by Bill Donovan, Special to
the Times
Navajo
Times
28 May 2004
WINDOW
ROCK - Farmington attorney Gary Horner and attorneys for the
Navajo Nation are at opposite ends of the spectrum when it comes
to what kind of agreement is needed for the San Juan River water
rights settlement.
Earlier
this week he said that the Navajo Nation is trying to pull a fast
one by seeking more water than it needs. The nation, he said,
plans to sell the excess water to cities like Phoenix, Las Vegas
and Los Angeles and make tens of millions of dollars of profit a
year.
But
Stanley Pollack, the Navajo Nation's chief water rights attorney,
said Horner doesn't know what he is talking about. If he did,
Pollack said, he would know that the settlement does not allow the
Navajo Nation to sell off any excess water.
"All
they are after," said Horner, "is the money."
According
to Horner, what the Navajos want to do is corner the market on
water from the San Juan River Basin, forcing anyone who wants the
water to pay for it.
Horner
was one of those who spoke on Monday at an adjudication hearing in
the 11th Judicial Court in a lawsuit that was filed in the early
1970s to determine who has water rights in the basin.
What
seems to be at the center of the dispute is the Navajo Nation's
desire to divert some 600,000 acre-feet of water from the basin,
which Horner claims is about twice what the nation needs for its
own use.
He claims
that the Navajos plan to use the remaining 300,000 acre-feet to
lease to non-native interests who will need water in the future
and he has been trying to get others in the Farmington area to
support his claim.
What
Horner doesn't understand, said Pollack, is that the important
figure in the settlement is not how much water will be diverted
but what the depletion level is that is allowed under the
settlement. That figure amounts to about 270,000 acre-feet, which
is what the Navajo Nation feels it will need for the Navajo Indian
Irrigation Project and to meet its other needs.
Horner
said he understands that and used an analogy of water in a ditch.
If the
Navajos have a ditch and some 10,000 acre-feet of water is put
into it, that's the amount that is being diverted to the tribe.
But if the tribe uses 6,000 acre-feet and returns 4,000 to the
river, that 6,000 figure is called depletion.
The
depletion figure is what the Navajo Nation is looking at, said
Pollack, as how much it needs to meet current and future needs.
But
Horner contends that the tribe's attorneys know what they are
doing and what they want is a settlement much like the one the
Jicarilla Apaches have which allows them to sell off their excess
water. In fact, the city of Gallup in recent years has been
talking to the Jicarillas about the possibility of buying part of
this excess to meet their future water needs.
Pollack
said he's worried that Horner will get enough believers in his
theory that he could get a delay in the settlement. The Navajo
Nation and the state are trying to conclude the agreement so that
Congress will consider funding the long-proposed Gallup-Navajo
Pipeline in the next year or so.
Congressional
leaders have said that they will not consider any funding for the
pipeline until the Navajos and the state have reached a settlement
on the San Juan River Basin.
Horner
said that the Navajos so far have nothing to worry about since
currently no one is listening to him.
In fact,
the district court judge handling the case, Rozier Sanchez, has
questioned why Horner is even bringing up arguments dealing with
the settlement since he has no clients that have an interest in
the water rights.
Council
Delegate LoRenzo Bates (Upper Fruitland) said he agrees with
Pollack about the settlement provisions.
"But
what right does Horner, a non-Navajo with non-water rights, have
to tell the Navajo Nation what it can do and can't do?" he
asked.
"If
the Navajo Nation at some future point wants to sell or lease its
water rights, that's the Navajo Nation's business not his,"
he said.
Bates
also pointed out that the Navajo Nation was claiming in the
beginning the right to 100 percent of the water and now it has
reduced its claim by 40 percent.
He added
that all Horner is doing is trying to divide the Navajos and the
non-Navajos.
"He's
making it a race issue and what he is doing is not good for
anyone," Bates said, "Navajo or non-Navajo."
Pollack
said Tuesday that he is still hoping that the settlement can be
finalized in the next few months so that the pipeline project can
move toward reality.
Currently,
he and other tribal officials view Horner as just a thorn in their
side but Horner said he is trying to others who are involved in
the litigation to ask the same questions.
As for
Horner, he said he has no grudge against the Navajos and feels
that they should get all of the water the tribe needs - but no
more. "If that happens, there will be enough water for
everyone," he said.
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