Navajo Sue for River Water

The Navajo Nation has joined the long list of Southwesterners thirsting for the waters of the Colorado River, filing a lawsuit that is sending a mighty ripple downstream to California and neighboring states.

The tribe contends that the U.S. Department of the Interior has ignored its water rights while divvying up the flow in the Lower Colorado River Basin and has thus breached its trust obligations to the Navajo.

Several water rights experts predicted the suit would be a difficult one for the Navajo to pursue. And water litigation is notorious for taking decades to resolve. But the March filing has drawn attention in the Southwest’s water world. States and water agencies are moving to intervene.

“I think they would have a hard time advancing their claim -- anything of real substance,” said Dennis Underwood, a vice president of the Metropolitan Water District of Southern California who handles Colorado River issues for the giant agency. “But funny things can happen in court. It is challenging things that are of immediate interest to the lower basin states.”

In particular, the suit asks the courts to set aside guidelines dealing with surplus Colorado flows used by California, Arizona and Nevada, questioning a water-banking program for Arizona and Nevada that Metropolitan wants to get involved in and challenging guidelines for repaying inadvertent overdrafts of the river by Colorado users.

“It has the potential of having a profound impact on the politics of the river,” said Robert Glennon, a University of Arizona law professor who writes on water issues.

Growth in the Southwest is making every drop of the Colorado desirable, spurring water negotiations and settlements that are leaving the Navajo feeling like wallflowers. Their suit, filed this spring, adds yet another tangle to the knot of demands tightening around the 1,400-mile-long river.

Colorado water sprinkles the lawns of Arizona subdivisions, fills the irrigation ditches of desert farms in Southern California and sustains the artificial lakes of Las Vegas. But it doesn’t do anything for the Navajo Reservation sprawling to the east of the river above Lake Mead.

That has long bothered the Navajo, many of whom don’t have running water in their homes. They have tapped the Colorado’s tributaries, but have never gotten very far with claims to its main branch in the lower basin.

The secretary of the Interior “is doling out resources to everyone other than the Navajo Nation.... We seem to be the last in line,” said Stanley Pollack, an attorney with the Navajo Nation Department of Justice. “We are prepared to sit down and have some meaningful discussions with them. We’ve been trying for years, but they’ve been ignoring us.”

The Interior Department, which has another month to file its response to the suit, would not comment on the matter.

The suit is not a claim for a fixed amount of water. Basically, it is an attempt to force the federal government to determine what the tribe’s lower basin Colorado rights are.

Tribe Has Early Dibs

That they should get any of it springs from a federal doctrine that, when the federal government sets aside land for a specific purpose, such as a park or Indian reservation, water goes with it, as long as the water has not already been apportioned. The Navajo Reservation lands, which spread across 13 million acres in Arizona, New Mexico and Utah, were established in 1868, so the tribe has very early dibs.

But it is not just a matter of first come, first served. Indian water rights have traditionally been shaped by agricultural use -- how much land realistically can be irrigated and how much water will it take to do it? That is where the Navajo run into obstacles. The river near the reservation in the lower basin cuts through the Grand Canyon, meaning it would have to be pumped up hundreds of feet to tribal land.

“Can the Navajo show a viable farming use of water in Arizona when they would have to lift the water out of Marble Canyon? The answer is no,” said Bill Swan, a former Interior Department attorney who now represents the Imperial Irrigation District, California’s largest user of Colorado River water. “In my experience, when their right is quantified, it’s probably not going to be huge.”

Still, an Arizona Supreme Court ruling a couple of years ago opened the door to another standard: that tribes were entitled to water necessary to maintain a homeland, which could include industrial or residential use. “We’re not talking about irrigation here, but we do have a large reservation with a large tribal population,” Pollack said. “We need to get water out of the main stem” of the Colorado.

Whatever river water the tribe gets would come from Arizona’s basic allocation of 2.8 million acre-feet. (An acre-foot equals the amount of water annually used by two typical Southern California households.) Recently, the state has used all of its allocation, either directly or in storage, so Navajo water would likely come at someone else’s expense.

Volatile Negotiations

“I think it was initially filed as a means of getting attention. My sense is it did that,” said Herbert Guenther, director of the Arizona Department of Water Resources. In a motion to intervene in the case, his department says the suit could curtail or freeze river management programs important not only to Arizona but to other lower basin states.

Peter Von Haam, a deputy California attorney general, said the state is assessing the Navajo suit. “At this point, there are more questions than answers,” he said, adding that he did not believe a Navajo claim would affect California’s basic 4.4 million-acre-foot allocation of Colorado water.

But California would certainly feel a pinch if guidelines dealing with the use of surplus river flows were scuttled. The state and several water agencies, including Metropolitan and Imperial, are in volatile negotiations to secure surplus water for the next 15 years while California weans itself of the flows now sought by other states.

Metropolitan has questioned whether much of a surplus will be available, given the Southwest’s ongoing drought. But Underwood said it is not to be dismissed. “We do care about this surplus. It still can be of value to us,” he said. “The only point we’ve made is that its value has diminished.”