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Water pact for Navajos gets OK

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Copyright © 2013 Albuquerque Journal

Tribe can expand farm operations

A New Mexico state court Friday approved a major water rights settlement for the Navajo Nation, awarding the tribe enough water from the San Juan River to expand its agricultural operations in northwest New Mexico.

Navajo Nation Assistant Attorney General Stanley Pollack called it “a historic milestone in the Navajo Nation’s efforts to secure the water rights necessary to ensure a permanent homeland for the Navajo People.”

Amy Haas, chief counsel for the New Mexico Interstate Stream Commission, called the long-awaited decision “fantastic.”

Albuquerque attorney Victor Marshall, who has led opposition to the deal based on fears there was not enough water in the San Juan River to meet the terms of the deal, declined comment late Friday, saying he was still reviewing the judge’s 65-page decision.

The ruling by Judge James Wechsler, representing New Mexico’s 11th Judicial District Court in San Juan County, grants the court’s approval to a 2005 agreement between the Navajo Nation and the state of New Mexico settling the Navajos’ water rights claims on the San Juan.

The agreement would allow the Navajo Nation, already one of the state’s largest water rights holders, an additional 130,000 acre-feet of water for farming above and beyond the 195,400 acre-feet that the nation currently uses.

The 130,000 acre-feet is enough to irrigate about 40,000 acres of farmland.

Under the agreement, the Navajo Nation agreed to forego what might have been substantially larger water rights claims on the San Juan in return for federal support for construction of a water pipeline to water-scarce Navajo country in the deserts of northwest New Mexico.

Supporters of the settlement said it removes major uncertainties over water availability for non-Indians in the San Juan basin, because of the risk that the Navajo Nation might have gone to court and won a substantially larger amount of water.

“This fully determines the Navajo Nation’s rights in the San Juan Basin,” Haas said in an interview.

Under a series of U.S. Supreme Court decisions, Native American communities are legally entitled to water for use on their legally established homelands, generally with higher priorities than non-Indian users who came later.

But how much water that entails is unresolved across the West, according to Julie Nania, a researcher at the University of Colorado School of Law. Unsettled Indian water rights claims in the Colorado River Basin alone could amount to more than 10 percent of the river’s entire annual flow, according to Nania.

“That’s a huge quantity of water,” she said.

The process used in New Mexico, of a negotiated settlement rather than litigation, has been the common approach in recent decades to resolving the question.

The Navajo-New Mexico water deal has already won a congressional stamp of approval, and construction of the water pipeline is already underway. Wechsler’s decision clears one of the last major hurdles, though opponents still have the option to appeal his ruling.

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