not considered when the Secretary created an interstate water banking program to enable Arizona and Nevada to bank their Colorado River entitlements.

The suit also claims that the Navajo were left out when the Secretary contracted Central Arizona Project water to Arizona Tribes. Thus far, the Secretary has contracted with 11 tribes for a water delivery obligation of 388,906 acre-feet, an amount charged against Arizona's total Colorado River entitlement of 2.8 million acre-feet. The complaint states, "Quantification of the Navajo Nation's rights to the waters of the Lower Basin of the Colorado River could result in a determination that the Navajo Nation's rights are superior to those subject to the contracts with the Secretary, and thereby threatens the ability of the Secretary to deliver Central Arizona Project water to the tribal and non-Indian contractors."

An injunction against the Secretary allocating CAP water could threaten the Gila River Indian Community Settlement and the Arizona Water Settlement Agreement. The latter establishes federal and nonfederal costs and water allocations of the CAP system.

Pollack says resolving tribal claims on the main stem of the Colorado River will help settle Navajo rights on the Little Colorado River. He explains: "The state has said it wouldn't support a Little Colorado River settlement without resolving the big Colorado River issues. Resolving those issues would remove that impediment." The Navajo Nation is a party in the Little Colorado River adjudication along with the Hopis, San Juan Paiutes and Zunis. Negotiations have been stalled since the summer of 1999 as a result of a lawsuit filed by the Navajo Nation against Peabody Western Coal Company, the Salt River Project and Southern California Edison. That lawsuit concerns issues arising out of the 1987 amendments to the Peabody leases.
In response to the suit, Arizona Department of Water Resources Director Herb Guenther says, "I feel it is too bad we resort to these types of litigation. But I understand the Navajo point of view as well. They feel they are running out of time to exercise their claims to the mainstem water rights of the Colorado River. The question is how active are they going to pursue this litigation. Or is it mostly intended to attract attention to the issue?

"We are waiting to see where this is going. The first thing is how the Secretary responds to the suit, whether the federal government will vigorously oppose it and litigate or whether they will decide to sit down and talk about the issues. With the two parties at the table a vigorous effort can be made to resolve or adjudicate Navajo water rights to the Little Colorado and the mainstem of the Colorado River."

Guenther is concerned about the possible effect on Arizona's water policies. He says, "The suit mentions several state activities which are very crucial to our overall water management goals. ... If the suit is actively pursued we will have to consider what alternatives we have to protect Arizona's interest.

In its suit against Interior, the tribe is counting on the court not relying on the practicable irrigable acreage (PIA) standard to quantify its water rights. The PIA standard is based on a reservation's irrigation potential, and claims to the main stem of the Colorado River based on irrigation are problematic. Although the Colorado River forms the western boundary of the Navajo Reservation, access to the river in the Grand Canyon, several thousand feet below the arable lands of the Navajo Reservation, would be difficult, particularly for irrigation purposes.

In this regard, the tribe may benefit from an Arizona Supreme Courts decision that Indian water rights quantification can be based on other criteria than the PIA standard. The court stated that water rights allocations must respond to each reservation's specific needs.

Pollack says, "I don't think they (Navajo claims) have been taken seriously in the past because people have not focused on water rights based on anything other than PIA. The Arizona Supreme Courts decision recognizes we need water for a permanent home land. If the Navajos are going to exist along the banks of the Colorado River, they are going to need future drinking water supplies from the river."

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