Diné Doubt Fairness of San Juan River Water Rights Accord
Part 1
Kathy Helms Diné Bureau
Gallup Independent
07 January 2004
   

(Editor's Note: This is the first in a series of articles on the proposed Navajo Nation Water Rights Settlement for use of waters in the San Juan River Basin.)

SHIPROCK — Is the proposed water rights settlement for the use of waters in the San Juan River Basin the best deal for the Navajo people? That's what folks who attended Monday night's public meeting in Shiprock wanted to know.

And despite the eleventh-hour whirlwind courtship of the people by officials in the Office of the New Mexico State Engineer and the Navajo Nation Water Rights Commission, not everyone was convinced the people's best interests were at the heart of the deal, including Shiprock Chapter President Duane "Chili" Yazzie.

"It is reported that the settlement has been in the making for eight years. It is extremely troublesome that we are made party to the discussions at the last moment. As Navajo citizens we are placed in a difficult situation to give informed input based on analysis, which is not feasible with the few short days we are given for input. It is near unconscionable to expect us to give substantive comment on such a monumental settlement with the imposed time constraints," Yazzie said.

While the proposed agreement itself is over 200 pages, that information has been condensed into a 10-page Executive Summary which has been gone over at length during meetings in Farmington and Shiprock. However, according to Navajo Nation Water Rights attorney Stanley Pollack, "The executive summary is not part of the final agreement. It's just intended to be explanatory."

That document focuses on diversions and depletions in the San Juan River Basin and highlights the more than $800 million the Navajo Nation will receive to complete water projects once the Nation signs on the dotted line. It does not focus on what the Nation would be giving up, including the right to puruse legal action against the United States over the Navajo Indian Irrigation Project (NIIP).

People such as Yazzie are skeptical. "We should not agree to the inclusion of the funds needed to complete NIIP and the construction of the Farmington/Shiprock pipeline in the settlement, as the authorization of those projects were done through separate federal legislations. To allow this proposed water rights settlement to 'mop up' these outstanding federal obligations work to our detrement in the bottom line monetary calculations,"he said.

"I cannot help but think that the proposed settlement may be only a vehicle, a means to accomplish an agenda that is of more urgent priority, which is to assure delivery of more water to the Rio Grande and to deliver water to Gallup,"he said.

Alfred Bennett was one member of the audience who requested a time extension for the public comment period. Bennett sat a bottle of water where everyone could see.

"New Mexico is in trouble with water right now. And all they're going to do is use our water for the rest of the state. Do you know how much water goes for in Rio Grande Valley? $5,000 for one acre foot. In Santa Fe, $20,000 to $40,000 for one acre foot of water. You know, we're getting the short end of the stick on this," Bennett said.

Several other audience members questioned the timing of the unveiling of this historic agreement just before the holiday season (Dec. 5, 2003), and called for an extension of time so that they could better review the proposed agreement. But New Mexico and Navajo officials, as well as Pollack, say time is of the essence if the Navajo Nation wants to pursue a settlement this year. If so, the legislative schedule in Washington, D.C., dictates that the settlement be introduced in March.

When questioned whether there were provisions for a time extension, New Mexico officials said it would be up to the Navajo Nation Council to grant such a request. But passing the buck to the Navajo Nation does not provide a vehicle for an extension of the public comment period for affected non-Navajo users who attended Monday night's meeting and who also have a voice in the proposed settlement agreement.

The timeline etched by the Navajo Nation and State of New Mexico officials does not allow for an extension of the public comment period. "We're inviting people to submit comments," Pollack said. However, "There's no guarantee that anybody is going to change the agreement based on the comments. The comments are there to try to provide guidance to the people."

With the Jan. 15 deadline for public comments and the proposed settlement timeline, that would leave officials 15 to 30 days to go through the comments, make changes and incorporate them into the proposed settlement agreement, and still get it approved by the Navajo Nation Council in February.

Pollack said some are asking whether the Navajo Nation will have a referendum on the proposed settlement. "If council wants to have a referendum, that's something the council can do," he said. "If we have a referendum on this, it becomes very, very tricky. The council has to decide what its risks are in litigation vs. the benefits of the settlement."

Navajo Attorney General Louis Denetsosie told the audience, "Every one of us has to make up our own mind. To me, it's a good settlement.

"Under the existing law, there are things that are very restrictive about the use of Indian water. We cannot use return flow. This settlement will allow us to use return flow. The law will not allow us to use Navajo Irrigation project water for other than irrigation. This settlement will allow us to use that water for other purposes. Once these rights are quantified, we will never lose these waters. This will be our water," he said.

The reality is that Navajo Nation does not have enough money to fund infrastructure which would allow the Nation to use the waters of the San Juan River Basin, according to Denetsosie. "The government will give us the money to put that water to use."

Bennett, as well as council delegate LoRenzo Bates questioned what officials referred to as a "water bank."

Bennett asked, "Where is that water bank at Navajo Reservoir? I'm really concerned about that because in the contract it says that the Navajo Nation shall have no holdover storage rights in Navajo Reservoir from year to year. They tell you about a water bank, but there's really not one from what I'm reading right here."

He also raised questions on diversions and depletions. We've got 304,280 acre feet that's not accounted for between diversion and depletion. I think we need to take a good hard look at all these figures and I would really encourage an extension. You put pressure on our councilmen not to take any action on this or to vote against it. There are a lot of questions," he said.

According to Bates, a bank, by virture of its nature, is a place where you can make deposits and withdrawals. "My interpretation of a bank is that we, the rest of the water users, in the event that NAPI and NIIP do not use all of that water does that mean we get to use it in the event of a drought?"

Bates also said the Executive Summary refers to irrigation projects such as Hogback-Cudei as "senior water rights users. It seems the contractors have more availability to water than we as senior water rights users, which is a real concern, because they're our juniors. We're the seniors. So my point is, we should have some storage rights behind the dam, and not make us junior; we are senior."

Also in the Executive Summary, he said, "It talks about transferring the water. But before it gets transferred, we still have to go to the state for approval when it's our water, which is not right. If it's our water, then we should do what we want with it.

"According to the settlement, it's talking about changing the NIIP water from just irrigation to municipal/industrial uses. But it still ties our hands to an extent if we want to lease a portion of that water. ... We should have the option to decide what we want to do with that water, aside from what's already spelled out. If the Navajo Nation with all this water is in the same situation as we are in terms of lack of economic development, and the folks downstream want to develop but want to lease water, we should be given that opportunity and we shouldn't have to go to the state to do that," he said.

Reprinted as an historical reference document under the Fair Use doctrine of international copyright law. http://www4.law.cornell.edu/uscode/17/107.html