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."
For more information and details on this subject go to: http://ag.arizona.edu/AZWATER/awr/marapr03/feature2.html