For Salazar meeting, water task force replaces 78 pages of recommendations with 2

By Marley Shebala
Navajo Times

WINDOW ROCK, November 15, 2012

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T he Navajo Nation Water Rights Settlement Task Force, in a surprise and possibly unprecedented move, threw out 78 pages of water settlement recommendations from their legal team.

And then on Nov. 9, the Council's Naa'bik'iyati' Committee unanimously approved the task force's recommendation to replace the 78-pages with two pages that are titled, "Position Statement of the Navajo Nation on Comprehensive Water Rights Settlement."

The 78-pages resulted after a task force meeting that started about 7 p.m. and ended about 11 p.m. on Oct. 29.

At the end of the Oct. 29 meeting, the task force directed the tribe's water rights settlement legal team, which tribal attorney Stanley Pollack heads, to draft legislation that incorporated their water rights settlement recommendations, which they would review on Nov. 7 before presenting it to U.S. Secretary of the Interior Ken Salazar in Washington, D.C., this week.

Salazar invited representatives from the Council and President Ben Shelly to meet with him and the Hopi Tribe him on reviving the Navajo-Hopi Little Colorado River settlement, Navajo Generating Station, housing for the Bennett Freeze, and water projects and water for the western portion of the Navajo Reservation via the Navajo-Gallup Pipeline Project.

On Nov. 7, at the urging of Delegate Dwight Witherspoon (Black Mesa/Forest Lake/Hard Rock/Pinon/Whipporwill), the task force repeatedly questioned their legal team, which included acting Chief Legislative Counsel Ed McCool, about their failure to follow the task force's instructions.

Witherspoon, who is a task force member, said that the draft legislation was basically Senate Bill 2109, which was not what the task force wanted.

U.S. Sens. Jon Kyl and John McCain sponsored SB 2109, which contained the Navajo-Hopi Little Colorado River Water Rights Settlement.

The Council and Navajo people on and off the reservation were unaware of the proposed water rights settlement and stated in several news stories following the announcement by Kyl, McCain and Shelly that SB 2109 was a surprise to them.

Those statements were quickly followed by public protests, a call for Shelly's removal, harsh criticism of Pollack, and an outpouring of public opposition to the bill at public forums and hearings across the Navajo Reservation. The Council voted it down in July.

Witherspoon noted on Nov. 7 that the legal team's work was not a "position paper" for Salazar.

"This is legislation to support a bill submitted by Sen. Kyl," he noted to the task force and legal team. "This is 2109."

Witherspoon added that the legal team's draft legislation continued to support his belief that the tribal Department of Justice, which helped draft SB 2109, cannot set aside their support for SB 2109.

"I feel like our work is being sabotaged by the Department of Justice," he said.

Delegate Katherine Benally (Chilchinbeto/Dennehotso/Kayenta), who also serves on the task force, agreed with Witherspoon.

"We voted this down and now we're trying to breathe life into it," Benally said. "We need a totally new position paper and we'll call it the Navajo Nation position paper."

She recalled that during their late night meeting on Oct. 29 that they all agreed to instruct the tribal water rights settlement legal team to draft a position statement that consisted of ten bullet points.

She added that it was also agreed that the task force members that present the position paper to Salazar would also make it clear to him and other parties involved in Navajo water rights settlements "to take it or leave it or give us a better offer."

"This legislation comes as a significant surprise," Benally said. "We were merely looking for a statement with ten positions. That is what we want to take with us. Am I correct? I am correct."

Pollack, McCool, and attorneys Bidtah N. Becker and Kate Hoover were present at the task force meeting on Nov. 7 but only Bidtah responded to the statements by Benally and Witherspoon.

Becker apologized to the task force and agreed that the draft legislation only addressed SB 2109. And she said that's because Salazar wanted to discuss SB 2109.

Becker said the legal team also thought that the task force would be working on a position statement next week.

She added that the attorneys consulted with task force chairperson Speaker Johnny Naize (Blue Gap-Tachee/Cottonwood-Tselani/Low Mountain/Nazlini/Many Farms) and McCool.

According to the position statement recommended by the task force and approved by the Naa'bik'iyati' Committee, "The Navajo people (Diné) have a strong cultural tie to water as one of the four elements of life. For the Diné, water is sacred and its value immeasurable.

The position paper's introduction is followed by "policy positions" to "guide the nation in negotiations and consideration of any water rights settlement" involved in the Little Colorado River Basin in Arizona, the Lower Basin of the Colorado River in Arizona, the Upper Basin of the Colorado River in Arizona, and the Upper Basin of the Colorado River in Utah.

Among the policy positions is that "any and all of the nation's water rights settlement should: "Permit marketing of Navajo Nation water outside of the Navajo Reservation, Place no restrictions on taking tribally owned fee land into trust, Include mandatory funding so that funds are available upon enactment, Provide that construction of water delivery projects can begin upon the appropriation of funds, Preserve and not waive claims for injury to water quality, Require the Navajo Nation to waive only the claims of the Navajo Nation and not waive the claims of members of the nation."

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