From Water Rights Task Force Mtg Notes for the other grassroots representatives, 10/29/12. By Jack Utter, I have 14 pp of notes, which this is drawn from. Nicole Horsehereder can fill in any blanks and make any corrections. Rita Gilmore was unable to attend.
This was an open meeting.
Abbreviated Meeting Minutes for the Diné Water Rights Committee and its multitude of Affiliates
OUTCOME SUMMARY
Please see attached image, by Eric Descheenie, Speaker’s staff. In the photo, Nicole and I are behind Dwight Witherspoon. Rita was unable to attend due to continuing confusion among her superiors on her administrative leave issues. However, she called us and gave us her proxie, so we spoke for her at the meeting as well
This Friday, 11/2/12, a "position paper legislation" for the 14 Nov. mtg between Navajo Nation govt. officials and Interior Secretary Salazar will be “dropped” at legislative offices in Window Rock. It should be available on the Net (Legislation 0468) after 5:00 PM 11/2/12. It is Nabi Committee legislation and is to contain all the issues discussed at the 29 Oct. meeting as important. (See the details below.) There will then be a five day period for the people and the Task Force/Advisory Group to consider the position paper and all the issues raised by the delegates and the grassroots representatives on 29 Oct. and before. There is a Task Force mtg next wed., 7 Nov., to consider any edits/amendments for the position paper legislation.
The Speaker has made plain this is an issue-raising meeting, not a meeting to push an amended S. 2109 through Congress in the lame duck session. However, it seems that is still what Salazar, and those influencing him from Hopi, Navajo, and Kyl's office, want to do.
Every substantive issue we, in the grassroots movement, have ever raised before was raised at Task Force mtgs. We will see how well DOJ (Bidtah Becker) compiles the issues for the proposed position paper. Nabi is to vote on next Friday. The final editing work is not with DOJ but the Task Force, with the people's input. We'll need it right away. The legislation/position paper should be out, again, on Friday 11/2/12. Ed will keep and eye out for it.
There is a lot of background in the notes below, if you want to wade through it. I took the best (but still rough) notes I could while also participating periodically in the discussion. The delegates, especially Mr. Bates, very strongly insisted that the grassroots issues be raised in this meeting before any action follows it.
Nicole and I were given fair opportunities to speak. She was our lead Speaker and set a good tone and substance for me to follow. I could tell the delegates appreciated her thoughtful and heartfelt commentary.
Also, Nicole made clear, in my mind, the People are very concerned about both S. 2109 and the Agreement it was meant to ratify. Both were bad, in other words, and unacceptable.
This is full of detail, to show how things progressed.
Mtg was to start at 4. Didn’t ‘til 6. Nabi wass in session 'til 6.. We met straight thru to 11 p.m.
As Speaker was prepping for agenda review, he had me announce a “Western Water Law Conference in Vegas, 13-15 November. I mentioned Patricia Mulroy would be speaking. She’s the queen of water policy in the West—representing the So. Nevada Water Authority. Could be a strong Navajo ally.
There was an overview of the legal proceeding that took place the week before, in front of the Special Master appointed by the state court. It was held in PHX for the Hopi claim of a prior right of Time Immemorial. Leonard Tsosie very, very strongly praised Pollack and Scott McElroy for being prepared and putting the Hopi lawyer on the defensive. Leonard also gave an overview of the proceedings, then Dwight gave a very thorough overview. Dwight concluded, rather strongly, with a suggestion all this current legal activity was unnecessary if Navajo and Hopi had worked together against the outside and not against each other to ultimate the benefit of the outside--due to tribal resources and effort going against each other.
Hopi has a new water lawyer, which explains to me why this issue of time immemorial is coming up at this very, very late date (it was said the case was originally filed in 1978). It also demonstrates previous lawyers were not doing what they perhaps should have way back for Hopi. I side with Dwight, in that there has not been anywhere near enough working w/ Hopi for the mutual benefit of each. As you will see, others do too.
Navajo ended up promoting “equitable apportionment” between the tribes. This would be for water from the washes and groundwater. The surface water question, of Hopi’s getting access to LCR was laid low, we were told, by a previous judge who said even if they (Hopi) could demonstrate some kind of right to the LCR main stem water they could not get access across Navajo Land, so it was decided no go on Hopi rights to the river itself. (Added thought: This would not foreclose Hopi and Navajo negotiations on such issues if it was advantageous to both parties.)
The key case Hopi relied on was U. S. v. Adair (9th Circuit Ct. of Appeals, 1983), for the Klammath Tribe. Their res. was established by treaty in the 1860s, and an aboriginal hunting and fishing right became the foundation of a reserved water right for these purposes—a kind of instream right, to have a baseline of water remain in the river to support a moderate livelihood from fishing. Even though their res. and they were “terminated,” their treaty hunting and fishing rights were not. The priority date set for this instream right was "time immemorial;" it's a phrase meaning time extending beyond the reach of memory, record, or tradition, indefinitely ancient, "ancient beyond memory or record."
Hopi declared at the court proceeding they were NOT trying to say they fished, but they farmed in time immemorial days and should therefore get this date applied to all their rights—water sources now limited to the washes and the groundwater.
Navajo was saying Navajo could claim this time immemorial right too, but preferred the equitable apportionment approach.
Ultimately, the Special Master (who was said to be new, also) will have a report for the court in several months, and then the court will rule on a summary judgment motion to decide the issue, without a trial, based on undisputed facts (if the court agrees the facts are actually undisputed).
There are a number of complicating factors affecting priorities as between Navajo and Hopi. Treaties (Hopi has used a kind of reliance on the U.S. Mexico Treaty of 1848 “Guadalupe Hidalgo.” It, however, primarily contemplated the Pueblos of today’s N.M.) There’s the 1882 joint reservation for the Mokis (Hopis) and other Indians. Navajo lands along the river were added to the res. in 1900 and 1934, and other dates along the LCR. Some procedural dates of 1958 and 1970, looking to separation of joint lands, present two more dates. There’s an 1868 Treaty for Navajo (the 1849 Treaty was not mentioned), but no treaty lands were said to be over by the River (yet there are Window Rock area lands (some treaty lands north of Fort) and other lands over this way and all the way to Leupp that are in the LCR watershed.). Hopi had apparently claimed senior and even, apparently, time immemorial rights for their recently acquired ranches, but dropped that claim after a while.
Elmer Begay, on one of several occasions, thoughtfully and strongly emphasized the need to place appropriate values on the waters at issue, under various circumstances and types of uses.
After this, the “working with Hopi if we can” issue arose again, supported by Dwight, Katherine, and Leonard Tsosie, suggesting a try at it be made in D.C. at the Salazar mtg on 14 November. It is important to note that other delegates often indicated their agreement with these cooperation proposals made on the 29 Oct Task Force meeting with informative nods in the direction of those who were speaking at the time.
I added that if the two tribes worked together as suggested by Dwight et al., then tremendous moral authority and political authority could flow from such an alliance.
Elmer Begay questioned whether this sort of strong cooperation has been pursued.
Pollack answered that this kind of thing has happened in the two settlements (in 2010 and S. 2109). There was, in his words. agreement on use of the washes and the N-aquifer. (I remain skeptical about the complete disregard for the ownership of the main LCR surface water by Navajo. This is, in my view, an enormously costly and unnecessary waiver by Navajo.
Katherine B. re-emphasized the need for efforts to work together with Hopi, and Speaker made it an item for the Salazar mtg.
Mr. Tsosie again praised the Nation’s lawyers for their “zealousness” in the Hopi time immemorial proceeding, including Scott McElroy—the contract attorney from Colorado--very famous in western water law circles, yet who has present and/or former clients in the lower Colorado River basin, the upper basin, and the Rio Grande basin. I did not say this except to Nicole, but in my view, they (those former clients of McElroys) benefit from his maintaining things as close to status quo as possible, and keeping Navajo opportunities “down.” My word for these notes only, not a public statement, yet.
It was noted the US attorney lived up to the trust responsibility for both tribes.
Nicole said she’d like the see the very same great zealousness constantly exercised by the Nation's water rights attorneys in pursuing settlement claims for Navajo, not just in the courtroom on collateral issues.
I noted the 340,000 acre feet a year going into the Col. River from the LCR, and its ownership value—at least $3 billion. Plus Navajo having no actual bona fide Winters Rights ownership or property interest in this water, or any surface water in S. 2109 and its agreement. Thus Navajo, under S. 2109, had no property right that supports leasing this water of the Nation.
About the trip to see Salazar for 14 November: Nicole was asked again to go. She said she would if the Navajo position was one she could support. Speaker tried to reassure her on this matter, and continued to make certain her issues appeared on the board.
Specific issues arose on NGS, the CAP water for Window Rock (6,411 acre feet/yr), the relevance of the Council’s approval of the 2010 legislation, the formerly proposed Western pipeline, the future lower basin settlement, the future upper basin settlement, the Utah San Juan settlement, etc.
Water mktg in S. 2109 was raised, and it was asked what could be mkted. Attorney Hoover said that off the res., only the CAP water (6,411 acre feet) could be marketed.
Pollack admitted that some of what the other side tried to do, in the settlement, was to “extort” an approval through the CAP water for Window Rock. He was encouraging the CAP water acquisition for WR. I later asked the Task Force why rely on 4th priority or lower Col. River water in CAP when you could get 1st priority water for the Nation’s capital.
We were all told in the past that no upper basin water could go to the lower basin, but Utah is going to take 100,000 acre feet/yr from near Page, AZ in the upper basin, cross the AZ state line three times, and deliver it to the lower basin in SW Utah. “If they can do it, Navajo can do it” is what I said. Additionally, DOJ has already helped negotiate the City of Gallup, in the lower basin, getting Jicarilla water from the upper basin (with Jicarilla actually marketing it to Gallup across the Navajo Nation’s lands) right in our own back yard. So anyone who says it can’t be done by Navajo from basin to basin and across state lines has nothing to stand on—Utah and Gallup demonstrate this truth.
Nicole re-emphasized this point stating N-Aquifer water went out of basin and out of state with Peabody coal in the slurry line. The AZ state legislature changed its prohibitory law just for Peabody to let this happen for them. They did the same for a mining company to take water out of upper LCR into the Gila River drainage. So, it's discrimination to allow a bias against Navajo when adjacent states are allowing it.
Lorenzo Bates began a series of logical and pointed questions to move things along. It really came down to “What do you (Navajo Nation) want in an LCR water rights bill, what do you want out?” He also said he wanted to hear what the masses of grassroots people out away from Window Rock want.
He cautioned moving too hard and fast without the proper approvals from Nabi, the council, the people, and the President. Then there are the other parties (Hopi and non-Indian) to think about.
Hopi and Navajo coming together was again emphasized by Lorenzo and Leonard. Lorenzo again firmly requested input from the people’s grassroots reps. Leonard noted “we all represent the people.” He also stated how powerful it is to have the US on your side. He said that if we’re reasonable, we could get Interior to support and accommodate Navajo. He felt he and other delegates are satisfied with the size (volume) of the water in the settlement (S. 2109). (Nicole and I strongly question that, especially for the surface water. Not a drop was claimed as a genuine Winters right. It is still not clear all the delegates understand that in S. 2109 Navajo was to receive no genuine Winters rights (i.e., regular property ownership rights), to any main stem LCR surface water.) I read two sentences aloud from U.S. 9th Cicuit Court of Appeals Judge William Canby’s book on American Indian Law. “[It] seems almost certain that the status of Winters rights is the same as that of the land they serve. As a result, Winters rights arising by implication from a treaty or statute establishing a reservation are property to which title is recognized, as are the reservation lands themselves."
Questions about the suit against the Interior Sec. on the main stem Colorado (for failure of the trust responsibility to Navajo) were raised. There was talk about what would trigger its withdrawal (cancelation).
Speaker responded to a question suggesting the trip to DC is not intended to finish anything but to present a number of issues to the Secretary. There were some cautionary statements about having something in hand so Navajo does not look unprepared to the Secretary, in front of Hopi. Lorenzo pressed Nicole and me at that point for input from the grassroots.
Specifically, Nicole and I were asked about what bothers us, and those we represent, that’s in or missing from S. 2109, or “what do the people want?” Nicole did a great job of listing nearly all the issues we’ve had before; such as NGS out, Peabody being exempt on retention pond cleanup, and exempt from the N aquifer mgmt plan, and waivers of tort claims for environmental damage, maintaining water quality of LCR water that comes downstream to Navajo, mktg of water, genuine claims and rights to maximum surface water (not what the lawyers had done on water that we can capture it if it “reaches us”), and so on. These were noted by the staff and delegates and added to a list of concerns on the board.
I added as issues for the list: the CAP water being used to extort a vote, the ability to put Navajo 1st and get ownership over and property rights to surface water, charging NGS for water. (Later it was clear Pollack had already reached the delegates on this issue and convinced most that NGS water was not Navajo water. This is of course a major mistake, in the view of perhaps all of us on the grassroots side. And, using some words from Leonard Tsosie, I noted Navajo has to take a NOVEL approach to its water rights if it’s going to overcome the current Status Quo water rights philosophy which “keeps Navajo down.”)
Nicole again emphasized that leaving Navajo only with federal environmental law to protect itself, and not the rights to also sue in tort actions for environmental damages, was wrong.
Mr. Bates re-iterated the importance of developing a position on what Navajo generally wants in place of the voted-down S. 2109. At least a contemporary position paper acceptable to present to Interior, for example, is the kind of thing the Task Force and Advisory Group should develop, he expressed.
There was additional general discussion about the lame duck session of Congress, after the election, what time limits it presented, how the election might come out, and how to refine a Navajo Nation position on LCR at this critical time.
Katherine B. noted some of the important issues being raised that evening had already been raised and listed at previous mtgs. These previously addressed issues were later presented by Lorenzo in a memo copy he had in hand, which had a list developed by DOJ from Task Force comments at a previous meeting.
Cooperation with Hopi and US government support for both tribes were again emphasized as important by Mr. Tsosie.
A sense of momentum and achievement was in the air, contributed to by all the delegates on the Task force, the Advisory Group members, and the visiting Mr. Tsosie.
Mr. Bates noted this, and the group moved rapidly to accumulate its recommendations and directives for the evening.
Leonard wanted to assure the end product for Salazar would cause Salazar to take Navajo seriously.
Eric Descheenie stated Salazar’s staff said they do not want to waste Navajo’s time back east. And, that Navajo may have the opportunity to get a number of things with the leverage it seems to have.
Leonard and Katherine remarked that the trip has the purpose of "going to test the waters," and they meant this pun due to the subject matter.
Dwight raised the importance of the coming election, and the ramifications it will have. The lection is next Tuesday, and the Task Force meeting is wed. So, Dwight and others stated, we'll know the outcome when the final edit is done on the position paper legislation.
Katherine noted the need for Navajo to participate more in economic ventures that have aided others enormously, like NGS, and make Navajo a participant/owner in the future in such ventures.
She mentioned the Utah San Juan Settlement, how her communities had presentations on it. How they’re ready for it. “We know what’s good for us. That’s the way of the Utah People.”
Issues of quantification came up. Whether to quantify rights or not quantify them.
I mentioned surface water values, when owned, represented a potential source of funds for capital investment when surplus water, to which the Nation has a property right, can be leased for potentially large sums.
Leonard re-emphasized cooperation between Hopi, Navajo, and US in setting priority dates, like “time immemorial.” Speaker became involved. He wants quantifications that favor Navajo, and claim all un-appropriated water. I added to claim appropriated water as well, and potentially get paid for that which Navajo can’t obtain. In other words, claim the water that should be Navajo's, but that others took first and that Navajo should either get back or get paid for.
Nicole pressed the water quality issue again, and that S. 2109 did not mention it. Visitor Jennifer Taliman was permitted to comment. She discussed quantification vs. non-quantification, CAP water, and Navajo’s role (as viewed by outsiders) in making sure CAP operates.
There was notice of previous discussion of NOT quantifying Navajo water claims. I added that if there is not an identified quantity, you don’t have bona fide ownership. Speaker made a comment here that I missed.
Dwight raised the surface water quantity of 160,000 acre feet of Blue Springs water. I note again that the total average annual flow from LCR into the main Colorado is 340,000 acre feet. That number should be used in negotiations as well.
Delegate Alton Shepherd re-emphasized the importance of starting with legislation CJY-39-12, that voted down S. 2109, and adding the other issues discussed tonite for the position paper for Salazar. CJY-39-12 is attached to this e-mail.
The Speaker noted, with Pollack, that the NGS water wasn’t Navajo’s. I, of course, strongly disagree. Sometime during the mtg I made mention of it.
The question of marketing arose again. Atty Kate Hoover was asked to comment. She said mktg off the res. could only be with CAP water in the settlement. The rest of the water, she said, could only be marketed on the res. She also stated you can’t market water off the res. that rises on the res. (i.e., begins to flow on the res, like springs (e.g., Blue Springs), and precipitates onto the res.)
I countered this, after being recognized by the Speaker, by reporting that Mescalero now has federal legislation allowing it to market off their res. water that rises on their res. This clearly counters the "rule" about waters rising on the res. not being marketable off the res.
Dwight added he thought our assignment for the night was to put down what we want, not to start substracting from what we want. He promoted claiming surface water, and unappropriated water.
Ms. Hoover stood up and noted “Mr. Utter is not a lawyer,” which I emphasized myself in her presence at the first Task Force meeting, and she said something else I can’t recall. (I note that no other Task Force members are attorneys either.) I was able to disagree with what she had said. She did, however, say whatever flows down to the res. "is ours" (meaning there is no quantified claim), and "we’ll just use whatever comes thru" (again with no ownership claim, before some kind of capture of the water that “reaches” Navajo can be made. Again, there was no LCR surface water claimed for bona fide Winters rights, to which the Nation would have property rights of the kind that Judge Canby was talking about and that would allow leasing water off the Nation.
The S. 2109 water quality waiver was raised again by the Speaker as a concern. Nicole indicated she, and the grassroots people, did not want the Navajo right to file tort claims (suits) for water quality damages to be waived.
Project funding reliability and assurances were raised as issues. Leonard had some questions, as did Katherine B. Pollack went over the funding set-asides/amounts in S. 2109, and the “poison pill” language in the legislation that says if not all is done, and promises kept, in funding etc. by 2030, then there’s no deal. (I have trouble with that being relied on as an assurance. It’s another18 years in the future. I think greater assurances are needed up front. Katherine B. suggested the same verbally (i.e., what I was generally thinking). S. 2109 funding was said to be a little different, no construction was to start ‘til all the funding is in the pot. Leonard and Katherine discussed the strong merits of having at least some project money to start things off with, though she preferred full funding.
Pollack went back to the concern Nicole and I raised that the Grassroots movement has not been able to see the Utah settlement and it has been kept from us and just about everyone else. We noted earlier contacts with Utah. They said there was no confidentiality as far as they were concerned, but they promised Mr. Pollack he could be in charge of all dissemination of information to the Navajo Public.
No copy has been made available. Pollack said to Resources members, “we’ve just been waiting for direction from you on sharing information." It was mentioned we (grassroots) should be given a mini-presentation. Nicole said she preferred to read it. Discussion fell off from there. I will add here that if the Utah Settlement was so great, then it would not be necessary for Mr. Pollack to hide it. It may have some very attrcative benefits, but the costs could be huge (as they were in S. 2109) and hidden from the view of everyday folks. It's been said to me that DOJ has acted like this analogy: "Here for you, Navajo, are five real silver dollars that are your heritage" (and five silver dollars would excite interest in most people). But behind their back DOJ is giving away the other 95 silver dollars that should have been Navajo's (of the 100 that were actually the Nation's, but that they kept secret from the Nation) to outside interests. The people of the grassroots movement therefore do not trust anything DOJ does that is done in secret and withheld from public review.
The Speaker said he hesitated to give the big writing task for the 14 November position paper legislation to DOJ (it seemed because of the enormity of the task and their work load this week). He wanted every issue/concern about S. 2109 and its agreement, that were raised in the 29 Oct Task Force mtg., to be identified in the S. 2109 documents, i.e., show the places where the issues are in the documents. The discussion at the 29 October mtg was then headed toward a decision to do a coherent position paper with every major issue raised.
Pollack intervened and said he was confused about what was going on. He wanted to give the Task Force "the benefit of" his legal knowledge and experience before they proceed.
He also said, from his understanding, that Sec. Salazar wants to take the existing S. 2109 before Congress right now, with some (acceptable) modifications that Navajo and Hopi can do now without have to start over with all the other parties.
Speaker responded that what we’ve been talking about, and the changes we’ve been recommending, is what we want to do “No on S. 2109 as is. We’re not directly approving the settlement at this time. That is our position."
Kate Hoover may have said something at this moment, which indicated resistance to the direction the Task Force was going. I can’t recall. However, Katherine Benally said this about the Task Force etc.: “I think we’re only doing what we should have been afforded the opportunity to do before. Who works for who? Don’t let the tail wag the dog. If they don’t like it (I think she said here “that’s unfortunate," but I didn’t catch it). “It was always on their [DOJ’s] terms, not ours."
Then Bidtah interjected about necessary procedures for a position paper from the Task Force—if Nabi had to approve, or the Council. She thought the Council did not have to, and that Nabi may not have to. Leonard Tsosie wisely suggested that the position paper go through the legislative approval process of Nabi, and a public comment period, even if it was not legally nececcasy--it's necessary, he and others believed, for the people and the president.
Jarvis Williams (legis staff) outlined the time line for such action. There will be proposed position paper legislation this Friday. This will be followed soon by a five day public review over the Net. Then the Task Force will meet Next Wed. a.m. for an edit, then it goes before Nabi for a vote prior to the Salazar mtg. Probably the vote will be on next Friday.
Leonard suggested a process whereby DOJ could create its own parallel comments paper, that accompanies the position paper legislation, for the task Force to consider.
The meeting ended.
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