CHAPTER 12 THE NAVAJO NATION NEW MEXICO WATER RIGHTS SETTLEMENT AGREEMENT--HOW IT FITS INTO INTERSTATE COMPACT OBLIGATIONS AND AFFECT ON OTHER WATER USERS IN THE SAN JUAN RIVER AND COLORADO RIVER BASINS

• Jurisdiction: United States

Natural Resources Development on Indian Lands
(Mar 2011)
CHAPTER 12
THE NAVAJO NATION NEW MEXICO WATER RIGHTS SETTLEMENT AGREEMENT--HOW IT FITS INTO INTERSTATE COMPACT OBLIGATIONS AND AFFECT ON OTHER WATER USERS IN THE SAN JUAN RIVER AND COLORADO RIVER BASINS
Stanley M. Pollack
Navajo Nation Department of Justice
Window Rock, Arizona

STANLEY M. POLLACK is the lead water rights attorney for the Navajo Nation. Since 1985, he has represented the Navajo Nation in all matters affecting the tribe's water resources, including five general stream adjudications, and in other water rights matters in Arizona, New Mexico, and Utah. He negotiated the Navajo Nation San Juan River in New Mexico Water Rights Settlement recently approved by Congress and is involved in Colorado River negotiations in the Lower Basin in Arizona and the Upper Basin in Utah. Mr. Pollack has lectured extensively on Indian Reserved Rights, Colorado River issues, and the impact of the Endangered Species Act on federal reserved water rights.

"New Mexico supports this [settlement] legislation because it is good for New Mexico, the Navajo Nation and the Colorado River basin states."

-- Statement of John R. D'Antonio, Jr., New Mexico State Engineer in support of the Northwestern New Mexico Rural Water Projects Act, S. 1171. S. Hrg. 110-148, June 27, 2007

I. BACKGROUND

A. Geographical Setting. The Navajo Nation encompasses an area in excess of 14 million acres, located almost entirely within the Colorado River Basin, in both the Upper and Lower Basins, within the states of Arizona, New Mexico and Utah.

B. Potential Claims. The potential water rights claims of the Navajo Nation in the Colorado River Basin have been the subject of considerable speculation:

1. "Staggering." William Douglas Back and Jeffrey S. Taylor, Navajo Water Rights: Pulling the Plug on the Colorado River?, 20 NATURAL RESOURCES JOURNAL 71, 74 (1980) ("If Navajo Winters rights ever are adjudicated, the potential award is staggering.")

2. "Hypothetical Shock." Allen V. Kneese and Gilbert Bonem, Hypothetical Shocks to Water Allocation Institutions in the Colorado Basin, NEW COURSES FOR THE COLORADO RIVER: MAJOR ISSUES FOR THE NEXT CENTURY at 97 (Weatherford & Brown, eds. 1986) ("Some outside observers of the matter believe that the suit, when and if it is file, will be for five million acre-feet or more.")

3. "Compact Busting." Northcutt Ely, chief counsel for California during congressional hearings on the Colorado River Storage Project in 1955, opined on the question of whether Indian rights are inside or outside the provisions of the compact apportionments: 'If inside, and as large as claimed, the Compact is splitting at the seams, and if outside, busted.'" See Back and Taylor at 90.

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C. State of New Mexico Apportionment. New Mexico's apportionment is 11.25% of the water available to the Upper Colorado River Basin. UCRBC Art. III(a)(2). Based on the Secretary's 2007 Hydrologic Determination, New Mexico's water supply is calculated to be at least 642,400 acre-feet per year. Hydrologic Determination 2007: Water Availability from Navajo Reservoir and the Upper Colorado River Basin for Use in New Mexico, April 2007.

The potential Navajo Nation water rights claims could exceed New Mexico's apportionment. See: Stanley M. Pollack, Integrated Water Resources Management in the San Juan River Basin - The Navajo Perspective, Proceedings of the 41st Annual New Mexico Water Conference, New Mexico Water Resources Institute, February 1997; Judith E. Jacobsen, The Navajo Indian Irrigation Project and Quantification of Navajo Winters Rights, 32 NATURAL RESOURCES JOURNAL 825 (1992).

.D. The Navajo Nation is not Bound by the Colorado River Compact of 1922 or the Upper Colorado River Basin Compact of 1948

1. The compacts were not intended to apply to tribal rights. Both compacts include similar disclaimers with respect to the rights of Indian nations -- "Nothing in this compact shall be construed as affecting the obligations of the United States of America to Indian tribes." Colorado River Compact, Article VII; Upper Colorado River Basin Compact of, Article XIX (a).

The compacts were not intended to affect prior perfected rights to the use of waters of the Colorado River System -- "Present perfected rights to the beneficial use of waters of the Colorado River System are unimpaired by this compact." Colorado River Compact, Article VIII. This provision was extended to the Upper Basin Compact -- "It is recognized that the Colorado River Compact is in full force and effect and all of the provisions hereof are subject thereto." Article 1(b) of the Upper Colorado River Basin Compact; Article 1(b).

The United States Supreme Court recognized the rights of the Colorado River tribes as "present perfected rights" since their reservations were created prior to June 25, 1929, the effective date of the Boulder Canyon Project Act. Arizona v. California 373 U.S. 546, 600 (1963) (Arizona v. California I). In the case of the Navajo Nation, the original Navajo Reservation was created by the Treaty Between the United States of America and the Navajo Tribe of Indians, concluded June 1, 1868, 15 Stat. 667. The Navajo Reservation was eventually extended westward to the Colorado River by the Executive Order of January 8, 1900. Thus, the water rights of the Navajo Nation to the use of waters of the Colorado River System should be treated as prior perfected rights and not affected by operation of the compacts.

E. Settlement Realities

1. Uncertainty of Litigation. Courts have become increasingly restrictive of the scope of the Winters doctrine and hostile to the rights of tribes. See generally Andrew C. Mergen & Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States. 68 683 (1997); David H. Getches, Conquering the Cultural Frontier: The New Subjectivisim of the Supreme Court in Indian Law, 84 CALIF. L. REV. 1573 (1996).

2. Litigation Limitations. A water right does not necessarily include the right to the capital investment necessary to put the water to beneficial use or to realize the economic benefit of an entitlement. See Monroe E. Price & Gary D. Weatherford, Indian Water Rights in Theory and Practice: Navajo Experience in the Colorado River Basin, 40 97 (1976).

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3. Institutional Barriers to Water Development. Tribal water development is difficult without non-Indian support. Any effort by tribes to obtain the federal funds necessary to put water to "actual" use will necessarily be subject to consideration by Congress of the impact on existing prior appropriators and other non-Indian constituencies. See John B. Weldon, Jr., Non-Indian Water User's Goals: More is Better, All is Best in Water in the New West 79, 83 (1993)("[M]any non-Indian...