Monthly Archives: November 2010

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Forgotten People's PowerPoint is available on the US EPA Region 9 Superfund website

Forgotten People’s PowerPoint presentation is available on the US EPA Region 9 Superfund website

(It is a large file and will take a long time to download)

http://www.epa.gov/region9/superfund/navajo-nation/stakeholder.html

Addressing Uranium Contamination in the Navajo Nation
Stakeholder Workshop Presentations, 2010
Building Capacity
Forgotten People (PDF) (79 pp, 29.2M, Large File)

http://www.epa.gov/region9/superfund/navajo-nation/pdf/stakeholders/2010/ForgottenPeople.pdf

EPA posts LSU scientist’s uranium pollution presentation

LaSierra University (LSU) posting “EPA posts LSU scientist’s uranium pollution presentation”

http://www.lasierra.edu/index.php?id=6740

November 12, 2010

By Darla Martin Tucker

RIVERSIDE, Calif. – (www.lasierra.edu) The Geiger counter’s gamma radiation readings were jumping off the charts. La Sierra University biologist Lee Greer held the instrument, sweeping it over sand, rock and around the aging structure of an abandoned uranium mine in Arizona.

He wanted to know whether any radiation was seeping into the environment from the old open-pit Milestone uranium mine and mill, one of hundreds of defunct uranium operations scarring the deserts of Navajo Nation in Arizona, Utah and New Mexico. Uranium is a silvery-white metallic chemical element with nuclear properties. It is used as a fuel to produce nuclear power and weapons. Gamma radiation, the most powerful form of radiation, is a property of uranium and easily penetrates animals, people and objects. Exposure to it can lead to damaged DNA and cancer in humans.

Forgotten People, a nonprofit in Tuba City, Ariz. that advocates for Native Americans, worked with Greer during his latest visit to Navajo Nation the second week of September. While visiting the mine with representatives from the U.S. and Navajo environmental protection agencies and Forgotten People, Greer used the Geiger counter to check for radiation in pebbles, sand and objects near the shuttered Milestone operation. The tests proved positive; some readings on the counter were 100-fold greater than those taken in non-radiation-polluted areas. Cattle tracks could be seen near the mill and the Little Colorado River flowed nearby. An old metal marker affixed in concrete at the site carried the name Western Nuclear Inc. A New York University journalism student who accompanied the group captured the visit in a video documentary.

As a result of the group’s site visit and Greer’s tests, the U.S. Environmental Protection Agency’s Region 9 made assessment of the abandoned Milestone mine a priority. The agency was previously unaware of the abandoned site, said Will Duncan, an EPA Region 9 federal on-scene coordinator who accompanied the group to Milestone.

On Nov. 23, EPA Region 9 posted on its Web site a uranium contamination presentation Greer delivered during an agency community workshop in Tuba City the week of his trip to Navajo Nation. The presentation is available at the following link, under stakeholder presentations and Forgotten People: http://www.epa.gov/region9/superfund/navajo-nation/stakeholder.html.

Additionally, on Nov. 3, Greer gave two presentations on his uranium contamination research and participated in a panel discussion during the annual meeting of the Geological Society of America in Denver, Colo.

“The good news is there were not any structures where people were living that were close by,” Duncan said. He stated that the agency apprised site assessment personnel of the mine’s location. “It’s been made a priority,” he said last month. The EPA needs to determine whether the property is state land or on the reservation, “whether we take the lead” before any necessary cleanup can commence, he said. “If it’s on the reservation it could be an EPA and Department of Energy shared [assessment],” said Duncan.

A contractor screened the Milestone site earlier this month in the first of a series of assessments that involves radiological readings, photographs, GPS readings, location of homes and other data. While the site appears to have included a former uranium mill, further investigation and research of historical records is needed to verify the presence of the mill, said Jeff Inglis, EPA site assessment manager. “If it is confirmed, it is our expectation that we will inform the Department of Energy about it.”

EPA’s Region 9 office deals with environmental issues in Arizona, California, Hawaii, Nevada, Pacific Islands subject to U.S. law and tribal nations.

According to the EPA’s Region 9 Superfund Web page, “from 1944 to 1986, nearly four million tons of uranium ore were extracted from Navajo lands under leases with the Navajo Nation. Many Navajo people worked the mines, often living and raising families in close proximity to the mines and mills.” The region is pocked with 520 abandoned uranium mines and the EPA is participating in a five-year, multi-agency plan addressing contamination that may emanate from the old sites. Thus far the effort has resulted in 197 site screenings of abandoned mines, assessment of 199 structures and the completion of 14 replacement homes, according to an EPA report. The EPA aims to complete site screenings for all 520 abandoned uranium mines by the end of 2011 and clean up the highest risk mines. Along with other agency partners, it has also committed more than $22 million to provide drinking water infrastructure for more than 300 homes and to fund a pilot water-

Greer tested levels at a second mine site during his September visit. He joined two Canadian journalists, Forgotten People representatives and a uranium contamination advocacy group leader for a hot, six-mile hike down eroded strata into a canyon to reach the defunct Gold Springs mine. Navajo medicine man Freddie Nez guided the group. “We had Geiger counter readings up to 28,000 counts per minute,” Greer said. “Being down there made me worried a bit.” The group visited Nez’s family, several of who worked in the mine when it was open, including Nez. He and three family members have had cancer, Greer said.

Greer’s data and the publicizing of his findings to national-level groups are of significant benefit to Forgotten People and its efforts in drawing attention to the plight of the Navajo, said Don Yellowman. For decades Native Americans have drawn water from springs near the mines and in some cases have lived in close proximity to the old operations with no knowledge of the potential hazard.

“We cannot stress and emphasize how valuable it [Greer’s research] is. Before Dr. Greer, people would say, ‘don’t be worried about what’s in your water. It’s naturally occurring uranium.’ People downplay it,” Yellowman said. “It’s a real plus to us to have scientists like Dr. Greer take samples to his lab and then show those results to people in the field of science and health, that these are the hard facts,” he said.

Greer arrived in Arizona with 26 students from La Sierra University who were organized by nonprofit Project Pueblo to repair Navajo homes. Over the months Project Pueblo has brought more than 150 students to Navajo Nation from La Sierra, the University of California, Berkeley, the University of California, Los Angeles and Stanford University.

Some La Sierra students are involved in Greer’s project by helping with clerical tasks associated with his research, he said. While Greer tested for radiation contamination and presented his findings, La Sierra students spent the week renovating the dilapidated homes of Navajo living in the former, 1.5 million-acre Bennett Freeze sector of Navajo Nation. Houses and hogans, many without electricity or running water, fell into disrepair from decades of neglect following a 1966 federal ban enacted by U.S. Commissioner of Indian Affairs Robert Bennett. The regulation, in response to a long-running land dispute, stopped property development and home repair for more than 40 years before the ban was finally lifted in 2009 by the Obama administration.

Greer and the La Sierra students became aware of the Bennett Freeze and uranium contamination issues after reading articles in the Los Angeles Times. Greer first visited the region with another student aid group in June. He traveled to several abandoned uranium mines and took 30 samples in plastic Ziploc bags of soil, water and cow manure for chemical testing back in La Sierra’s labs. Using a gamma ray spectrometer from La Sierra’s physics department and a radioisotope lab in the university’s Price Science Complex, Greer ran gamma ray energy spectra, a type of reading of radiation levels in the samples. Results showed very high levels of radiation, he said.

Greer’s involvement in the uranium contamination issues in Navajo Nation is indicative of his personal commitment to human rights around the world and his views about the inherent responsibilities of his field of work. “I want to make a difference for environmental justice for the people there, along with Forgotten People, and am honored to be associated with the student volunteers,” Greer said. “Everyone on earth, by recent U.N. action, has a right to clean water and sanitation. The rights to health care and a clean and healthy environment, I believe those are fundamental human rights, and as a scientist and an academic, I have a responsibility to speak out.”

(Photo left to right) Stuart Liederman, environmental refugees expert, Marsha Monestersky and Don Yellowman of Forgotten People, and Lee Greer at the Geological Society of America convention.

PR Contact: Larry Becker
Executive Director of University Relations
La Sierra University
Riverside, California
951.785.2460 (voice)

Forgotten People file Notice of Suit against the Navajo-Hopi Land Commission

NOTICE OF SUIT
Navajo Nation Sovereign Immunity Act

NOTICE OF EQUITABLE ACTION AGAINST NAVAJO NATION AND ITS OFFICIALS,
THE NAVAJO-HOPI LAND COMMISSION, NAVAJO-HOPI LAND COMMISSION OFFICE AND ITS STAFF ASSISTANT, THE CONTROLLER OF THE NAVAJO NATION,
and OTHER UNKNOWN ENTITIES AND INDIVIDUALS.

TO: The President of the Navajo Nation
The Attorney General of the Navajo Nation

PLEASE TAKE NOTICE, pursuant to 1 N.N.C. § 555(A) (2005), that The Forgotten People and Don Yellowman, on behalf of themselves and a class consisting of the beneficiaries of the Navajo Rehabilitation Trust Fund, desire to institute suit against the Navajo Nation or its officers, employees or agents, and the prospective plaintiffs give notice that amends its prior notice dated October 22, 2010, retroactive to such date, follows:

Prospective Plaintiffs

The prospective parties include all those impacted by the proposed Twin Arrows Casino or who are denied the benefit of the income and investment from it, as previously stated.

Prospective Defendants

The prospective defendants are the same as in the prior notice.

Nature of Claims

The August 25, 2010 special warranty deed to the “Navajo Nation of Indians (the ‘Navajo Nation’)” created a covenant that runs with the land, deed restriction, or other special condition, that “the Twin Arrows Parcel shall be used solely for the benefit of Navajo families … awaiting relocation….” That is a specific trust in their favor.

The claim stated in the prior notice is restated here, that there is an equitable resulting trust in favor of Navajos for whom the lands were set aside. They are the victims of the Navajo-Hopi Land Dispute, beneficiaries of legislation for their benefit, and the refugees or survivors of the Navajo-Hopi Land Dispute and the Bennett Freeze. Their situation, and the purposes of the tract of land, create a resulting trust in their favor.

There is also a social trust on that tract of land that arises from the aboriginal rights of the refugee-survivors of the Navajo-Hopi Land Dispute, their suffering, their neglect by governments (including their own Navajo Nation government), and arises from a natural law social mortgage.

Given the current political situation of the Navajo Nation and past financing issues with casinos the prospective plaintiffs will also examine fiduciary issues regarding Twin Arrows and compliance with financial statutes and controls, and assert claims as needed.

Relief to be Sought

The prospective plaintiffs seek the relief previously stated, without any limitation on potential relief.

Plaintiffs’ Attorney

The prospective plaintiffs’ attorney is as previously stated and other potential attorneys.

Dated this 24th day of November, 2010

THE FORGOTTEN PEOPLE AND OTHERS

By____________________________________________
Don Yellowman, President of the Forgotten People
P.O. Box 1661
Tuba City, Navajo Nation
(Arizona) 86045

Tel: (928) 401-1777

PLEASE SIGN THE PETITION: Navajo Citizens’ CALL FOR REMOVAL of water lawyer Stanley Pollack, by Declaration, Petition, & Exclusion

Navajo Citizens’ CALL FOR REMOVAL of water lawyer Stanley Pollack,               by Declaration, Petition, & Exclusion

[To be filed with the Water Settlement Court, BIA, Bar Association, and Navajo Supreme Court.]

Because he has most offended and most disregarded the Navajo People and our Treaties, this action is taken by the People pursuant to the Navajo-U.S. Treaties of 1849 & 1868.

SUMMARY

I. Declaring lawyer Stanley Pollack to have committed “outrages” upon the Navajos, under Article VI of our 1849 Treaty, and to have “maltreated” us with regard to our water rights, treaty rights, human rights, and related injuries.

II. Declaring lawyer Stanley Pollack to be a “bad man among the whites” under Article 1 of our 1868 Treaty.

III. Petitioning the United States―by delivering this Declaration and Petition to its Navajo Region Director of the Bureau of Indian Affairs―to proceed, at once, against Mr. Pollack under Article VI of our Treaty of 1849 and Article 1 of our Treaty of 1868.

IV. Calling upon any Navajo tribunal, or Treaty-authorized body of Navajos, of appropriate authority, for the exclusion from our Reservation of Mr. Pollack for past and ongoing injuries against us, our families, our rights, and our future as a separate and sovereign indigenous people.

V. Supporting our Navajo Supreme Court in their opinions to save our government, and to disbar lawyers for the ongoing coup against our government by certain lawyers, and calling on our Supreme Court and the Navajo Nation Bar Association to disbar lawyer Stanley Pollack for misconduct under the Rules of Professional Conduct, specifically (but not exclusively) Rule 8.4.

WHEREAS:

A. Under our Treaties, it is we, the Navajo People (i.e., the “Indians” referenced in the Treaties) and not the modern Navajo central government, that ultimately hold the rights and responsibilities under the Treaties; and

B. Under Article VI of our 1849 Treaty it states that “Should any citizen of the United States . . . maltreat any Navajo Indian or Indians, he . . . will be arrested and tried, and, upon conviction, shall be subjected to all the penalties provided by law . . . .”; and

C. Under ARTICLE 1 of our 1868 Treaty it states that “if bad men among the whites . . . shall commit any wrong upon . . . the property of the [Navajo] Indians, the United States will, upon proof being made to the agent [i.e., the Navajo Region Director] and forwarded to the Commissioner of Indian Affairs at Washington City, proceed at once to cause the offender to be arrested and punished according to the laws of the United States, and also to reimburse the injured persons [the Navajo people] for the loss sustained”; and

D. It is we, the Navajo people, and our property that are ultimately protected by the Treaties, and we are among the persons who have sustained and continue to sustain outrages against us and injuries to our property rights, and in particular our water rights, our economic rights, our rights to just compensation for waived and/or lost rights, and our futures at the hands of Mr. Pollack (see Exhibit A, “Twelve Points of Injury,” at the end of the signature pages of this document); and

E. As far back as 1832, in Worcester v. Georgia, the U.S. Supreme Court acknowledged inherent Indian rights to exclude persons from their lands, and Cohen’s Handbook of Federal Indian Law (2005) further declares that a tribe needs no grant of authority from the federal government to exercise the inherent power of exclusion of persons from tribal territory, and that this power is a fundamental sovereign power of a tribe to protect its territory and the welfare of its members.

NOW THEREFORE BE IT DECLARED, PETITIONED, AND/OR DEMANDED THAT:

1. Lawyer Stanley Pollack is blameworthy and accountable for our maltreatment through his past, present, and continuing conduct of dishonesty, fraud, deceit, and misrepresentation of numerous matters regarding our water rights in general, the independent rights of those of us who are Navajo allottees of lands, including allottees under Section 4 of the Allotment Act of 1887, or the several other allotment acts or our 1868 Treaty, and his gross and intentional failure: (a) to acknowledge, respect, and properly employ our treaties and our ancestors sacrifices that secured those treaties, (b) to honestly and fully reveal the relevant law to the people, the Navajo Water Rights Commission, and the Navajo Nation Council, (c) to honestly and fully represent our rights, (d) to honestly and fully disclose our options for maximizing our potential water rights claims, (e) to honestly and fully reveal our People’s options for compensation for any forbearance, loss, or waiver of relevant rights, and (f) to refrain from isolating us from the truth through his misleading, misinforming, deceiving, and manipulating of our leaders to the point that the majority exclude our People’s opinions, desires, and best interests in favor of his and in favor of the outside interests he so obviously serves at the cost of our People, and should therefore be disbarred from practicing law on the Navajo Nation.

2. Pursuant to Clause No. 1, Exhibit A, and many years’ worth of otherwise identifiable misconduct regarding our water rights, lawyer Stanley Pollack is hereby declared to have committed outrages upon us, and we hereby request the Navajo Regional Director of the Bureau of Indian Affairs to proceed accordingly under our collective rights as maltreated “Navajo Indians” pursuant to Article VI of our Treaty of 1849.

3. Pursuant to Clause No. 1, Exhibit A, and many years’ worth of otherwise identifiable misconduct regarding our water rights, lawyer Stanley Pollack is hereby declared to be a “bad man among the whites” under Article 1 of our Treaty of 1868, and we hereby request the Navajo Regional Director of the Bureau of Indian Affairs to proceed accordingly under our collective rights pursuant to the Treaty, reminding the Director that we are the “injured persons” comprehended by the Treaty and that no action is required by the Navajo central government to bring this request to the Director.

4. Pursuant to Clause No. 1, Exhibit A, and many years’ worth of otherwise identifiable misconduct regarding our water rights, we, the undersigned, hereby declare lawyer Stanley Pollack to be a threat to our territory and government and hereby issue a Navajo citizens’ demand that he should be efficiently, effectively, physically, and forever removed and excluded from our Reservation in the best interests of our sovereignty, rights, property, and welfare, and the welfare of our families, the Navajo People of today, and future generations.

[All signatures count, but only one signature per citizen. Any enrolled Navajo may sign. There is no Treaty age limit for protection rights against outrages, injuries, or threats by enemies like Mr. Pollack.]
SIGNATURE         PRINT         NAME         ADDRESS          ENROLLMENT #

1________________________________________________________

2_________________________________________________________

3_________________________________________________________

4_________________________________________________________

5_________________________________________________________

6_________________________________________________________

7_________________________________________________________

8_________________________________________________________

9_________________________________________________________

10________________________________________________________

11________________________________________________________

12.________________________________________________________

13________________________________________________________

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15. _______________________________________________________

16._______________________________________________________

17._______________________________________________________

18._______________________________________________________

19._______________________________________________________

20._______________________________________________________

———————————————————————————-

Twelve “SHOCKERS” & TRUTHS about the:

Northeastern Arizona Indian Water Rights Settlement
[© 2010, The Diné Water Rights Groups]

CONTENTS

1. TREATIES ARE NOW MISSING (but were used by original lawyers in the ‘70s & early ‘80s)

2. THREAT OF ADDITIONAL LITIGATION & PUNISHMENT IS FALSE & THE PEOPLE’S RIGHTS TO PARTICIPATE ARE DENIED

3. MINIMIZING WATER RIGHTS (WINTERS RIGHTS WAIVED) & VIOLATING HUMAN RIGHTS

4. WAIVER OF PRESENT CLAIMS OF OVER $2 BILLION (future LCR irrigation effectively precluded)

5. AZ WATER BANK MOSTLY SERVES SELF, OTHER STATES, & SUBDIVISION DEVELOPERS WITH WATER FOR HUNDREDS OF THOUSANDS OF HOMES

6. AGRICULTURAL PURPOSE EXCLUDED

7. POLLACK’S ESSAYIST: “NAVAJO HAS NO AGRICULTURAL LAND”

8. SETTLEMENT LANGUAGE WILL BE CHANGED BY OTHERS AND POLLACK (perhaps with another waiver of the “canons of construction”)

9. REFERENCES: WATER RIGHTS CLAIMS IN MILLIONS OF ACRE FEET

10. LAWYER CONFLICT OF INTEREST

11. FEDERAL SELF-DETERMINATION POLICY VIOLATED: WESTERN NAVAJO PIPELINE IS NOT NAVAJO (project loss and jobs loss)

12. LAKE MEAD’S HISTORIC LOW MEANS WE MAY NOT GET WATER

—————————————————————————————

DETAILS ON THE 12 SHOCKERS & TRUTHS

1. TREATIES MISSING. No Arizona tribe, except Navajo, has a treaty with the United States, and we have two of them—1849 and 1868. Neither is used or even mentioned in the settlement. The same thing happened with the San Juan settlement. After complaints, the Treaties were given only lip service in the final San Juan settlement. How is it we Navajos can allow our supposedly loyal lawyers to continue to deny our Treaty rights? (Important: The U.S. 9th Circuit Court of Appeals reports in its 1981 ruling in Navajo Nation v. U.S. that “the Navajo Nation brought this action . . . seeking a declaration of the Tribe’s rights to the Little Colorado River under its treaties with the United States and various federal statutes and orders” (emphasis added). What happened to our Treaty Rights after lawyer Pollack arrived in the mid-1980s? On the strength of our Treaties rests our largest water rights claims. While other tribes employ their Treaties, we allow one man to control our leaders’ minds and get them to discard our own Treaties, in addition to discarding our history and our traditions, and the sacrifices of Narbona (who gave his life for our 1849 Treaty) and Hwéedi Dine’é, who suffered as prisoners of war. And, on the day he got the Council to vote for his Arizona settlement, he mocked our fundamental laws and our Supreme Court, and got many of our Council to shamefully laugh along with him.)

2. (A) LAWYERS AND WATER RIGHTS COMMISSION DENY AND DISCOURAGE THE NAVAJO PEOPLE’S RIGHTS TO PARTICIPATE IN THEIR OWN LITIGATION SETTLEMENTS and (B) THE PEOPLE’S CHOOSING TO STUDY AND IMPROVE THE SETTLEMENT THROUGH AN APPROPRIATE DELAY WILL NOT START NEW LITIGATION OR BRING DOWN THE WRATH OF A COURT. We are already in water rights litigation. The two principal cases are the Gila River basin adjudication and the LCR basin adjudication. That’s what the settlement is for—to “settle” the old litigation. We have been in each case for over 30 years, and they will not automatically stop if the Navajo People want to know what it is they are settling for. In fact, the U.S. Supreme Court, in the Indian water rights case of Arizona v. California (1983) said that “Indians are entitled to take their place as independent qualified members of the modern body politic . . . [and] the Indians’ participation in litigation critical to their welfare should not be discouraged.” The threats by DOJ of no more negotiations and then court punishment are false. Other tribes willing and needing to continue negotiations get to do so, e.g., Hopi.

3. MINIMIZING OF NAVAJO WATER RIGHTS (abandoned are Winters Rights that would reserve past, present, and future needs) and VIOLATING OF NAVAJO HUMAN RIGHTS. In 2002, N.N. attorneys tricked the Council into endorsing a 2001 Arizona Supreme Court case they said was “a huge win for the Navajo Nation.” But, a Native lawyer who graduated from Mr. Pollack’s own Michigan law school did a law review article on the case in 2003, in the Michigan Journal on Race and Law.

Native Lawyer Galen Lemei has this conclusion about the Arizona Supreme Court’s 2001 decision. “Tribes were robbed of most of their land long ago. Now, the Arizona Supreme Court reasons that they should also lose the right to the water necessary to reap the full benefit from the little land they have left. . . . It is unfair that tribes should lose their water rights because of [government failure]. The Arizona Supreme Court [has now] established a standard that gives tribes a shadow of what they had before. In the fight for western water, the tribes [in Arizona] are the losers.”

The Arizona case Pollack praises calls for minimizing Indian water rights, and is contrary to federal precedent. (The case was decided in November of 2001, and tries to set a precedent through the Gila River adjudication.)

In this anti-Indian case, the Arizona Court says that a “minimalist” approach must be taken to Indian water rights. The court mistakenly relies on two U.S. Supreme Court cases as authority. They are Cappaert v. U.S. (1976) and U.S. v. New Mexico (1978). The first one dealt with federal reserved water rights for a rare and curious desert pupfish inside Devil’s Hole in Death Valley, California. The second case dealt with federal reserved rights for the trees and animals of the Gila National Forest in New Mexico. In both cases the Supreme Court said that “minimal need” was the standard for the amount of water that could be reserved for each location. See also Greely v. Confederated Salish and Kootenai Tribes, 712 P.2d 754 (1985); Peg Rogers, In Re Rights to Use Water in the Big Horn River, 30 Nat. Res. J. 439 (1990). (The dictionary says “minimal” means “least possible.” Note: the fish and the forest are not humans.)

Never has the U.S. Supreme Court applied a “minimal need” standard to human beings, including American Indians. In fact, in footnote 4 of the Gila National Forest case, the U.S. Supreme Court employed the term “reasonable quantity of water” in reference to the case of Winters v. U.S., the famous Indian reserved water rights case of 1908.

Now, the Arizona Court, and the Nation’s lawyers, have abandoned Winters Reserved Rights and are applying the “minimal need” and “minimalist” concept for the first time to human beings. This is a Human Rights violation. That is a reason Native lawyer Lemei published his review in the Journal of Race and Law.

4. WAIVER OF PRESENTLY IDENTIFIABLE INJURY AND COMPENSATION CLAIMS OF OVER $2 BILLION DOLLARS. (This does not consider the likely future $1 Billion worth of free use of Navajo water for NGS allowed through the settlement waivers. It is important to note that a waiver in the San Juan Settlement, of our downstream ownership of NAPI/NIIP water, costs us up to $100,000,000 per year from lost lease revenues for water that flows downstream. This right was waived in the San Juan settlement.)

a. $160,000,000 ownership value (@$4,000/af). Waiver of priority rights to 40,780 afy for historic irrigation uses in upper LCR area on the Reservation. See pp. 22-23 of the proposed settlement. Our unused water from the LCR is claimed and used by Arizona for banking of water and other purposes—for free.

b. $1 Billion past use by Navajo Generating Station. At the already regionally applied industrial lease rate of $1,000 per acre foot, NGS has used more than $1 Billion worth of Navajo water (34,000 afy for some 35 years) during its operational life. It has done so for free.

c. $420,000,000 in ownership values (@$4,000/af). This is for the 105,000 afy identified in the BIA Navajo Water Rights Study of 1982 for a 20,000 acre farm NE of Leupp to serve the Leupp, Bird Springs, and Tolani Lake region with forage and other crops, as well as local jobs. A 77,000 acre foot irrigation lake would have served the farm, which was determined to be economically feasible.

d. $1.6 Billion for the 160,000 afy of water that flows through the Nation past the Cameron gaging station. When this water reaches the Colorado, it’s ownership value is no less than $10,000 an acre foot. Navajo is prohibited from owning this water in the settlement, and can only use what it can capture/divert, and will have a junior priority date to that captured. Future irrigation development on the LCR is also effectively precluded to Navajo in the settlement. There is reference made that any future reservoirs be “primarily” for municipal use. Additionally, Navajo is restricted to diverting water from the LCR “that reaches” the Reservation (p. 22). In a cruel irony, this is what started the Winters Doctrine case for the Fort Belknap Reservation in Montana. The upstream farmers had told the tribe they could use whatever water “reaches” the reservation. But there wasn’t enough and there was no reliable priority. That situation for Indian tribes is what the Winters doctrine case got rid of. Now the Settlement is throwing Navajo back to pre-Winters doctrine times. (But, Navajo could demand to own this LCR water, let it run to the river, and then trade for and take clear water from Lake Powell and/or lease the water downstream for revenue to fund on-Reservation economic development. The water’s value, Navajo Winters rights to it, and our People’s future demand this be done.)

5. ARIZONA GETS TO BANK, FOR FREE, OUR UNUSED WATER THAT FLOWS PAST US. Arizona has two water banking programs. Through these programs, Arizona takes unused water and puts it underground (a) for other states, (b) in preparation for shortages, and (c) to establish a housing subdivisions program to help Arizona developers justify building hundreds of thousands of homes.

6. AGRICULTURAL PURPOSE OF THE RESERVATION EXCLUDED FROM HOMELAND PURPOSE THE BY LAWYERS. “Cohen’s Handbook of federal indian Law” (2005) declares under its Indian water rights section, at page 1185, that “One purpose of virtually all reservations is agriculture.” Our Treaties jointly establish this purpose. We can see that the agricultural purpose is excluded from the Settlement (as it was in the San Juan settlement) because a joint homeland/agricultural purpose would justify water rights claims several thousand percent higher than is presently the case in the Arizona settlement. Today, at least 80% of Arizona’s water is used for irrigation. (See the Colville Confederated Tribes case (647 F.2d 42 (1981)) and the Adair case (723 F.2d 1394 (1983)) for the concepts that the general purpose of a reservation, to provide a home for Indians, is to be liberally construed and neither the Cappaert case nor the New Mexico case requires the court to choose between a single purpose.)

Allottees also have agricultural rights, and are nominally addressed in the settlement; but they are not represented. For Mr. Pollack to say the allottees’ issues are with the United States is disingenuous. They are not represented in the Settlement, have not received notice (as attested to by a Council Delegate allottee during the Council’s November 4, 2010 session), and have therefore not been afforded an opportunity to be heard. This is a violation of due process under the U.S. Constitution. Allottees deserve, and the circumstances demand, independent and competent representation of their rights. They are Navajos too and should not be shunted aside by Mr. Pollack et al.. That was done by Tohono O’Odham in their 1982 settlement, which could not be fully implemented for 22 years, partly because of an allottees’ law suit and the need for a second settlement agreement in 2004 to remedy the original oversight. The U.S. Supreme Court has emphasized the importance and interests of “every claimant” in a water rights adjudication. Nevada v. U.S, 463 U.S. 110, 139 (1982).

7. POLLACK’S ESSAYIST: NAVAJO HAS “VIRTUALLY NO AGRICULTURAL LAND.” Stanley Pollack went to the U. of Michigan law school. In 2009, the University journal, Michigan Today, interviewed Pollack and reported, among other troubling information, two absolutely incorrect declarations (I) prior appropriation, or use-it-or-lose-it, applies to Navajo water rights and (II) “virtually none of the reservations 26,000 square miles is suitable for agriculture.” (Available on the Internet.)

In 1961, R. Young and the BIA Navajo Area Office prepared and published a soils report in “The Navajo Yearbook 1951-1961.” They noted that the Nation has 13 million acres of irrigable land, including 1.6 million acres of excellent soil, 3.5 million acres of good soil, 4.4 million acres of fair soil, and 3.4 million acres of poor soil. Thus to say that “virtually none of the reservation . . . is suitable for agriculture” is an outrageous and anti-Navajo declaration to make—even applying the concept of practicably irrigable acreage to the soil numbers. NAPI is 110,000 acres of instant proof of the outrageous statement.

8. SETTLEMENT LANGUAGE WILL BE CHANGED BY OTHERS OR POLLACK (perhaps like the canons of construction were secretly waived in the New Mexico Settlement, and without compensation for this very valuable right). The Water Rights Commission, in its “Whereas” provision 14 of its April 29 approval resolution to the Council for the Settlement, says “The form of the Settlement Agreement may change to reflect editorial, but not substantive, revisions.” This is flatly contradicted by several very significant facts. First, at section 15.4 of the Settlement Agreement itself (p. 101), there are two provisions that call for making later amendments to the Agreement and to the Exhibits. Furthermore, on page 2 of his July 13, 2010, memorandum of transmittal to Resources Committee Chairman George Arthur, Mr. Pollack plainly states:

“The Settlement Agreement includes numerous exhibits, many of which are not final at this time, and some of which will not be prepared until the Settlement Agreement is executed. It is also possible the Settlement Agreement may be modified slightly as the exhibits are finalized. For example, one of the exhibits is proposed legislation for the Arizona Legislature to adopt that would restrict water uses by non-Navajo entities in the LCR basin. The draft legislation has not been finalized and it may be necessary to modify the Settlement Agreement to conform to the final draft legislation. In addition, we anticipate changes will need to be made to the Settlement Agreement to conform to federal legislation approving the Settlement.” [Emphasis added. Plus, he does not note that the Settlement Court’s judgment and decree could change as well.]

Then the Council’s own Settlement approval language says “The Navajo Nation Council hereby approves the proposed [Settlement] in the form of or substantially similar to the form of Exhibit ‘A’.” [Emphasis added. “Substantially” means to a large degree or similar to the main part of something.)

In no more than the length of a sentence added to the San Juan Settlement language before it was finalized―and in devious language—the federal “canons of construction,” or court guidelines of interpretation for Indian treaties, agreements, legislation, and regulations, were waived. These guidelines are an important safety net for Indian tribes, and are also state case law in New Mexico, see State ex rel. Martinez v. Lewis (N.M. Ct. App. 1993). Thus, they were already in place, because of state case law, to protect Navajo interests in the San Juan Settlement. The New Mexico Court of Appeals well describes the canons by saying that (1) treaties and agreements are to be construed, or interpreted, as far as possible, in the sense that Indians understood them and in a spirit that generously recognizes the full obligation of the United States to protect its dependent nations and (2) when there is a vague treaty or agreement together with a course of dealing that, at best, can be characterized as ambiguous, courts must rule, “as a matter of law,” in accordance with canons of construction that liberally favor Indians.

However, there was a problem with the San Juan Settlement. The state of N.M. was reporting Navajo rights in the Settlement to the media truthfully, and their figures on the gross rights tended to be less than was being shared with the Nation by Mr. Pollack. Someone noticed this and realized the discrepancy could lead to a legal conflict and potential win by Navajo based on (a) how the Nation was interpreting the Settlement and (b) the canons of construction being accepted as “a matter of law” in New Mexico. So, the canons were quietly thrown out, or made inapplicable to the San Juan Settlement, by slightly modifying language added to the Settlement.

This was discovered by James Henderson, Navajo elder and retired Arizona State Senator, and reported to the Council in a letter. The Council requested a reply from its legislative counsel and DOJ. The letter of reply to the Council incredibly stated that it was no big deal, and “there is no guarantee the Nation would ever need them (the canons of construction) anyway.” This genuinely ridiculous reply is equivalent to a car dealer delivering a vehicle to a customer and then cutting out the seat belts and removing the spare tire, while saying “There is no guarantee you’ll ever need them anyway.” The Council left the issue at that, accepting the silly reply from its lawyers.

So, the canons-of-construction safety net was removed by Mr. Pollack in the San Juan Settlement. It is suspected he will do likewise through an inserted sentence or two in the new Arizona Settlement. Also, Mr. Pollack never informed the Council or Commission that under the Nation’s 1849 Treaty, in combination with New Mexico case law (State ex rel. Martinez v. Lewis), the Nation had a claim to 1849 priority water rights on at least the original 1868 Treaty lands in New Mexico. (Incredibly, as recently as summer of 2010, when the water rights groups began referencing it again, most or all Water Rights Commission members remained unaware of even the existence of an 1849 Navajo-U.S. Treaty. What sort of tribal lawyer would let this kind of thing happen?)

9. WATER RIGHTS CLAIMS IN THE MILLIONS OF ACRE FEET. A SAMPLE.

a. In the 1970s the Navajo Nation openly discussed claiming 2/3 of the annual flow of the Colorado River, or about 10,000,000 acre feet. (Author Phillip Fradkin’s famous 1995 book on the Colorado River).

b. In 1980, Interior Solicitor Doug Back and Navajo Nation lawyer Jeff Taylor suggested in a law review on Navajo Water Rights (in the prestigious Natural Resources Journal) that the Navajo Nation could establish a tribal entitlement (not a claim, but an actual entitlement) to Colorado River Water of perhaps 2,000,000 acre feet with just over 3% of the land area. (In the past, Pollack cited and employed this reference (in the 1990s and in 2000, and we have printed references) when explaining to outside audiences (but not to Navajo Nation audiences) what the huge potential rights of Navajo might be.)

c. In 1986 attorney Gary Weatherford and Dr. Lee Brown published a renowned book on the Colorado River and related water issues, and stated the expected Navajo claim for Colorado River water would be in excess of 5,000,000 acre feet. Az. Governor Bruce Babbitt wrote the book’s foreword.

d. In 1991, law Professor Lloyd Burton published a highly acclaimed book on Indian water rights and stated Navajo might well have a Colorado River Basin entitlement of 5,000,000 acre feet.

e. In 1997, N.N. lawyer Stanley Pollack declared before the Santa Fe audience at the 75th anniversary of the 1922 Colorado River Compact, that he could not see a Navajo Nation claim to the Colorado basin of anything less than 5,000,000 acre feet. (Statement published by the University of Arizona in the “Arroyo” Journal, Vol. 10, No. 1., and available on the Internet.)

f. In May of 2000, four National experts on Federal Indian Law and Indian Water Rights Settlements, including the current Dean of the University of Colorado Law School and Vine Deloria, Jr. (the late and internationally renowned American Indian scholar) recommended and/or endorsed an immediate Navajo Nation claim to the lower basin of the Colorado River in the amount of 10,000,000 acre feet (by filing in the case of Az. v. California, which closed forever six years later). The core recommendation, by three of the experts, was shared directly with President Kelsey Begaye, following a two day seminar on the subject. When the recommendation was presented to Stanley Pollack several days after the seminar, in 2000, he refused to act then, and maintained that stance. Then Pollack and his supporters engaged in a pressure and smear campaign to get the experts to back off from their recommendation.

10. LAWYER SCOTT MCELROY’S CONFLICTS OF INTEREST. Stanley Pollack’s key assisting attorney, Scott McElroy (and his law firm in Boulder, Colorado) have and have had clients in the lower and upper Colorado River basins whose interests are in competition/conflict with ours. If the N.N. had followed the expert advice described in “f.” above, and filed in Az. v. California (which ended in 2006), McElroy could not have participated and would have had to forego whatever millions his law firm has made over the past decade or so off the Navajo Nation. By not filing, Navajo rights were enormously minimized and jeopardized, while McElroy’s firm stayed on the payroll.

11. WESTERN NAVAJO PIPELINE IS NOT NAVAJO. Exactly like “The Navajo Generating Station” is not Navajo, the Western Navajo Pipeline will not be Navajo-constructed or Navajo-operated. Self-determination contracts with the Interior Department for the pipeline’s construction and operation are prohibited by the Settlement language. Then, we must ask, what is NECA for? What is NTUA for. Where do our increasing numbers of college graduates with professional, technical, and engineering degrees go for work? This is obvious anti-Navajo discrimination and contrary to the federal Self-Determination policies.

12. LAKE MEAD’S HISTORIC LOW LEVEL MEANS WE ARE AT RISK OF NOT GETTING WATER. Lake Mead is at its lowest level, ever, since 1937. Arizona and Nevada are junior rights holders to the Colorado River. And, in Arizona, CAP water is junior to main stem Colorado River water. And, 4th priority CAP water is 4 levels down on the already double junior CAP water. If Lake Mead goes much lower, it will trigger the drought plan that reduces Arizona’s share of river water. The first cut will be 320,000 acre feet. Thus, under present circumstances, the CAP water we are being offered is already at risk before we even get any. This hazardous circumstance cannot be tolerated in a new water settlement that is to last us “forever.” Greater assurance is required.

Frozen Land Forgotten People

Audio slide show: Frozen land, forgotten people

A beautiful visual story from the LA Times “Frozen Land, Forgotten People”.

framework.latimes.com
A 1966 ban on development in a disputed tribal area in northern Arizona left many Navajo living in third-world conditions — or forced them out entirely. When the freeze ended, many residents didn’t know where to begin.

Straightjacket: Navajo President Completes Water Rights Coup

Friday, November 19, 2010

Straightjacket: Navajo President Completes Water Rights Coup

Navajo Water Rights Groups Respond to President’s Water Settlement Signoff

By Dine Water Rights
Photos: Navajo water rights marches by Dine’ Water Rights

Navajo Nation President Joe Shirley, Jr., has signed the Northeastern Arizona Water Rights Settlement, now making complete the coup, or outside takeover, of the three branches of our government. That settlement minimizes our rights, constrains us like a straightjacket, and puts us farther on the road to complete suppression.

“Great nations like great men should keep their word.” This famous sentence was written by U.S. Supreme Court Justice Hugo Black, in his dissent in the 1960 case of Federal Power Commission v. Tuscarora Indian Nation. He was distressed that the majority of the Court betrayed both the Tuscarora’s trust and the honor of the United States by allowing the violation of treaties with the Tribe and the flooding of their reservation. That is how we feel today; distressed and violated by our own Council and President, who have dishonored the People’s trust and the oaths they took to uphold the promises of our Treaties.

Like tribes of old, our government has been infiltrated by representatives of outside interests who completely control the information received and decisions made by our central government leaders, while, at the same times, excluding the People from access to their own government. Worst among these infiltrators is long-time water lawyer Stanley Pollack. (You can “google” the 2008 article “Navajo Water Rights: Truths and Betrayals” for some of the deceptions, falsehoods, misrepresentations, etc., Pollack has perpetrated against our People) This kind of thing is not new to tribes in modern times. For example, our neighboring tribes, the Hopis, were, for decades, duped and subverted by their late and mistakenly trusted lawyer, John Boyden, who secretly sold them out to corporate and state interests. They were able to confirm this only after his death. (See the book “Fire on the Plateau” by renowned federal Indian law professor Charles Wilkinson.)

While state and corporate interests refer to Stanley Pollack as the best lawyer they ever had, our naïve, deceived, and self-interested leaders, the majority of whom are now under criminal indictment for misappropriation of funds, merrily follow his every whim—like domesticated animals down to the watering hole.

We are reminded of two great Indian country leaders of the Lakota People, Crazy Horse and Sitting Bull, who were betrayed and slain by members of their own tribe who conspired with government agents. That kind of betrayal is what has happened to us, from our Council and President, as orchestrated by Pollack and his henchmen and women.

It is now left solely up to the Navajo People to try and dig ourselves out of this quagmire of treachery, disloyalty, and internal abuse that President Shirley and the Council have aided outside interests with–in oppressing the Navajo people. This is one of the saddest chapters in our history. To the 51 council delegates and President Shirley, your legacy will be forever remembered as the ones who gave up our precious water rights to outsiders, in 2010.

As advocates for our people, we will also exercise our Treaty rights, which are the People’s, in our fight to reverse this injustice and to put into motion steps to banish this bad man, Pollack, from our Reservation.

Submitted by members of Dine’ Waters Rights
Contact information:
Kim Smith, 505-573-8171, missindigenous@gmail.com
Ronald Milford, 928-606-0787, haskan1990@yahoo.com
Adella Begaye, 928-349-0381, alleda.kay@gmail.com
http://www.dinewaterrights.org/ Water is Life! Protect our Future!

http://networkedblogs.com/aL9IQ

Navajo president signs off on water settlement :(

Navajo president signs off on water settlement

The Associated Press
Posted: 11/18/2010 12:00:00 AM MST

WINDOW ROCK, Ariz.—Navajo President Joe Shirley Jr. has approved an agreement that quantifies the tribe’s water rights in the lower Colorado River basin.

Tribal lawmakers voted in favor of the settlement earlier this month.

It gives the tribe 31,000 acre-feet of water a year from the basin, any unclaimed flows from the Little Colorado River, and nearly unlimited access to two aquifers beneath the reservation.

Critics had lobbied Shirley to veto the settlement, saying the tribe shouldn’t waive future claims to the water and should demand more.

Shirley spokesman George Hardeen said Thursday that the president has confidence in those who negotiated the settlement on behalf of the tribe.

The settlement still needs approval from the Hopi Tribe, the state of Arizona and Congress.

ARIZONA WATER WORRIES WORSEN How low can Lake Mead go?

ARIZONA WATER WORRIES WORSEN
How low can Lake Mead go?

Tony Davis Arizona Daily Star Arizona Daily Star | Posted: Wednesday, November 17, 2010 12:00 am | Comments

Mark Henle / The Arizona Republic This Oct. 22 photo shows low water levels in Boulder Harbor in Lake Mead, which straddles the Arizona-Nevada border. The low levels not only threaten municipal water supplies, they also reduce recreational opportunities.

With Lake Mead at its lowest level since 1937, the odds of near-term Central Arizona Project water shortages affecting Tucson and other Arizona cities are on the rise, officials in charge of the project say.

In January, CAP officials said that it’s unlikely that urban users will face shortages until the mid-2020s at the earliest. But now, they and Bureau of Reclamation officials say in the worst-case drought scenario, municipal shortages could come as soon as six or seven years, if authorities take no steps to obtain more or use less water and the dry weather continues.

More probable scenarios show a 20 to 25 percent chance of the lake dropping low enough to cause municipal shortages by 2019 or 2020 at the earliest, according to Bureau of Reclamation forecasts.

Officials are expected to take some short-term steps in the next few years to try to keep lake levels high in the meantime. But those efforts would only stave off future shortages for a few more years. Today, the CAP staff will meet in Phoenix to look at other ideas, including desalinization of salty groundwater and buying water rights from Colorado River farmers, aimed at getting more water to help it cope with CAP shortages.

It’s possible the outlook this decade for the lake levels and the water project could be worse than the bureau predicts, if climate change is a factor underlying the current drought, a question for which there is no scientific agreement today. But if the drought that’s now lasted 11 years in the Colorado River basin turns around, the outlook for CAP and the river in general will get better.

Here are some questions and answers on Lake Mead and the prospects for CAP shortages.

Q: Why is Lake Mead so low?

A. Drought. On Oct 17, the lake dropped below 1,083.19 feet, its record low since the lake was filling in 1937. It is currently at 1,082.21 feet above sea level. It has dropped 132 feet since January 2000. That’s due to an extended drought in which only about 8.25 million acre-feet of water flows into Mead from Lake Powell annually while more than 10 million acre-feet goes to Arizona, Nevada, California and Mexico on the average each year. An acre-foot is enough water for about three homes for a year.

Q. At that rate, how long before the city of Tucson’s main water supply, the Central Arizona Project, has a shortage?

A. The earliest shortage, in which Arizona loses about 288,000 acre-feet, could come as early as 2012 when the lake reaches 1,075 feet. That’s the level triggering a shortage affecting what’s called “excess” CAP users, including some farms, mines and others who are buying CAP water that other entities have contracts for but currently aren’t using. A shortage wouldn’t affect municipal water users at least until the lake hits about 1,025 feet.

Q. Can this shortage be forestalled?

A. Yes, say bureau and CAP officials. Next year, for instance, the bureau is likely to release extra water from Lake Powell into Lake Mead to hold off a shortage until 2013. Arizona and other river basin states have other plans to try to keep Mead higher a little longer, led by a proposal for Mexico to keep 200,000 acre-feet in Mead for a few years because an earthquake has damaged some of Mexico’s water-supply equipment.

Q. How soon might the lake hit 1,025 feet?

A. If the lake keeps dropping at 11 feet a year as it has in recent years, 1,025 could arrive in as few as six years. But at that level, municipal shortages aren’t a sure thing. The only certainty is that officials of the seven river basin states would have to meet to reconsider the 2007 shortage-sharing agreement under which they set the current ground rules for how shortages in the river affect the three lower basin states of Arizona, Nevada and California.

CAP general manager David Modeer said he hopes those states can also push the 1,025 water level time frame back another three to four years with the short-term measures.

Q. What are the odds of the drought continuing and of the lake hitting 1,025 soon?

A. The upcoming winter is predicted to be influenced by a La Niña weather pattern in which the Southwest and lower Rocky Mountains are usually dry and the Pacific Northwest is usually wet. That pattern could remain through the 2011-2012 winter.

Q. What is the official forecast for the river and lake’s potential to hit troublesome or crisis levels in the future?

A. The Bureau of Reclamation recently issued predictions that differ because they are based on two sets of data. One is historical river-flow data dating back 102 years. The other is tree-ring data developed by the University of Arizona, dating back 1,200 years. Generally, the predictions based on historical data are more pessimistic than those based on tree-ring data. By 2015, the historic data-based forecast is for a 25 percent chance that Mead hits 1,075 feet, an 8 or 9 percent chance that it hits 1,025 feet and a less than 5 percent chance of dropping below 1,025 feet.

On StarNet: Find more coverage of environment- and wildlife-related issues at azstarnet.com/environment

Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.

Attorney Stanley Pollack has set up Navajo for failure. CAP describes costly future water options

URGENT NEWS: Attorney Stanley Pollack has set up Navajo for failure to be behind the 8-ball in all this, rather than a regional leader that could have asserted its rights and led a way to direct Navajo participation in the future, rather then being a door mat. CAP describes costly future water options.

http://azstarnet.com/news/local/govt-and-politics/article_6fd949b0-229c-5077-9485-5a9ebf56d6b4.html

CAP describes costly future water options

Tony Davis Arizona Daily Star Arizona Daily Star | Posted: Thursday, November 18, 2010 12:00 am | Comments

Specifics of the plan

• By 2015, the goal would be for the Central Arizona Project to buy the first 50,000 acre-feet of additional water. The CAP would acquire another 50,000 acre-feet every five years.

• Water users such as cities, farms, mining companies and developers who buy this new water would be responsible for paying all of its costs.

• River-area farmers’ water is considered desirable by anyone needing water because the farmers have a higher priority for getting the river water than does the CAP, which would be the first major user in the three lower-basin states of the Colorado River to get cut off from using river water in times of shortage.

• The brackish groundwater that could be used by the CAP would come from the Buckeye area and other areas west and southwest of Phoenix. The other groundwater would come from the Harquahala and McMullen valleys, which are west of Phoenix.

• Desalination of seawater from the Gulf of California or elsewhere is not part

PHOENIX – High-cost desalinated brackish groundwater, Western Arizona groundwater and Colorado River water owned by farmers surfaced on Wednesday as the state’s next potential watering holes.

Central Arizona Project officials laid out these options as ways to provide more water in case CAP supplies run short and to serve population growth.

In a meeting with a host of water-interest leaders, including a Tucson Water official, the CAP proposed buying about a total of 300,000 acre-feet of additional water over the next 30 years.

That’s one-fifth of the CAP’s current supply of 1.5 million acre-feet, enough to provide about 4.5 million families a year’s worth of water. To carry the extra water, the CAP’s concrete canal, which carries the water uphill from the Colorado River to Tucson and Phoenix, would need upgrading at an estimated $100 million cost, officials said.

If the demand outstripped the supply at any point, the three-county agency that runs the water project would auction the water to the highest bidder, CAP officials said. In short, the proposal amounts to water marketing, a method long proposed by many water experts to ensure that as water becomes more scarce, it is sold on the open market so it achieves its economically highest and best use.

“We wanted a system to help people believe and understand there will be water in the future over the coming decades,” Tom McCann, an assistant CAP general manager, said about the water-purchase options.

The proposal comes at a time when concerns about future CAP shortages have reached an all-time high because of the recent drop in the level of Lake Mead, where most of the water comes from. The lake is at its lowest level in 73 years.

The idea of finding additional water supplies was thought of two years ago by CAP officials and users at a time when a bigger concern was finding more water to serve future growth. But now the shortage question is looming larger.

The prospect of what one observer called “sticker shock” from higher water costs compared with current CAP water costs made some predict that conservation-based technologies such as water harvesting, gray water and low-flow toilets will get more popular.

More than 50 representatives of cities, farms and development groups greeted the presentation by CAP official McCann with a flood of questions, some friendly and some skeptical.

Afterward, Tucson Water Chief Counsel Chris Avery said that while the proposal raises questions, city of Tucson officials are interested in obtaining additional supplies of CAP water despite the cost.

“This is our next renewable water supply. The costs are expected to be high, but it’s something we expected in any renewable supply. It’s something we have to do prudently,” Avery said.

David Modeer, the former Tucson Water director who now is CAP’s general manager, said the additional supplies’ costs aren’t known for sure today. But desalinated brackish groundwater could cost $500 to $600 an acre-foot, for instance. Buying water from farmers along the Colorado could cost up to $3,000 to $6,000 an acre-foot, he said.

“Modeer said he didn’t know exactly how much more the costly water would increase a utility customer’s monthly bill.

CAP water, for instance, costs users of the water about $120 per acre-foot. But he said the extra water would exponentially increase the cost to cities and other users.

“You’ll notice it. If you have an increase in costs of several million dollars to acquire it, for instance, it will raise water rates maybe in the 5 to 10 percent range,” Modeer said.

Val Little, director of the Water Conservation Alliance of Southern Arizona, said, “I think we’re about to have a big, big episode of sticker shock.”

Contact reporter Tony Davis at tdavis@azstarnet.com or 806-7746.

Copyright 2010 Arizona Daily Star.

Letter to the Editor The Troubling AZ Water Settlement & “Blue Gold”

Letter to the Editor
The Troubling AZ Water Settlement & “Blue Gold”

Published in the Navajo Times, Thursday, November 18, 2010

Wars of the future will be fought over water, as they are over oil today, as our Blue Gold, the source of human survival, enters the global marketplace. While here on the Navajo Nation the most precious of all resources, our water rights, are being waived and minimized, endangering the survival of our citizens and future generations as a separate indigenous People.

Forgotten People, Forgotten People allottees, and numerous other grassroots groups, continue to be troubled by the obvious deceptions, falsehoods, misrepresentations and intimidations that underlie the development and passage of the Northern AZ Indian Water Rights Settlement by the Navajo Nation Council. We believe that the People are not just getting deceptive information, but are getting no information on the true monetary value of our water.

Consider that other tribes are using some of their surplus water for capital development, e.g., the Gila River Indian Community recently leased some of their water for $70,000,000 to off-reservation users in order to do capital development on the Reservation. They received a lease value of $1,743 per acre foot per year. The ownership value (not the lease value) for our Navajo Indian Irrigation Project (NIIP) water was appraised by the BIA and internationally renowned farm appraising corporation at $15,000 per acre foot (or $ 4.2 billion dollars worth) in 2002.

The lease value of the more than 100,000 acre feet of NIIP water that went unused last year could be comparable to the Gila River Tribe. But, Attorney Stanley Pollack waived our rights in the San Juan Settlement to lease water downstream. With no knowledge of true water values being allowed by Pollack and his supporters, and relying on deceptive information, the Settlement debate is very far from being complete.

The Navajo Nation must give up its ‘Winter’s Doctrine’ rights, the highest reserved water rights. In 1997, Stanley Pollack told a public meeting in Santa Fe, documented by the University of Arizona, that Navajo is entitled to a claim “of not less than 5,000,000 (five million) acre-feet” of Colorado River basin water per year as a starting point for our water rights negotiations. He now discounts and ignores his previous statement. Several years later, Pollack was advised by national Indian law experts to assert Navajo rights by filing an immediate claim on the Colorado River for 10,000,000 (10 million) acre feet. He delayed another decade and still did not file for our larger rights.

Now the public is being duped into believing half the Navajo Nation can survive on 31,000 acre-feet of the Lower Colorado River water. That is less than 1% of what Mr. Pollack stated Navajo were entitled to at least claim in 1997, and less water than the 34,000 acre-feet the Navajo Generating Station uses each year.

The number of times the word “waiver” (including waive) appears in the collective settlement documents is 358. The word “forever” appears no less than 78 times in the settlement documents we have seen. It will certainly appear at least a few more times in the Congressional legislation and any other thus-far withheld or missing documents.

The court decree uses the term “finality.” The U.S. Supreme Court (in Arizona vs. California, 1983, responding to the tribes request for a modification) has made it plain that settlements, once agreed to, are intended as final. Any recent suggestion that things can be changed after the settlement is approved by the parties and the court (or that Navajo might be able to bring it back) is a ploy to gain approval of a deceptive process and agreement and move it away from Navajo to the other parties and the end of the process.

We believe the Settlement is a tragedy not only due to the minimizing of Navajo rights but the waiver of hundreds of millions of dollars in potential compensation for rights waived and a waiver for injury to water as we have seen in the Black Falls region where sources are still contaminated with arsenic and uranium, and where a US EPA Superfund contractor found, on November 9, 2010, that an unremediated abandoned mill located yards away from a Wetland by the Little Col. River, in a flood zone, maxed out his Geiger counter at over 1 million counts a minute. This mill is in close proximity to an un-remediated abandoned uranium pit with high walls and tailings piles.

Forgotten People appreciates the recent Resolution of the Navajo Nation Human Rights Commission NNHRCOCT-8-10 and their thoughtful perception regarding the human rights nature of Navajo water rights and the People’s right to free, prior and informed consent. It is we, the Navajo people, and our property that are ultimately protected by the Treaties, and we are among the persons who have sustained and continue to sustain outrages against us and injuries to our property rights, and in particular our water rights, our economic rights, and our rights to just compensation for waived and/or lost rights, and our futures at the hands of Mr. Pollack.

Forgotten People believes the President should VETO the Settlement Agreement and if the Navajo Nation Council holds a special session and decides to override the VETO then the President must, in the best interest of all the Navajo People, refuse to sign the agreement.

Respectfully,
Don Yellowman, President
Forgotten People

http://bsnorrell.blogspot.com/2010/11/navajos-troubling-water-settlement-blue.html