Note: This article is a sidebar to this issue's feature story, "Indian Power."
Just past the information desk, beyond the front doors of the Glen Canyon Dam Visitor Center, there hangs a Norman Rockwell painting commissioned by the U.S. Bureau of Reclamation in the 1960s. When Rockwell arrived at the Colorado River just outside Page, Ariz., to paint the dam, he reportedly groused, “That is a lovely thing, but I don’t paint things — I paint people.” Bureau officials obliged by rounding up a Navajo family to sit in the foreground while Rockwell went to work.
The Navajo may have made it into the painting, but they’ve long been relegated to the sidelines of the river’s politics, watching as the Colorado’s water has been siphoned off to feed farms and cities in Arizona, California and Nevada. That has been a source of simmering resentment on the reservation, where irrigation water is scarce and 40 percent of the people have to haul water to their homes by truck.
On March 14, the Navajo Nation filed a lawsuit in federal court, claiming that the Department of the Interior violated its trust responsibility to the tribe by not securing a firm water right for the 17 million-acre reservation. The suit calls for a halt to any allocations of unapportioned water in the Lower Colorado River Basin — including California, Arizona and Nevada — until the secretary of the Interior decides how much of the river’s water belongs to the Navajos.
“I think (the lawsuit) is a shot across the bow of the non-Indian water users in the Colorado River Basin,” says University of Colorado water-law expert David Getches, “to let them know that this is a significant claim that has to be reckoned with.”
But that shot across the bow could blow sky-high delicate negotiations over the Colorado River. The lawsuit comes at a crucial time, when California water managers are negotiating with federal officials to restore the so-called “4.4 Plan,” giving the state access to “surplus” flows in the Colorado (HCN, 1/20/03: California’s water binge skids to a halt).
“It’s a serious deal,” says Dennis Underwood, the vice president of Colorado River Resources for the Metropolitan Water District, which serves almost 17 million people in Southern California. “We’re doing this 4.4 Plan, and I don’t think there’s anything left (that other water users) can throw at us.”
How much water?
No one knows how big the Navajo claim will be, but the effort to define it could get ugly. “People have known for years that the Navajos have a potentially enormous claim on the Colorado,” says Getches. “The fact that they haven’t had immediate needs for it has allowed the rest of the basin to ignore it and develop in spite of it.”
Traditionally, Indian water rights are based on a standard called “practicably irrigable acreage” or PIA, which can lead to generous water rights for tribes. In the 1960s, the Colorado River Indian Reservation, which lies along the river near Parker, Ariz., won rights to 717,000 acre-feet of river’s water — enough to drown the entire reservation under more than two-and-a-half feet of water.
The Navajo Nation is more than 63 times as large. Liberal estimates indicate that, based on the PIA standard, Navajos could claim several million acre-feet — potentially exceeding the state of Arizona’s entire 2.8 million acre-foot share of the Colorado, much of which now feeds the suburbs of Phoenix and Tucson via the Central Arizona Project aqueduct.
But tribal government insiders concede that a legitimate claim is likely to be significantly more modest. “If you have good land, a good climate and you don’t have to pump water a long ways, that makes for a good PIA claim,” says Louis Denetsosie, the Navajo Nation’s new attorney general. “We have to pump the water a long ways up the side of a canyon wall.”
So the Navajos are throwing their hopes behind a November 2001 Arizona Supreme Court ruling that PIA is not the only way to quantify water rights. The ruling said that a wide range of variables should be considered, not just agriculture. That means residential, commercial and industrial needs, which could potentially include water-hungry power plants.
Whether the argument will hold up in federal court is a big question. But the lawsuit may give the tribe leverage to negotiate an out-of-court settlement with the federal government. Under such settlements, tribes typically give up a portion of their claim in return for federal money to build the pumps and pipelines needed to actually put the water to use. And in Indian country, where money for big water projects is scarce, it’s often worth settling for a smaller water right, if it means getting real “wet water,” rather than just a “paper water” right.
“If all you get is paper at the end of the day,” says Navajo Nation water attorney Stanley Pollack, “you still aren’t able to put that water to use.”
Ripples across the Southwest
The federal government is considering its response to the lawsuit. While neither the Interior Department nor the Department of Justice would comment, an Interior spokesman did confirm that Interior Secretary Gale Norton met with Navajo Nation representatives to discuss the case on March 4, just prior to the suit’s filing.
If the battle plays out in court, it’s sure to bring a legal dog-pile of the major water agencies in the Lower Colorado River Basin, eager to defend their rights.
The lawsuit most immediately threatens negotiations that have been ongoing since New Year’s Eve, when Secretary Norton slashed California’s access to surplus Colorado River water by 15 percent. The state says it needs access to the “surplus” water — which other states have rights to, but don’t yet need — while it cobbles together substitute supplies of water over the next 15 years.
“The surplus water (provides) a soft landing,” says the Met’s Underwood. “If you don’t have that, then you have an immediate problem.”
Regardless of the ultimate size of the Navajo claim, it would come off the top of Arizona’s allotment of Colorado River water, since tribal rights are included in the allocation of the state that surrounds their reservation. Because the Navajo water right could be pinned to the reservation’s creation in 1868, it could trump all other users in the state. “The water would come from the junior right holders (within Arizona), which is primarily the Central Arizona Project,” says Herb Guenther, the director of Arizona’s Department of Water Resources.
A multimillion acre-foot mega-claim by Navajo could threaten water for the nearly 4.5 million Arizonans who depend on the Central Arizona Project — which funnels about half of Arizona’s Colorado River allocation deep into the heart of the state. In a more realistic scenario, a smaller claim would first hit the Project’s agricultural users with “junior” water rights.
Ironically, it could also throw a wrench into another pending Indian water settlement. Under that arrangement, the federal government would buy junior water rights from farmers and turn them over to the Gila River Indian Community and the Tohono O’odham tribe. But the Navajo claim could pre-empt the water earmarked for the deal. Says Sid Wilson, the Central Arizona Project’s general manager, “(A Navajo claim) puts a big question mark over all of that.”