“WATER IS LIFE” – “WATER IS SACRED”

“WATER IS LIFE” FORUM SPONSORED BY INTER –TRIBAL COALITION Hopi Veterans’ Memorial Center

November 12, 2011

Colorado River

NORTHEASTERN ARIZONA INDIAN WATER RIGHTS SETTLEMENT AGREEMENT

• What is Water Rights?

• What is the Winters’ Doctrine?

• History of Little Colorado River General Stream

Adjudication

• What is the offer “on the Table”?

• What does this mean to Hopi and Navajo?

• What can we do about this?

Our Water Situation Today

Navajo Aquifer lies under our Reservations (90% is 0ver 10,000 to 35,000 yrs old)

Navajo Aquifer is our primary source for drinking water

Our sacred springs have dried up or are drying up

Our drinking water supply is contaminated and limited

Peabody uses Navajo Aquifer for mining coal

3 Dried Sacred Spring

Water Rights Case History

Two General Stream Adjudications in Arizona

Gila & Little Colorado River

Arizona v. California - 1963

LCR General Stream Adjudication (Phelps Dodge Case)

Several other cases filed by Indian tribes including Hopi and Navajo

4 Little Colorado River

Proposed Water Rights Agreement (Agreement-in-Principle – March 28, 2008)

Water Rights negotiations have been going for several years (over 30 years)

Involves about 33 parties

Covers the Lower Basin on Colorado River

Covers Little Colorado River

To Quantify the Amount of water users are entitled to

Acre Feet of Water is about 326,000 gallons of water Grand Falls - Little Colorado River

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Proposed Water Rights Agreement (Who are at the table?)

Negotiating parties include:

Arizona Public Service

Land Owners in the Little Colorado River Watershed

Industrial Users

Cities like Flagstaff, Winslow

Navajo Nation

Hopi Tribe

Bureau of Reclamation

Department of Interior

Central Arizona Project

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Proposed Water Rights Agreement (Agreement-in-Principle)

Covers Lower Basin of Colorado River starting at Lee Ferry downstream and including:

Reservoirs

All tributaries to the Lower Colorado River (except AZ)

All underground water hydrologically connected to Lower Colorado River

All underground water hydrologically connected to tributaries (except AZ & NM)

Lower Basin of Colorado River

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Proposed Water Rights Agreement (Agreement-in-Principle)

Covers Little Colorado River

Reservoirs

All tributaries

All underground water

Litigation in Arizona Superior Court for Apache County “General Adjudication of All Rights to Use Water in the Little Colorado River System and Source (CIV No. 6417)

Only Zuni Pueblo settled for LCR Water Rights so far

Little Colorado River

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From 1978 to 2007 Congress ratified 20 Indian Water Rights Settlements into Law including:

Ak-Chin Indian Community (1978)

Tohono O’Odham – San Xavier (1982)

Salt River Pima Maricopa ((1988)

Fort McDowell (1990)

Yavapai Prescott Indian Tribe (1993)

Gila River Indian Community – Tohono O’Odham (2004)

White Mountain Apache (2010)

Several Pending Including:

Navajo Nation (Involved in 4 settlement discussions)

Hopi Tribe

Settled and Pending Water Rights Negotiations

What is a Water Right?

A group of rights designed to protect the use and enjoyment of water that travels in streams, rivers, lakes, and ponds, gathers on the surface of the earth, or collects underground

Rights come from ownership of land bordering the banks of a watercourse or from a person’s actual use of a watercourse

Treated like rights to property (can be conveyed, mortgaged)

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What is Winters Doctrine?

“Winters vs. United States” - January 6, 1908 Decision.

Fort Belknap Indian Reservation – Milk River of Montana

Decision: Court found in favor of the United States affirming two lower court decisions that Indian tribes held implied water rights through their agreement with the United States that took priority over latter nearby settlers

“First in Time – First in Right” or “Prior Appropriations”

Argument: When Congress established the Fort Belknap Indian Reservation, it implicitly intended to reserve enough water to sustain the tribe (treaties, executive orders, etc.)

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Federal Reserved Water Rights may remain unused for many years

States cannot prevent the eventual exercise of these federal property rights in water

Reserved Water Rights are quantified in several ways

Adjudication

Practicably Irrigable Acreage (PIA) Standard (Arizona v. California)

2001 Arizona Supreme Court -Arizona tribes have prior rights and not held to PIA standard

What is Winters Doctrine?

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Prior Appropriations

Water belongs to first user who appropriates it for beneficial use

User (appropriator) is guaranteed the right to continue to take water from that source as long as the water continues to be put to beneficial use

Use of water in western states is governed by Doctrine of Prior Appropriation known as “Colorado Doctrine”

No one may own the water in a stream, all persons, corporations, municipalities have a right to use water for beneficial purposes

“First in Time – First in Right”

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What will this settlement give tribes?

Quantified water rights

A proposed pipeline to deliver surface water to Hopi and Navajo communities from the Colorado River

Tribes secure and use Water Rights in number of ways

Domestic Uses, Industrial Uses, Economic Development, Water Banking, Water Marketing, Water Leasing, Water Exchanges.

No consideration for Hopi’s rights under Treaty of Guadalupe Hildago

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What’s in Agreement-in-Principle?

Western Navajo Pipeline

Leupp-Dilkon Project

Ganado Project

Colorado River Water

Little Colorado River Water

Gila River Water

Rights to other water uses along the Colorado River and Little Colorado

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Agreement-in-Principle

Tribes and other users must first agree to Agreement-in-Principle

Must agree to “Waiver and Release of Claims”

Once agreements are reached, matter moves forward for Congressional action (legislative bill)

Funding considerations including high cost to build & maintain pipeline. Kyl instructed negotiators to lower cost of pipeline

Senator Kyl has stated he will not carry the bill to fund the pipeline unless tribes come into an agreement on the lawsuit (s)

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To approve the Water Rights Settlement Agreement, Hopi and Navajo must waive aboriginal Water Rights

Proposed Agreement contains a provision for “waiver and release of claims for water rights, injury to water rights, and injury to water quality from time immemorial and thereafter, forever”…

Waiver of Winters Rights

Cannot File Future Claims for Damages

Must Waive Water Rights

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Injury to Water Rights means – “Interference with, diminution of, or deprivation of, Water Rights under Federal, State or other law”

Injury to Water Quality means – “Any diminution or degradation of the quality of Water due to a change in the salinity or concentration of naturally occurring chemical constituents of Water and any effect of such change where the changes in salinity or concentration and the effects of such changes are due to the Withdrawal, Diversion or Use of Water”

Injury to Water Right & Water Quality

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Gives away, waives, does not protect tribal Winters Rights

Limits tribes from fully using Water Rights, e.g. cannot build new reservoirs for irrigation

Encourages tribes to give up priority Water Rights to other interests with less priority

Allows non-Indian users to pump unlimited amounts of Coconino Aquifer (C-Aquifer) 18 miles of Navajo boundary

Allows non-Indian users as much “underground flow” as they want without regard for impact on aquifers

Tribal Member Concerns

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Does not allow tribes to challenge non-Indian use of sub-flow waters

High cost of building and maintaining the Western Navajo Pipeline will be prohibitive – will not be built

Allows certain rights to Peabody Coal

Flagstaff’s use water right from Red Gap Ranch

Water allocation during times of drought (Lower Basin Shortages) and tribal priority rights

Tribal Member Concerns

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Waiver and release of claims will prevent tribes from filing damage claims against the parties, including Peabody Coal, for: Damage to N-Aquifer

No resolution for springs drying up

No resolution for limited water supply

No resolution for water quality

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Tribal Member Concerns

What can we do about the Proposed Settlement Agreement?

Impose on Hopi Tribal Council to hold a Referendum so Hopi Voters can decide

Become educated

Express our views and provide testimony to our tribal councils

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Question & Answer Session

Discussion

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Thank you for your time!