By KAY MATTHEWS
Three New Mexico legislators filed suit against the New Mexico State Engineer and Interstate Stream Commission on May 14 asking the Supreme Court to order a legislative review of the Navajo Water Rights Settlement. The three—Republicans Paul Bandy and Steve Neville of Aztec and Democrat Carl Trujillo of Nambe—claim that former Governor Bill Richardson pushed the settlement through his office in 2010 without getting authorization from the legislature to fund the state’s part of the total—$800 million—price tag.
La Jicarita has long covered the negotiations on the Navajo settlement, along with the Aamodt and Abeyta settlements. New Mexico’s congressional delegation introduced federal legislation on April 19, 2007 to implement the Navajo/San Juan River Water Rights Settlement. This settlement would allocate 55 percent of San Juan River water rights, or 600,000 acre feet per year (afy), to the Navajo Nation. The state of New Mexico is taking the position that the settlement provides a fair allocation of water to the Navajos while protecting existing non-Indian water users, including San Juan/Chama project contractors. The Navajo Nation and the San Juan/Chama contractors share water from the Navajo Reservoir supply, and the Bureau of Reclamation claims that with the settlement all parties will continue to be able to satisfy their needs without shortage. (The state continues to rely on hydrologic determinations that increased the amount of water in the basin available for use, from 508 million afy in 1983 to 606.2 million afy in 2007, which is partly based on the questionable assumption that because less water is evaporating from drought-shrunken reservoirs in the basin more water is actually available for diversion).
The settlement would provide 270,000 afy to the Navajo Indian Irrigation Project, begun over 40 years ago but never completed, and the Navajo-Gallup Supply Project, which will deliver water across hundreds of miles of desert to Navajo members who now have to haul water. In 2013, a state district court approved the settlement and Navajo Nation members who reside in New Mexico were awarded 130,000 afy of irrigation water in addition to the 195,400 afy they already use (this decision is being appealed by non-Indian irrigators).
The lawsuit filed on May 14 claims that the amount of water accorded the Navajos is more than six times what Albuquerque’s metro area diverts from the river and would serve approximately 40,000 Native Americans who live on the Navajo Nation in New Mexico.
The case is complicated by the fact that if the settlement does not become final, the Navajos could assert a Winters Doctrine claim on the San Juan River. The Winters Doctrine declares that when Congress reserved land for Indian reservations it also reserved water, both present and future, to fulfill the purpose of the reservation.
Over the years the settlement has generated controversy from Indians and non-Indians alike. The Citizens Progressive Alliance, based in Farmington, claimed it allows “special interests to promote speculation and unrestrained growth at the expense of the common good,” and that it allows the Navajos to market the water. A Navajo organization called Dooda Desert Rock objected to the Supply Project as resource exploitation, claiming it would put present and future generations at risk of a water crisis. Because the pipeline would serve only 43 of 110 Navajo Nation chapters, several chapters also opposed the project as an unfair allocation. Former Navajo Nation chairman Peter McDonald argued that the Indians should take their case back to court, under the Winters Doctrine, to better protect their senior water rights and take whatever water the tribe deems it needs. Former senator Pete Domenici chimed in saying that “legislation authorizing the Navajo settlement will be very difficult to fund given the huge budget deficit confronting the nation.”
In 2007 I attended a meeting at the legislature where the Office of the State Engineer (OSE) briefed the Water and Natural Resources Committee on the details of the negotiations of these Indian adjudications and the state’s fiduciary obligations to help fund their implementation. Discussion of the terms of the Navajo settlement alone took up all the committee’s allotted time. It was obvious that the legislators had not been previously briefed and almost all of them expressed their surprise—and consternation—at the amount of water the Navajo Nation was entitled to and the amount of money the settlement would entail, not just at the state level but at the federal level as well. They also had a hard time wrapping their heads around two other big issues: 1) The settlement does not prevent the Navajo Nation from exporting its water to other states, and although it would have to get a permit from New Mexico to do so, if it were denied it would undoubtedly go to court over the issue; and 2) The non-Indian water rights holders in the San Juan Basin have not been included in the negotiated settlement, and before a final decree is issued in the San Juan adjudication the case will have to come back to state district court to adjudicate the rights of these 8,000 people on community ditches.
Attorney Victor Marshall, who represents the three legislators who filed the lawsuit, was at the earlier legislative meeting as a representative of the San Juan Agricultural Water Users opposed to the Navajo settlement. As I wrote previously in La Jicarita, the members of the OSE who were there to present the terms of the settlement to the legislators treated Marshall rudely, interrupting him and accusing him of ignorance and prejudice when he encouraged the legislators to ask their common sense questions, that water policy needs to be determined legislatively. Just before the meeting ended Senator Phil Griego asked the OSE, “Does the Legislature have any authority to change the terms of these settlements?” The OSE, after some hemming and hawing, responded that the will of the legislature is heard by providing or not providing its share of the funding to implement these settlements.
The committee adjourned without even hearing the details of the Aamodt and Abeyta settlements. In light of this new lawsuit, one could say they adjourned on the Navajo settlement as well—until 2014, that is.