San Juan River Basin Settlement Critic: "Pulling a Fast One"

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.

          

    


Reprinted as an historical reference document under the Fair Use doctrine of international copyright law. http://www4.law.cornell.edu/uscode/17/107.html