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Opinions Split on Navajo and Hopi Water Rights as Decision Time Nears

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UPDATED JUNE 22, 2012 at 2:00 p.m. with comments from Navajo Nation Attorney General Harrison Tsosie and Navajo Nation Attorney Stanley Pollack.

As decision time looms for a controversial Little Colorado River water settlement, Navajo and Hopi tribal governments are looking increasingly likely to support the settlement – and oppose its companion federal legislation, SB 2109.

But grassroots activists who are opposed to the settlement say their tribal leaders are mistaken. The Little Colorado River Water Rights Settlement and SB 2109 are essentially one and the same, they say.

“If you have a problem with the various waivers, if you have a problem including the Navajo Generating Station and Peabody [Coal] in the settlement, then you should still be against the settlement itself,” said Jihan Gearon, executive director of the grassroots Black Mesa Water Coalition.

The Little Colorado River Water Rights Settlement would establish water rights for the Little Colorado River, a tributary of the Colorado that runs across the southwestern border of the Navajo Nation – and near the Hopi Reservation – in northeastern Arizona. The settlement allows the Navajo Nation to use whatever water it can get from the Little Colorado River and the C-aquifer, which underlies the Navajo Nation in parts of Arizona and New Mexico. Hopi Tribal Chairman LeRoy Shingoitewa and Navajo Nation President Ben Shelly both say the settlement is a boon for future generations, securing a water supply they’d be unlikely to gain in protracted court battles that are the settlement’s alternative. And both men are eager for the three water delivery projects outlined in the settlement, which would deliver drinking water to rural communities on both reservations that now lack it.

“Communities and businesses will have the opportunity to grow and prosper without being held back by limited water supplies,” Shelly wrote in an impassioned recent statement on his Facebook page. “As sacred as water is to our belief system, water has the power to create a Navajo economic life that would create jobs so Navajo people won’t have to seek employment off the reservation.”

But for a cohesive and vocal group of anti-settlement activists, the devil is in the details. Thirty stakeholders, including industry and the state of Arizona, had to agree on the settlement – so there are terms to satisfy all of them. One especially distasteful tradeoff, as far as settlement opponents are concerned, is a provision that extends the water supply for the Navajo Generating Station near Page, Arizona, for another 34 years. Another dictates that the Navajo Nation can never sue for past or future water withdrawals or pollution from decades of coal mining on Navajo land, even though many locals say Peabody Coal and the Navajo Generating Station have already damaged the Navajo Aquifer underneath the reservation.

Navajo Nation Attorney General Harrison Tsosie issued a response to those pervasive concerns on June 22, saying settlement opponents have twisted the document’s words:

“The settlement does not require renewal of the Navajo Generating Station lease, and anybody saying otherwise is spreading misinformation,” he said. “The agreement absolutely allows the Navajo Nation to sue for pollution or past, present and future environmental impacts to Navajo water supplies. Once again, opponents of the settlement are spreading falsehoods to distract from what matters: that failure to approve this settlement means we risk losing water that should rightfully be ours.”

Indeed, the settlement isn’t contingent on the Navajo Generating Station getting its water. But there is a tradeoff – if the Navajo Generating Station doesn’t get its water, then the Navajo Nation won’t get Colorado River water for the planned Navajo-Gallup water supply project that would supply water to dry communities near Window Rock.

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On the pollution issue, Navajo Nation attorney Stanley Pollack has pointed out that only specific types of pollution would be protected from lawsuits: “A change in salinity or concentration of naturally occurring constituents of water. If somebody is discharging toxins, we haven’t waived anything. The only thing that is waived here is damage to water quality caused by withdrawal of the water itself.” Activists have contended that’s exactly the sort of damage that has occurred, and needs to be actionable.

The Navajo Tribal Council is grappling with two tribal bills. One, introduced by Navajo Nation Speaker Johnny Naize on June 9, proposes that the council support the settlement. That legislation is going through committee this week. But a second piece of legislation, introduced by council delegate Katherine Benally, opposes SB 2109. During a preliminary vote in a full-council committee, 14 council delegates approved that motion, and none were opposed. The council will take a final vote on both bills in a special session on June 27, said Jerome Clark, director of communications for the Navajo Nation Office of the Speaker. He added that, “Hypothetically, the council could vote to oppose the bill but pass the settlement.”

The Hopi Tribe is in a similar position, Shingoitewa said.

“Personally, I believe that the water settlement is something that is going to be critical for the future, especially with water being such an important commodity,” he said, adding that the tribe has already approved the settlement in principal. Just the same, the Hopi tribal council voiced its opposition to SB 2109 on June 15.

“I think both tribes are concerned about the present language that was put in there, about the Navajo Generating Station and Peabody Coal’s use of water,” Shingoitewa explained. “Of course there is other language in there we don’t feel is very clear.”

He believes the settlement is sound, but that SB 2109 needs to be cleaned up – and babysat – if and when it makes its way through Congress.

The Black Mesa Water Coalition’s Gearon said she’s a bit baffled about the distinction being made by the tribal leaders: “I don’t know where they’re getting this, but they’re seeing the act and the agreement as two different things,” she said. “All of the reasons the [Navajo] council listed that they disagree with the act, those same reasons apply to the settlement agreement, and I don’t know why they don’t realize that … I suspect that maybe our council members themselves haven’t had time to read the settlement.”

President Shelly has also been trying to educate the council members, and convened an all-day meeting on June 16, with two days’ notice, to take council members through a paragraph-by-paragraph analysis of the settlement. According to a press release issued on June 18, only two of 24 delegates attended. A third sent a representative.

Navajo Speaker Naize issued a press release on June 15 announcing four more public meetings to discuss the settlement. Three remain: June 21 in Pinon, June 25 in Dilkon and June 26 in Leupp. He also announced that he’ll be placing comment boxes near community areas, such as flea markets. All comments are due before the scheduled decision day on June 27.

The final round of meetings comes a little late, says Gearon. According to her count, 22 Navajo chapters have issued resolutions opposing the settlement, and the number is growing.

“We feel like the Navajo Nation people have made their decision already,” she said. “The majority of Navajo people are on the same page, of no.”