Northeastern Ariz. water rights settlement ‘too expensive’ By Kathy Helms, Dine Bureau, Gallup Independent 5/2/2011: WINDOW ROCK – The proposed $800 million Northeastern Arizona Indian Water Rights Settlement Agreement approved by the Navajo Nation last November is “too expensive” and will not be introduced to Congress in its current form, according to court documents. An April 19 report from Arizona Superior Court Special Master George A. Schade Jr., states that parties to the settlement were informed March 24 by U.S. Sen. Jon Kyl, R-Ariz., that the proposed settlement is too expensive. Navajo Nation water rights attorney Stanley Pollack stated in the report that Kyl is unwilling to introduce legislation to authorize the settlement in its current form given the current political and fiscal climate in Washington.
However, Kyl encouraged the parties to reach new settlement language by June so that he might submit legislation to Congress prior to his retirement in 2012 at the end of the current Congress. Pollack informed Schade that the parties were scheduled to meet with Kyl last week in Phoenix to discuss possible terms. Since being advised that the proposed settlement is too expensive, the negotiating parties have been meeting to revise the terms and make it less costly.
The Navajo Nation’s San Juan River water rights settlement also had an estimated price tag of $800 million.
Pollack noted that terms approved Nov. 4, 2010, by the 21st Navajo Nation Council for the Northeastern Arizona settlement are no longer up for consideration because the settlement does not have a chance for success in Congress. No action was taken by the Hopi Tribe, as the document had not gone out to the villages for consideration by the Hopi people.
Under the proposed agreement – which had grassroots Navajos marching on Window Rock in protest – the Navajo Nation would receive 31,000 acre-feet of “fourth priority” water per year, while Navajo Generating Station would receive 34,100 acre-feet per year of Upper Basin water for its continued operation.
Any new settlement terms will require approval by the 22nd Navajo Nation Council and the 32 other parties to the settlement. Pollack reported that he does not anticipate that the terms will be approved by the time federal legislation is introduced.
When contacted Friday, Pollack said he was “hamstrung” from discussing the matter by confidentiality orders, however, he did say, “The Arizona discussions are not dead.”
The settlement springs from the Little Colorado River adjudication which has been ongoing since March 14, 2003, when the Navajo Nation took legal action challenging the Secretary of the Interior’s operation of various management programs in the Lower Basin of the Colorado River. Numerous parties have since intervened, among them the state of Arizona, Central Arizona Water Conservation District, Salt River Project, Arizona Power Authority, the Metropolitan Water District of Southern California, and the state of Nevada.
The Navajo Nation and the United States stipulated to granting all motions to intervene and to a two-year stay of the litigation so the Interior could appoint an Indian water rights settlement team and pursue efforts to resolve the Nation’s water rights claims through negotiation and settlement.
On April 12, parties involved in the case requested a four-month extension of stay until Aug. 15 in the federal court case, the Navajo Nation v. United States Department of the Interior, et al., and U.S. District Court Judge Paul Rosenblatt granted the stay April 19. The court has repeatedly granted extensions of the original stay issued in October 2004.
Water from the Little Colorado River system could affect the magnitude of the Nation’s claim to water from the main stem Colorado River. In 2005, the parties acknowledged that resources within the Little Colorado River Basin are not sufficient to secure a permanent homeland for the Navajo people. The “Kyl Report” and other studies have reached the conclusion that there would be a need for some imported water supplies from the Colorado River.
During November’s protest in Window Rock, Jeneda Benally said the Navajo people were opposed to having their water rights “sold out underneath us, because our future generations … are going to be affected by this decision, and 31,000 acre-feet of water is not enough. We need to be able to sustain ourselves as a people, and for that we need water. Water is life.”
Many of the grassroots people also were upset that the language called for waiving all “past, present and future claims for water rights arising from time immemorial” that are based upon aboriginal occupancy. Navajo also would waive any claims for injury to water quality – another concern of residents who have been impacted by past coal and uranium mining.