The Navajo Nation is appealing a trial court ruling last month dismissing its case against the U.S. Department of Interior over its rights to Colorado River water.
The Nation originally claimed Interior both violated the National Environmental Policy Act and breached its trust obligation to the tribal community when it published its 2001 Colorado River surplus guidelines. These are the guidelines to be followed by the Colorado River Basin states in years when the river runs a surplus.
The crux of the lawsuit was that, since the Nation’s Colorado River rights have yet to be settled by the courts, the guidelines failed to consider the Nation’s potential water rights and needs. Both of the Nation’s claims were originally dismissed in district court, but an earlier appeal to the Ninth Circuit determined the breach of trust claim deserved further review.
The latest appeal, filed last month, is in response to the court once again dismissing that breach of trust claim.
The Nation argued that, when the federal government created the reservation, it also assumed the obligation to “determine the quantities and sources of water required to make the Navajo Reservation a permanent homeland for the Navajo people” and also to secure and protect that water.
Judge Murray Snow wrote in his dismissal that “none of these substantive sources of law create the trust duties the Nation seeks to enforce” and that “the general trust relationship between the Nation and the United States is insufficient to support the Nation’s breach of trust claim.”
The Navajo Nation appealed the decision on Oct. 18. The appeals court has not yet set any dates.
A hotly litigated issue
The Navajo Nation’s water rights have been in and out of the courts for most of the last century.
Tribal rights (including the Navajo Nation’s) to the Little Colorado River Basin, a tributary to the Colorado, have been tied up in Maricopa County Superior Court for more than forty years in what has become one of Arizona’s longest-running court cases. Last year, a group of water users tried to undo a New Mexico state appeals court ruling that set out some of the Nation’s rights in that state.
But most of the time, the Nation’s water rights are established through settlements.
The Nation has been negotiating water rights settlements with the Four Corners states for decades. The most recent of these was an enormous Upper Colorado River Basin agreement with Utah. Congressional approval for that agreement was introduced by Utah Sen. Mitt Romney, with both Arizona senators as cosponsors.
Meanwhile, Arizona Mirror reported last week that the Navajo Nation intends to claim the enormous amount of water formerly used to operate Navajo Generating Station.