Trial underway in long-running northern Arizona water rights case
FLAGSTAFF, Ariz. – A trial over water rights is underway in one of the longest-running court cases in Arizona history that will impact most everyone in the northeastern corner of the state.
The case will determine who has the right to water from the Little Colorado River basin, from streams and washes to springs, impoundments and aquifers.
The claims number in the thousands and likely exceed the water available.
The trial is expected to last years. Up first is the Hopi Tribe, which will spend the next couple of months outlining its past and present water use.
A judge has said the tribe has no rights to the river since it doesn’t cross Hopi land or to water resources off the reservation, which is landlocked by the much-larger Navajo Nation.
The Hopis are challenging that.
Here’s a look at the case:
Battles over water rights are playing out across the western United States as resources dwindle because of drought and climate change.
Arizona has two major cases in the Gila River and Lower Colorado River basins, which cover about two-thirds of the state. They date to the 1970s. Some important legal questions about jurisdiction and water law have already been decided, said Sarah Porter, director of the Kyl Center for Water Policy at Arizona State University’s Morrison Institute.
“It’s important to remember that we probably have more challenges embedded in our adjudications than other states,” she says. “For one, we have less water and we have quite a number of tribal claims.”
What’s at stake?
The Little Colorado River flows intermittently through the northeast corner of the state. The basin includes most of Apache County, and Navajo and Coconino counties north of the Mogollon Rim and east of Flagstaff.
More than half the land belongs to the Navajo and Hopi tribes. Without knowing how much water is available, communities can’t plan for the future. And the conflicts are plentiful.
The case will determine the rights and priorities of all water users, including cities, farmers, ranchers with stock ponds and homeowners with domestic wells.
If the Hopi secure rights to water, they still have to find money to build delivery systems to tribal villages that sit atop three mesas and other tribal land.
Under a 1908 U.S. Supreme Court case known as the Winters Doctrine, the tribes have a right to as much water as needed to establish a permanent homeland regardless of whether the water continually is used.
The Hopis’ arguments will be followed by the Navajo Nation, which has federally reserved rights that include surface water and groundwater.
While roughly 15,000 entities have staked claim to water from the basin, fewer are involved in direct litigation. The Arizona Land Department, a coalition of water users, the city of Flagstaff, the Salt River Project, the U.S. government as a trustee for the tribes, the Arizona Department of Water Resources, and the Navajo and Hopi tribes are testifying and cross-examining witnesses in the Hopi portion of the trial.
Flagstaff doesn’t use water directly from the river but wants to protect a future water source below a ranch it owns near the Hopi reservation.
“We’re one of the largest cities in the Little Colorado River basin, so quantifying and confirming our existing and true water rights is very, very important to us,” said Brad Hill, the city’s water services director.
The current trial is focused on past and present uses of Hopi water. The Hopi say they’re the top priority because they’ve lived in the region longer than anyone.
The tribe will argue its future needs in another phase that will begin in late 2019. Many tribal members have no running water in their homes. They practice dry farming, relying on rain to sustain crops in areas where runoff naturally would flow.
The tribe uses about 50 gallons per person daily, but it wants more than triple that to meet domestic, commercial, municipal and industrial use estimating its population will grow from 7,000 to 50,000 in the next century.
Flagstaff uses 90 gallons per capita daily. The city also uses reclaimed water.
A 1999 Arizona Supreme Court decision in the Gila River case found that tribes have a federally reserved right to groundwater, which isn’t regulated in Arizona outside the state’s major metropolitan areas.
The court also broadened the standard for measuring those rights so they are no longer linked solely to land that feasibly can be farmed.
“You can understand from a self-interest perspective why it’s in everybody’s best interest to minimize the Hopi claim,” said Thayne Lowe, an attorney for Hopi who is not litigating the case.
The case has been put on hold at various times for settlement talks.
The Navajo and Hopi were close to resolving their claims in 2012 with an agreement that would have provided more than $300 million for groundwater delivery projects and protection from over pumping by off-reservation users. Navajos would have received nearly three-fourths of surface water from the Little Colorado River.
But the tribes rejected federal legislation that accompanied it, and the tentative deal fell through.
The tribes vowed in 2016 to work together but have yet to come to terms.
“We have a good relationship with Hopi, but this is an area we can’t seem to agree on,” Navajo President Russell Begaye said earlier this year.
More talks are always possible.
Colin Campbell, an attorney for the Hopi, says a settlement is unlikely unless off-reservation water is part of the equation along with money to pay for infrastructure to bring that water to the tribe.