Water attorney: We're not giving anything away
By Alistair Mountz
Special to the Times
PIÑON, Ariz, April 26, 2012
(Special to the Times - Donovan Quintero)
Pollack explains the intricate legal details of the agreement and addresses the most common arguments against it.
Navajo Times: Let's start right away with what you think the biggest misconception the public has about the settlement agreement.
Pollack: That the Navajo Nation and Hopi Tribe are giving away rights for the settlement. That's a misconception that started from the very outset with Sen. (Jon) Kyl's office. Their first press release about the bill included that language and unfortunately they still use that language.
We are settling water rights claims of the Navajo Nation. We're not giving anything away. The Navajo Nation certainly has water rights. What we don't have are decreed rights. That means rights that are recognized by the court.
In fact, the Navajo Nation will obtain certain rights from the settlement including the rights to use any or all of the water from the Little Colorado River. We've fought and debated with non-Indian parties about the waiver language, but we couldn't get them to make it simpler. If you look at the White Mountain Apache water settlement in 2010 the language is almost the same as this legislation.
NT: Senate Bill 2109 says the tribes waive "past present and future claims for water rights for Navajo land...arising from time immemorial, and thereafter, forever". That's really scary language. Why shouldn't the average Navajo or Hopi be suspicious?
Pollack: The tribes are waiving claims not rights. Rights are going to be determined one of two ways. It can be by settlement. As part of this settlement we're saying this is what we get and we're waiving our right to more. We're waving claims for more water not the right to get water.
Later, if the settlement is approved, if we wanted to go after upstream water users we couldn't, the waivers are to make the settlement permanent.
The other option for determining rights is trial. When the trial is over the same thing happens, except it's the court that determines Navajo gets X amount of water. Whatever the X is, it's a final binding determination, and you can't ask for more.
The Navajo Nation doesn't have rights until they are resolved in court, either by settlement or trial.
So, what's being waived is a claim to additional water in the future. When people say we shouldn't waive our rights permanently, well, that's what a court does.
NT: Are you saying that no matter what, eventually these claims for LCR water will have to be settled one way or the other in court?
P: We are in a lawsuit pending in front of the Superior Court in Apache County, and that court will ultimately determine what the rights are of the Navajo Nation.
If the claims aren't settled then they have to be litigated in court. Either going to court or agreeing to a settlement gives you the same court decree, but regardless, the claims have to be settled. Off the rez entities will continue suing the tribes and using water in the meantime.
Really, this settlement is the ultimate act of sovereignty. The tribe is knowingly entering into an agreement to resolve its water right. They aren't leaving it to a third party, we are making the deal.
NT: Most Navajo and Hopi have heard a lot of bad news about this settlement. The good news for the average Navajo and Hopi was supposed to be groundwater projects. What are these projects and who benefits from them?
P: The projects are for the Leupp and Dilkon areas for Navajo. Those projects are sized to accommodate the water demands of the populations in those areas through 2050. The water for those projects will come from the C-aquifer and Navajo can use an unlimited amount of groundwater.
Those areas currently get alluvial drinking water, which is basically surface water, it's water in the ground but not very deep in the ground. The projects will get deep groundwater, which is healthier.
The Leupp project is expected to distribute around 5,500 acre-feet of water per year and the Ganado project 4,700 acre-feet. To put that in perspective right now, each of those areas uses about 400 acre-feet of water per year. We estimate around 70,000 people will be impacted, but that's just an estimate.
NT: What are some of these other rights you mentioned that the Navajo Nation can expect from the settlement?
P: The LCR runs through the Navajo Nation, and Navajo has the right to use as much water from the LCR as it can capture and use. You've got a river, no court can stop you from using water from that river.
Bear in mind the Navajo Nation is downstream from other water users, so to make this a meaningful right the settlement puts limitations on upstream users. The settlement would prohibit any additional use of surface water for irrigation by those users. The settlement also would require that non-Indian users get the consent of the Navajo Nation to build a new reservoir.
We are essentially freezing the amount of water in the Little Colorado River that non-Indians have access to so the Navajo Nation can use it in the future.
NT: Let's talk about specific parts of the bill that activists and grassroots leaders have highly criticized. First, can the Navajo Nation sue for damages to the N-aquifer if the settlement is approved?
P: That's absolutely wrong. I have a hard time defending this part simply because the language in the agreement was terrible. I wish it was easier to read. That made it difficult to do the negotiations.
In that specific part of the settlement dealing with injury to water quality, it's talking about a specific scenario. When you take water, or divert water or pump it from the ground, as a result of pumping or diverting there's less water available. When there's less water available at the source there will be an increase in chemical imbalance of the leftover water.
What the settlement says is you can't sue people for using that water in the first place. It's not saying they can pollute or add any type of pollutant. In fact, the tribes retain environmental protections in the settlement. All we're waiving is the right to sue about natural occurring constituents because of lack of water from what's been used up.
NT: Explain the Peabody part of this thing. Why's it in there?
P: There is a difference between the settlement agreement and the Senate and House bills. The provisions for NGS and Peabody are in the legislation, not the settlement agreement.
What's important is, the Navajo Nation has the power here. If they don't extend the NGS lease the settlement agreement stays the same, we just don't get the Colorado River water through the Navajo-Gallup Water Supply for use in Window Rock.
Both of those provisions have nothing to do with the settlement agreement, those provisions are in the legislation. The Navajo Nation has the right to say no. If they say they don't want to extend the lease for either, that's their decision, but we still have our settlement.
NT: Does this agreement threaten the aboriginal rights or the Winters (Doctrine) rights claims of either tribe?
P: It's the fact that the tribes have aboriginal rights and they have Winters claims and they have rights based on historic and future uses that brought the parties to the table. That's what we are negotiating the very basis of, and the settlement is intended to settle the claims based on all of those theories. Without a settlement those claims will be unresolved.
NT: Why not "quantify" the water?
P: If you use a specific number as a quantified water right that number would be a limit. That's what happens in a court case, they decree a number, and then you're limited to that number.
This settlement doesn't have limits for the Navajo Nation, that's what makes it so unique. In fact, other parties to the agreement are limited.
Upstream users of the LCR can't develop any new agriculture or reservoirs. These other users are "grandfathered" into the agreement, because they are currently using LCR water, so that is not something that's being given away.
In this settlement no one will be able to build additional storage without Navajo consent. The settlement allows the Navajo Nation to control the surface water in the LCR river system, which is greater than any number.
And look, let's say you get in a wreck that's not your fault. Your lawyer might sue for $1 million and the court may find the other guy liable, but your damages could be only $200. So staying in court doesn't guarantee we get the full amount. There's a very, very, very strong possibility we're going to get more water in settlement than litigation.
NT: Another common criticism of the agreement is that money for the groundwater projects isn't guaranteed and these projects are unlikely to ever get built.
P: We don't know when the money is going to come, but we know if the money doesn't come by 2022 there's no settlement. We can't guarantee Congress is going to appropriate money for (the) project(s), or where exactly the money will come from.
What we can guarantee is that if Congress doesn't pay for them there is no deal. We've included several of these types of provisions and that is the best we can do.
NT: Besides the crazy legal language that some lawyers don't even understand, another fear of the average Hopi and Navajo is a history of abuse by the federal government. Critics say this settlement agreement is just another in a long line of attempts by the U.S. government to steal Native resources. Your response?
P: You've hit the nail on the head with what makes this settlement so difficult. When you're dealing with people that have been lied to and have every reason to mistrust the government, when you come to them with a settlement of course they're concerned.
It takes a lot of courage to sit down and go through the deal and ask do we have the courage to enter into something like this, or honestly ask if the lawyers did a good job.
We've built in safeguards to keep these abuses from happening. If things don't happen there is no deal. For example, is this legislation going forward without tribes approving? No. We can't settle this case without consent of the tribes. Also, if money is not appropriated in a timely fashion for the water projects there is no deal.
There are provisions in there to protect the tribes.
There's going to be mistrust. The best we can do is make a clear case, and that's why there's public meetings.
It's helpful to look back at the San Juan deal. There was controversy regarding that deal, but if you look at it today, the bill went through Congress and they set aside millions for the Navajo-Gallup Pipeline with construction starting this summer. Things are moving along better than we anticipated with that deal despite the mistrust.
NT: Isn't the Navajo Nation already party to other settlement agreements regarding water rights? What are they and what benefits are they supplying to the average Navajo?
P: So far, only the San Juan River agreement. We also have a draft settlement with the state of Utah, but that's in the early stages.
Most of the arguments we hear today we heard back in 2004 about the New Mexico deal. "You're givin' all the water away," was the argument then. Now that we're trying to get a court decree in New Mexico to uphold the San Juan settlement, we're fighting with non-Indians who say the opposite and are challenging us legally. They are arguing that the Navajo Nation gets too much water. How come they get all the river water? How come we can't pump as much water as we want?
Regardless, as a part of the San Juan deal New Mexico had to contribute $50 million to build a water supply system that would incorporate with the Navajo-Gallup Pipeline and bring water to that part of the reservation. So benefits are on the way and happening faster than we anticipated.
NT: Senators McCain and Kyl are on the record as saying the bill won't go forward unless Navajo and Hopi approve it. So why has Navajo Nation hired a lobbying firm to push the bill?
P: We hired a lobbyist four months before SB 2109 was introduced. We hired a firm to help us with the legislative side of things in Washington so that if the Council approves the settlement we're ready.
We've hired a D.C. firm, with knowledge of the legislative landscape, to help us maneuver through if the settlement is approved, and they are also helping with the Utah deal as well.
What's the alternative: we don't start our legislative strategy until the tribes approve? That would mean we start from ground zero if approved, and that would just be irresponsible.
The simple truth is there will be no settlement unless it's approved by the Navajo Nation. A lobbying firm doesn't change that. We need a lot of people to make this agreement work, like working with the Navajo Nation offices in D.C. That doesn't mean we're trying to push it through without approval.
NT: Put this settlement agreement in perspective when considering the obstacles the tribes face in terms of global climate change.
P: Global climate change is going to affect everyone, and it's going to affect the Navajo Nation whether they say yes or no. If they say no to the agreement, we'll litigate what those rights are. Whatever those rights are doesn't put water in the river. Water rights don't create water.
Black Creek Wash, which flows through Window Rock, is an example. Black Creek Wash flows into the LCR system. That is water that goes through non-Indian communities. The LCR settlement agreement says that Navajo can take all the water from Black Creek Wash. Without the settlement we'll have to litigate to figure out how much we can get.
So, how is Navajo affected by climate change? Currently most water supplies come from alluvial aquifers, which are shallow and are refilled with running surface water. When there's droughts there's less water because no water is flowing.
One of the reasons we want to build these groundwater projects is to build deep water wells that aren't impacted by drought.
If there's no settlement we'll do what we already do with our water supplies. If Navajo built the projects on their own that would be great, but with the status quo and global warming the Navajo Nation has to take steps on its own to get water of its own.
NT: So, all of the other parties are in agreement and now they're just waiting for Navajo and Hopi to sign on?
P: That's true. There's 30 or so parties. There's 3,000 water users in the basin, but the only people at the table with us are all the major water users. We required all of them to file an abstract so we know what their water rights are because we are limiting water usage by everyone in the LCR basin.
The Navajo Nation is gonna control surface water in the basin forever in this settlement. I know people are worried about that word, but "forever" protects Navajo as well. Non-Indians can't come back and say Navajo can't get all this water, or we've changed our mind and want to build a reservoir.
NT: What if the Navajo Nation doesn't approve the settlement. What's that mean?
P: No one is asking themselves what it means to say no to the settlement. It's easy to criticize the settlement, but no one is asking what the alternative is to the agreement. Saying no means we're going to stay in litigation.
We've had litigation ongoing now for 33 years to get to this point, so it will be many, many, many decades before these claims are resolved. Without a settlement, non-Indian water users will continue to litigate and challenge our claims. They will continue to build reservoirs and expand irrigation for agricultural use. Water could also be diverted for other purposes.
Forget the fact that litigation between us and Hopi and us and non-Indian users is gonna take forever. What will all that litigation bring? It brings a paper right. It won't give you the ability to use the water, like building storage facilities or irrigation. It just gives you a number.
In this settlement we get all the water. People who want to litigate don't have any clue how much water we're gonna get at the end of the day.
Courts are becoming less and less friendly to tribes regarding water claims so this idea that if we litigate we'll be OK is just wishful thinking. Nearly every tribe wants to settle their water rights claims. The Navajo Nation won't have an opportunity like this for a long, long time.