Navajos: Halt water use until rights met

Larry Di Giovanni
Staff Writer

WINDOW ROCK — The Navajo Nation has dived in to test the waters of its Colorado River rights by seeking federal intervention that would prevent the Lower Basin states of California, Arizona and Nevada from receiving any more surplus water until the tribe's mainstream rights are spelled out in fine detail.

On Friday, acting tribal Attorney General Louis Denetsosie, water rights counsel Stanley Pollack and contract lawyer Scott McElroy filed an injunction in U.S. District Court for the District of Arizona. The complaint, against the Interior Department and federal Bureau of Reclamation, demands that Interior Secretary Gale Norton stop appropriating any more undeclared mainstream Colorado River water until Navajo Nation water rights below Lee's Ferry are quantified.

The Navajo Nation's attorneys are charging that Norton has violated her fiduciary duty to represent the tribe's water interests by engaging in such actions as allowing the three Lower Basin states to continue storing vast amounts of Colorado mainstream water without considering the tribe's unmet needs.

The action is an injunction, not a Navajo Nation water rights claim. However, Denetsosie told the Independent earlier this week during a tribal Water Rights Commission meeting in Pinon that the pending action would likely be a precursor to the Navajo Nation filing one or more claims.

Navajo President Joe Shirley Jr. called the tribe's landmark federal court filing "in the best interests of the Navajo Nation and serving the rights of all of our people." The states of California, Arizona and Nevada, with the aid of the Interior Secretary, have thus far determined the fate of the Colorado River by usage without involving the Navajo Nation at all, Shirley said through his press officer, Deana Jackson. The tribe's injunction will ensure that the Interior Secretary must work with the nation's largest tribe to "recognize and protect Navajo interests in this all important process," Shirley commented.

During a recent trip to Washington, Shirley accompanied by Pollack informed Norton in person of the tribe's pending action in U.S. District Court in Arizona. Other parties who have been informed are Arizona's pair of Republican senators, Jon Kyl and John McCain, Jackson said.

The Interior Secretary has dual roles as the tribe's trustee and as Water Master for the Colorado River, Denetsosie said. As Water Master, the Interior Secretary is authorized to enter into permanent water delivery contracts with Lower Basin water users pursuant to the Boulder Canyon Project Act. The tribe's argument is that such contracts have been balanced on the Navajo Nation's back and at its expense where no Navajo access to Lower Basin water is concerned.

The Upper and Lower Colorado River basins provide water to seven states and several tribes, a total of about 15 million acre-feet of water per year. The amount of Colorado River water that the Navajo Nation gets: zippo, zilch. By contrast, the state of Arizona alone has Colorado River rights to 2.8 million acre-feet yearly stored in Lake Mead.

An acre-foot, or 326,000 gallons, is enough water to supply a water-needy urban family of four or five people for a year.

One action the Navajo injunction demands, as explained by Water Rights Commission Chairman Albert Hale, is that the Interior Secretary undergo the task to quantify Navajo water rights and do so fairly. Hale uses a "water scoop from the bucket" analogy to describe the Water Master's responsibility. The Interior Secretary has scooped out just about every Colorado River contractors' required amount of water, Hale said while leaving the Navajos' scoop out of the room.

For a tribe with a land base nearly the size of West Virginia a reservation with 180,000 people encompassing 27 million square miles and on which the Diné are forced to subsist on just 12,000 acre-feet of domestic water each year piecing out the Navajos from the Southwest's water puzzle will no longer be tolerated, Navajo leaders are stating.

The Navajos' injunction states: that the Navajo Nation has been kept away from the Central Arizona Project, a water system that supplies Arizona's eastern water users with mainstream water; that the tribe is being kept out of interstate water banking regulations that allow for offstream storage water, including the tribe's exclusion from a proposed Storage and Interstate Release Agreement; that the Navajo Nation's unmet beneficial uses of Colorado River water were excluded from the landmark Arizona v. California decision decided in the 1960s; and that in January 2001, former Interior Secretary Bruce Babbitt issued a decision that excluded the Navajo Nation from any consideration when the Interior Secretary declares the availability of surplus water.