Diné farmers taking backseat to power plants

Larry Di Giovanni
Staff Writer

WINDOW ROCK — A Navajo Nation attorney and the delegate who chairs the Government Services Committee have raised legal issues that concern another committee's pending action to establish a precedent by leasing Navajo Indian Irrigation Project (NIIP) water to two Four Corners area power plants.

The Resources Committee is scheduled today to act on forbearance agreements that would lease up to 25,000 acre-feet of NIIP water to the Public Service Company of New Mexico's San Juan Generating Station and Arizona Public Service's Four Corners Power Plant, both located near Farmington.

The water, used under normal conditions to irrigate Navajo Agricultural Products Industry crops, is proposed for power plant use in the event that the federal Bureau of Reclamation declares a water availability shortage out of Navajo Dam for the growing season that starts in early April.

In a related matter, the tribe's Inter-governmental Relations Committee will also meet today to discuss a "shared shortage recommendations" plan that BurRec is waiting to consider before it sends out letters possibly this week spelling out the reservoir's available water to dam contractors including NIIP and the city of Farmington. Consideration of the forbearance agreements is crucial before the BurRec acts on the shortage recommendations, crafted by the tribe's Water Management Branch.

A possible crimp in the Resources Committee's plans to approve the forbearance agreements has surfaced through a legal opinion issued by tribal Office of Legislative Counsel attorney Frank Seanez. Seanez wrote that the agreements to lease NIIP water to the power plants do not offer an approval position from the NAPI Board of Directors and do not include consideration from the Navajo Nation Water Rights Commission.

Seanez's memorandum, handed to Resources members during their regular meeting Thursday, also questioned the impact that leasing NIIP water will have on overall Navajo water rights claims. The attorney also asked whether any consideration concerning the agreements' impacts was given to individual Navajo farmers whose plots span from Gadi'i'ahi (Cudeii) to Fruitland.

Government Services Committee Chairman Ervin Keeswood Sr. issued his own memo last week to Resources Chairman George Arthur, who was not present during Thursday's Resources meeting. In it, Keeswood raised concerns that the Navajo Nation is continuing to gain the reputation of accommodating the coal and power generation industries at the expense of its own water needs and those of individual Navajos such as farmers.

Keeswood, whose chapter is Hogback, wrote Arthur: "As you are aware, the Navajo people have become increasingly troubled by the failure of the Navajo Nation Governance to obtain quantified Navajo Nation water rights on behalf of the Navajo people. The Navajo people have also stated their concern that the Navajo Nation government has not developed water uses on behalf of the Navajo people, but that the Navajo Nation government has instead allowed the coal mining and electric power industries to utilize Navajo Nation water. In this instance, the Navajo Nation government appears once again to be providing consideration to the coal mining and electric power industries in the use of Navajo Nation water, without considering the needs and wishes of the Navajo people."

Tribal negotiators including Water Management Branch Director John Leeper and water rights counsel Stanley Pollack met one week ago with the power plant representatives to come to terms on the forbearance agreements. Those opposing the plans, such as Upper Fruitland Delegate LoRenzo Bates, said that the tribe would be almost giving away NIIP water by leasing it for the price of just $80 per acre-foot.

Bates has raised the other main objection to the forbearance agreements, in that the tribe is showing considerable haste to accommodate the power plants while not even considering to offer any type of compensation to the hundreds of Diné farmers in the event of a shared water shortage situation. These farmers stand to lose between hundreds and thousands of dollars' worth of lost crops if their growing season is cut short, Bates has said.

The issue of "giving away" leased NIIP water appears to have been resolved. Rather than lease water to the power plants at a flat rate of $80 per acre-foot, a tiered structure would recognize that the value of NIIP water increases further into the growing season that normally runs from April through October.

Keeswood's memo projects that the power plants may lease up to 18,000 acre-feet of water, for which the power plants would pay a minimum rate of $100 and a maximum rate of $392 per acre-foot. According to Leeper, the tribe has backed away from a plan to lease NIIP water to the power plant for three years and is now just sticking with this calendar year.

Depending on the amount of water leased, NAPI may have to give up some of its crop production. A plan to reduce its bean crop acreage from about 8,000 to 4,000 acres a crop that the farm contracts out to other parties has been considered.

Keeswood wrote that although the prospect of earning millions of dollars yearly off the lease of NIIP water may sound good for the tribe's undesignated reserve, "it is uncertain" how the forbearance agreements "would affect the ability of the Navajo Nation to regain rights to these waters in 2006 (pending a three-year agreement) and subsequent years." The earnings off the leased water must be compared to the projected earnings from NAPI's crops that would be sacrificed, he wrote.

Bates has said that the forbearance agreements' importance to the tribe has such far-reaching effects that they should be approved by the Navajo Nation Council. Keeswood concurs with Bates on the issue of council approval. Joining them Thursday during the Resources meeting was Bates' sister, attorney Claudine Bates-Arthur, and Shiprock Delegate Wallace Charley. All have expressed concerns that individual Navajo farmers are being asked to give up some of their water rights by agreeing to share in a drought-related shortage, yet won't receive any compensation.

Forest Lake Delegate Amos Johnson told his fellow Resources members Thursday that they should not wait for Arthur's appearance in order to consider the forbearance agreements. Johnson listened as committee Vice Chair LaVern Wagner, whom he competed against for the vice chair position, said she would not move ahead with the issue because she did not feel comfortable without Arthur being present. Johnson warned Wagner that the committee needed to act on the forbearance agreements immediately.