Water: Southwest Coalition Statement of Commitment and Call for Allies

            Whiskey’s for drinking, water’s for fighting over. —Mark Twain

More than any other area of North America, the Southwest faces water shortages just as demands for water increase. These colliding forces are inevitable products of industrial civilization. Deep Green Resistance chapters across the Southwest recognize the imminent catastrophe. We view the protection of ground and surface water, and the protection of indigenous peoples’ rights to their water and landbase, as critically important. We declare water preservation and justice as our primary focus.

Deep Green Resistance Southwest Coalition is a confederation of DGR action groups located in the southwest region of North America. While each group focuses on ecological and social justice issues specific to their region, as a Coalition we work together to reinforce each group’s efforts. Our members include:

Deep Green Resistance Colorado Plateau

Deep Green Resistance Sonoran

Deep Green Resistance Colorado

Deep Green Resistance Great Basin

Deep Green Resistance Chaparral

Great Basin Spring, Goshute Reservation

Great Basin Spring, Goshute Reservation

The Increasingly Arid Southwest

The region is among the driest areas in the world. The southwest receives only 5-15 inches of rainfall a year[1] and nearly all climate models predict an increase in both aridity and flooding with global warming.[2] As increasing temperatures force the jet stream further north and more surface water is evaporated (notably in desert reservoirs like Lake Powell where an average 860,000 acre-feet of water—about 8 percent of the Colorado River’s annual flow—is lost every year),[3] overall precipitation is decreasing even as summer storms paradoxically become more intense. And there is no margin of safety from which civilization can draw—the Colorado River, for example, is already fully allocated; all the water is claimed.[4]

Agriculture is far and away the largest water consumer: California’s Imperial Irrigation District consumes 3.1 million acre-feet of Colorado River water every year, compared to the rest of Southern California, which gets only 1.3 million.[5] Large amounts of water are also used for oil and gas drilling—an estimated 100,000 gallons per fracked well[6]—and coal mining and burning.

 

Ken Dewey, climate.gov

Ken Dewey, climate.gov

The water shortage is already wreaking havoc among wildlife. In California, the drought is partially implicated in the deaths of tens of thousands of native waterfowl. As water sources dry, birds congregate around remaining oases like fountains and irrigation ditches. In such close quarters, disease spreads quickly. Other victims of water scarcity in California include scores of thousands of bark beetle-killed trees—so much so that these results “herald a region in ecological transition.”[10] Unsurprisingly, 2015 is among the worst California fire seasons ever.This year, twelve western states declared drought emergencies.[7] On April 25, 2015, the largest US reservoir, Lake Mead, dropped to an historic low of 1,080 feet. That record surpassed the previous low set last August; Mead has never been lower since it was filled in the 1930s.[8] These conditions are unlikely to improve. In spring of 2015, snowpack in the Sierra Mountains measured at just 5 percent of normal.[9]

Desperate Measures

These unprecedented changes are driving ever more desperate and costly projects, such as the Southern Nevada Water Authority’s planned multi-billion-dollar pipeline project in eastern Nevada’s and western Utah’s arid basin and range country. If completed, the project would pump billions of gallons of groundwater to Las Vegas, threatening the Goshute Indian reservation, the livelihoods of ranchers, many rare endemic species, and the land itself.[11]

A proposed California water pipeline may move as much as 7.5 million acre feet of northern California water south a year. It was just revised to include only a third of the originally planned habitat protection, re-allocating water from the Sacramento-San Joaquin Delta. Situated between California’s wetter north and its dry and populous south, the delta contains one of California’s largest remaining wetlands, home of green sturgeon, steelhead, and endangered Delta smelt.[12] More extreme are plans to siphon off some of Canada’s abundant water to California.[13] As drought and demand continue their increasing arcs, however, these desperate plans for massive water transfers become more acceptable to many.

The Only Sane Response

The government-industry axis takes water from the less powerful, regardless of any natural rights such groups may have.[14] This cannot continue, not even beyond the very short term. When the unstoppable force of increasing demand for water—continuing without limit—meets the immovable object of shrinking water supplies, environmental devastation and injustice swiftly follows.

DGR Southwest Coalition supports any protective or restorative action for ground and surface water, including the removal of dams and reservoirs by any means necessary. At the same time, we advocate for and support the dismantling of the systems (capitalism specifically and industrial civilization generally) as the only strategic way to safeguard the planet, and to keep it from degrading into a barren, lifeless husk. These are daunting tasks, no doubt, even if we limit our focus to the southwest; and yet, it’s a critical calling for all of us who care for life and justice.

We are reaching out to others who also view water protection and justice as values worth fighting for. For example, preserving instream flows (what’s left in a stream channel after other allocations) and groundwater protection—from fracking, from water mining, from surface contamination. We offer whatever expertise and resources we can muster, and all the passion we have, for our landbase. We’re ready to work with those who struggle with these problems; we’re also ready to take on whatever role is necessary in support of their fights.

This fight should be shared. Please contact us so we can network with you in pursuit of water, justice, and life.

swcoalition@deepgreenresistance.org

[1] C. Daly, R.P. Neilson, and D.L. Phillips, 1994. “A statistical-topographic model for mapping climatological precipitation over mountainous terrain,” J. Appl. Meteor., 33(2), 140-158, as displayed in http://www.wrcc.dri.edu/pcpn/westus_precip.gif

[2] Melanie Lenart, “Precipitation Changes,” Southwest Climate Change Network, September 18, 2008,  http://www.southwestclimatechange.org/node/790#references

[3] “Glen Canyon Dam,” Wikipedia, accessed December 10, 2012, http://en.wikipedia.org/wiki/Glen_Canyon_Dam. An acre-foot is about 325,853 US gallons.

[4] Brett Walton, “In Drying Colorado River Basin, Indian Tribes Are Water Dealmakers,” Circle of Blue, July 1, 2015, http://www.circleofblue.org/waternews/2015/world/in-drying-colorado-river-basin-indian-tribes-are-water-dealmakers/

[5] Tony Perry, “Despite drought, water flowing freely in Imperial Valley,” Los Angeles Times, April 13, 2015, http://www.latimes.com/local/california/la-me-drought-imperial-valley-20150412-story.html

[6] Rory Carroll, “Fracking In California Used 70 Million Gallons Of Water In 2014,” Huffington Post, http://www.huffingtonpost.com/2015/04/02/fracking-california-water_n_6997324.html

[7] Elizabeth Shogren, “Senate considers legislation to help the West store and conserve water,” High Country News, June 3, 2015, http://www.hcn.org/articles/california-farmers-fear-irrigation-water-will-go-to-salmon-instead

[8] Sarah Tory, “Canadian water for California’s drought?” High Country News, April 28, 2015, http://www.hcn.org/articles/could-canadas-water-solve-californias-drought-1

[9] Ben Goldfarb, “Fowl play: California’s drought fingered in bird deaths,” High Country News, April 2, 2015, http://www.hcn.org/articles/fowl-play-californias-drought-fingered-in-bird-deaths

[10] Keith Schneider, “California Fire Danger Mounts in Sierra Nevada Forests,” Circle of Blue, July 10, 2015, http://www.circleofblue.org/waternews/2015/world/as-california-drought-rebalances-sierra-forests-fire-danger-mounts/

[11] Stephen Dark, “Last Stand: Goshutes battle to save their sacred water,” Salt Lake City Weekly, May 9, 2012, http://www.cityweekly.net/utah/article-35-15894-last-stand.html?current_page=all

[12] Kate Schimel, “Gov. Brown slashes Sacramento Delta environmental protection,” High Country News, May 7, 2015, http://www.hcn.org/articles/gov-jerry-brown-slashes-delta-environmental-protection

[13] Sarah Tory, “Canadian water for California’s drought?” High Country News, April 28, 2015, http://www.hcn.org/articles/could-canadas-water-solve-californias-drought-1

[14] Ed Becenti, “Senate Bill 2109 Seeks to Extinguish Navajo and Hopi Water Rights,” Native News Network, April 4, 2012, http://www.nativenewsnetwork.com/senate-bill-2109-seeks-to-extinguish-navajo-and-hopi-water-rights.html

 

California Tribes Fight for Water Rights

Industrial civilization has always thrived on the flesh and bones of indigenous peoples. Civilization leaves only whatever scraps of land, water or anything else, needed to indigenous populations to survive, which are too trivial or costly to sweep up.

Deep Green Resistance is therefore encouraged to see several California Tribes fighting back. From Circle of Blue:

California Indian Tribe Pursues Rights to Groundwater

TUESDAY, 28 JULY 2015 05:00

A court test of federal water law by the Agua Caliente Band of Cahuilla Indians has implications for the American West.

 

By Brett Walton
Circle of Blue

As California implements a landmark law to balance demand for groundwater with available supplies, an Indian tribe’s lawsuit in federal court has the potential to add new layers of complexity to managing a prized resource that is in short supply during California’s worst ever drought.

The Agua Caliente Band of Cahuilla Indians filed the suit on May 14, 2013 against the Coachella Valley Water District and the Desert Water Agency, two water suppliers in the tribe’s southern California desert region near Palm Springs. The case, straightforward in its goals, addresses two primary concerns: halting groundwater levels that have declined at an average rate of more than one meter per year since 2000, and stemming pollution in the groundwater beneath the 12,545-hectare (31,000-acre) reservation.


I believe you can’t have groundwater management unless you have tribal participation.”
–Anecita Agustinez, tribal policy advisor
California Department of Water Resources

The Agua Caliente complaint reflects the growing willingness of Indian tribes across the American West to pursue, by court action or negotiated settlements, clear legal recognition of water rights that are held in trust by the U.S. government. The flexing of tribal legal muscle, which occurred first for surface water rights in the 1980s, has now expanded to seeking more authority over the use of groundwater. The result of these actions is that a new era of water management in the West is taking shape, one in which the old brokers — the cities, counties, and irrigation districts — will have to make room for another seat at the table.

Just like the tribal lawsuit, California’s 2014 law to fortify supplies and improve distribution of groundwater was prompted by rapidly diminishing aquifers and inadequate authority by local or state officials to curtail indiscriminate use. The convergence of the new state law and the federal lawsuit, along with helping to clarify who in California has access to and control of groundwater, has other wide-ranging implications. The Agua Caliente case could be a model for tribes in California that seek greater influence in water management decisions. And the tribe’s suit could set a precedent for how groundwater rights for Indian tribes are interpreted nationally.

Some see the case, now in the Ninth Circuit Court of Appeals, eventually reaching the U.S. Supreme Court. “The lawsuit is very significant,” Anecita Agustinez, tribal policy advisor for the California Department of Water Resources, told Circle of Blue, explaining that the case could prompt other tribes in California to file claims to groundwater. “I believe you can’t have groundwater management unless you have tribal participation. They live on significant rivers and watersheds.”

Tribes Pursue Water Rights
California is an important legal testing ground. The state is home to more than 100 federally recognized Indian tribes, from the Karuk reservation near Oregon to the Campo reservation on the Mexican border. The Agua Caliente is perhaps the first in the state to seek official recognition and quantification of its legal rights to groundwater. The tribe, by suing for its rights, wants a greater say in how water is managed in the valley.

“These practices are not acceptable for long-term health and viability of the Coachella Valley water supply,” Tribal Chairman Jeff Grubbe said in a statement in March, referring to the shrinking aquifer and decline in water quality. “We called out this detrimental practice and brought it to the attention of the water districts over and over for years simply to be ignored.”

The Lawsuit
The Agua Caliente lawsuit covers a few exacting points of jurisprudence — legal ownership, for example, of the space between soil particles that could be used for storing water underground. But the lawsuit makes two broad claims about water quantity and quality that could rebalance current management practices in the region and state.

The first claim is that the tribe has a federal reserved right to groundwater from two basins beneath the Coachella Valley. A federal reserved right was established in the seminal 1908 Winters decision in the U.S. Supreme Court, which found that the U.S. government, by establishing a reservation, implicitly set aside enough water for the tribe to make a living from the land. On March 20, 2015, the U.S. District Court of the Central District of California ruled that the Agua Caliente do have a reserved right to groundwater. An appeal of that ruling is being heard by the Ninth Circuit.

The second broad claim is that the valley’s two water agencies — Coachella Valley Water District and Desert Water Agency — are polluting the aquifer with imported Colorado River water, which is saltier than the local sources. The agencies pour Colorado River water, which is delivered by canals, into sandy-bottomed percolation basins throughout the valley to bolster sagging groundwater levels. The agencies acknowledge that the Colorado River supplies are saltier but do not admit that the practice of recharging the aquifer has increased its salinity. The Agua Caliente argue that their groundwater rights entitle them to water without added salts. This claim is being litigated in a second phase of the lawsuit.

A third phase of the lawsuit will consider numbers: How much groundwater do the Agua Caliente own? Do they have a right to water of a certain quality? What should the standard be? Only phase one — the determination that the tribe does indeed have a right to groundwater – has been completed by the district court.

Local and State Implications
The lawsuit makes the Coachella Valley water agencies nervous. The changes that are in store if the Agua Caliente are granted rights to a significant portion of the aquifer could be substantial.

THE COACHELLA VALLEY, CALIFORNIA, AUGUST 2009: Chris Thomas, 44, at work as a Zanjero, (Ditchrider,) regulating waterflow to agriculture in The Coachella Valley, California, August 10 2009. Zanjero's deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. "You get a feel for it," say Thomas, "its all about keeping everyone happy within the resources available. Zanjeros typically work 365 days a year, there is always someone watching the output on the pumps and gates." Zanjeros typically work ten days on and 4 days off, 16 hours of the day are covered and 8 hours of the day the Zanjeros are on standby. (Photo by Brent Stirton/Reportage by Getty Images.)

THE COACHELLA VALLEY, CALIFORNIA, AUGUST 2009: Chris Thomas, 44, at work as a Zanjero, (Ditchrider,) regulating waterflow to agriculture in The Coachella Valley, California, August 10 2009. Zanjero’s deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. “You get a feel for it,” say Thomas, “its all about keeping everyone happy within the resources available. Zanjeros typically work 365 days a year, there is always someone watching the output on the pumps and gates.” Zanjeros typically work ten days on and 4 days off, 16 hours of the day are covered and 8 hours of the day the Zanjeros are on standby. (Photo by Brent Stirton/Reportage by Getty Images.)

“There’s a great deal of speculation,” Katie Ruark, spokeswoman for Desert Water Agency, told Circle of Blue. “The tribe hasn’t said what they plan to do with their rights.” Ruark mentioned water rate increases — if the agency was forced to buy back water from the tribe — as one potential effect. Then there is the tribe’s well-documented displeasure with the decline in groundwater levels, which could prompt a reduction in pumping.

Agua Caliente’s spokeswoman Kate Anderson referred Circle of Blue to the tribe’s website and did not respond to follow up questions about the tribe’s role in managing the region’s aquifers and what changes it would like to see.

The lawsuit coincides with a transition in California’s groundwater practices. The state’s groundwater reserves plunged to record lows in the last four years of drought. Little snowmelt or rainfall percolated into the ground while prodigious amounts of water were pumped out to sustain the country’s largest agricultural economy. Thousands of rural wells have gone dry.

Farmers and cities in most of the state were allowed to pump without limits because there was no authority to regulate groundwater. That changed last September when Gov. Jerry Brown signed the Sustainable Groundwater Management Act, which requires the state’s most important groundwater basins to form management agencies by 2017 and align water withdrawals with water availability by 2040.

Anecita Agustinez, the state’s tribal policy advisor for water, said that how the tribes fit into the evolving management picture is still being discussed. Tribes are not allowed to form their own groundwater management agency, but they can participate in a joint effort with cities, farm districts, and other local agencies. She called the integration of tribal authority a “potential hurdle.”

“It’s all very new,” Agustinez said. “We’re working on guidelines now.” She said that the documents that local agencies must fill out when they form a management body asks whether they consulted with tribes.

Integrating tribal claims represent a new demand in the system and could displace existing water uses, not just for California but for all western states, according to Steve Greetham, chief general counsel for the Chickasaw Nation, in Oklahoma. “It’s a challenge when looking at potentially thousands of property owners who have a stake in the outcome,” he told Circle of Blue.

In Arizona, which has settled more Indian water claims than any other state, the tribes have emerged as co-managers and essential partners with the state’s cities and water agencies.

If the Agua Caliente are granted rights to a certain quantity and quality of water, as they seek in the lawsuit, they will force the issue in the Coachella Valley and potentially open a door for other groundwater claims in California.


Indian Groundwater Rights in State and Federal Courts
1976:
The U.S. Supreme Court, in Cappaert v. United States, ruled that federal reserved rights extend to groundwater. The case involved reserved rights for a national monument. The U.S. Supreme Court has not considered tribal groundwater rights, but state courts have.
1999:
When it divided the waters of the Gila River Basin, the Arizona Supreme Court recognized that tribes have a right to groundwater. The court, however, constrained that right. The justices ruled that the right to groundwater existed only when surface waters were “inadequate” for meeting the purposes of the reservation. The court did not define inadequate.
2002:
The Montana Supreme Court argued that a tribe’s federally guaranteed right to water, known since a 1908 U.S. Supreme Court decision as a ‘Winters right’, included a right to groundwater, in Confederated Salish and Kootenai Tribes v. Stults.
2005:
U.S. District Court for the Western District of Washington, in United States v. Washington Department of Ecology, that Winters rights applied to the water beneath the Lummi Reservation in northwest Washington.


 

Federal Implications

How a groundwater right would work in practice in California, where “pump as you please” is the current operating principle, is an unresolved question. Courts elsewhere have faced the same issue and have ruled in favor of tribes. In the last 15 years, the Arizona and Montana Supreme Courts, and a U.S. district court in Washington State determined that Indian tribes do have rights to groundwater based on the reserved rights doctrine. The U.S. district court decision in the Agua Caliente case follows that precedent.

“There’s a trend toward the courts finding that tribes have a right to groundwater,” Ryan Smith, a lawyer at Brownstein, Hyatt, Farber, and Schreck who specializes in Indian law, told Circle of Blue.

The U.S. Supreme Court has not heard a case pertaining to groundwater for tribes. Though it ruled in 1976, in Cappaert v. United States, that groundwater is a reserved right, the nation’s highest court has not set a national standard for applying the reserved right doctrine to groundwater. Without a clear national definition, each state divides its groundwater for tribes in a different way. Arizona, for instance, says that tribes have groundwater rights only when surface water is insufficient for the reservation.

The lack of a standard has “muddied the waters” at the state level, Greetham asserted. “As a tribal advocate, I think that’s terrible,” Greetham told Circle of Blue. “[The states] don’t all apply the doctrine with the same rigor.”

The variability is one reason that the U.S. Supreme Court could take up the Agua Caliente case. Roderick Walston, the attorney representing Desert Water Agency, told Circle of Blue he thinks that the losing side will appeal to the U.S. Supreme Court and there is a good chance the justices will review it. Smith agreed, saying that the court might want to conclusively settle the matter.

Others argue that the precedent set by the lower courts is compelling evidence that a groundwater right does exist and that any U.S. Supreme Court decision would refine the definition of how to apply it.

“I think there is a certain level of optimism on the part of non-tribal actors that the Supreme Court will address Winters rights and more narrowly define them,” Greetham said. “Non-tribal actors are fooling themselves if they think the Supreme Court will issue more restrictive rights.”

The legal right to groundwater, in other words, is likely to be upheld. For California agencies, it is another factor to consider as they follow the long path toward groundwater sustainability.

Author: Brett Walton Brett Walton is a Seattle-based reporter for Circle of Blue. He writes our Federal Water Tap, a weekly breakdown of U.S. policy. Interests: Southwest, Pacific Northwest, Pricing, Infrastructure.

The Drying of the Colorado River Basin

Perhaps more than any other area of North America, the American Southwest faces water shortages, just as demands for water increase. These colliding forces both owe their existence to industrial civilization.

Deep Green Resistance chapters across the Southwest recognize the imminent catastrophe and view the preservation of our natural water supplies and systems, and the protection of indigenous peoples’ rights to their water and landbase, as our top priority.

The following article, from  Circle of Blue, describes some of the background of the state of affairs surrounding water in the Southwest, as well as the tensions arising when demand and supply head in opposite directions. As a brief aside, we note the insanity behind the statement that “The Colorado River is fully allocated.” Only those too steeped in the madness of industrial civilization to think anymore would fail to blink at this.

In Drying Colorado River Basin, Indian Tribes Are Water Dealmakers

WEDNESDAY, 01 JULY 2015 06:00

Native Americans hold 20 percent of the basin’s water rights. How they use their water will shape the future of the Southwest.

Photo © J. Carl Ganter / Circle of Blue Governor Stephen Roe Lewis, leader of the Gila River Indian Community, stands in the dry bed of the Gila River, outside of Sacaton, Arizona. Elected last year, Lewis proclaimed 2015 the Year of Our Water Rights for his tribe. Click image to enlarge.

Photo © J. Carl Ganter / Circle of Blue
Governor Stephen Roe Lewis, leader of the Gila River Indian Community, stands in the dry bed of the Gila River, outside of Sacaton, Arizona. Elected last year, Lewis proclaimed 2015 the Year of Our Water Rights for his tribe. Click image to enlarge.

By Brett Walton
Circle of Blue

Mired in drought and torched by one of the hottest years ever measured, the seven states of the Colorado River Basin are acutely aware of how a desert can bully water supplies. They are not alone. In this cauldron of collaboration and competing interests is a collection of players who are just as significant for managing and responding to water scarcity but attract much less attention: the basin’s 29 federally recognized Indian tribes.

With the oldest claims to water, the tribes command a considerable role in directing the region’s future. Combined, they hold rights to a substantial portion of the Colorado River’s flow: roughly 20 percent, or 2.9 million acre-feet, which is more water than Arizona’s allocation from the river. The tribal share, moreover, will increase, perhaps by as much as hundreds of thousands of acre-feet as the 13 tribes without confirmed rights settle their claims with federal and state governments.

“The tribes are the huge unknown.”
–Robert Glennon, law professor
University of Arizona

Years of careful negotiations, spurred by a desire to avoid long-running court battles, produced legal settlements that provide water for tribes, cities, and industries. Beneficial to all sides, the settlements were a catalyst for urban development and a tool for funding Indian water systems. Perhaps more importantly, the settlements are the foundation of a partnership, an inescapable union, between tribes and their neighbors, a union that will grow in importance as water becomes scarcer in the warming and drying American West.

“We’ve developed tremendous and valuable relationships with each other from being in the same room for years,” Kathryn Sorensen, director of the Phoenix water department, told Circle of Blue. “Water is always important and contentious in Arizona. But having relationships helps you have conversations when you want new solutions.”

“Solutions” is the word of the moment in the Colorado River Basin, and for good reason. California is suffering a drought emergency that reveals the paramount significance to Southern California of water diverted from the Colorado. Last week, water levels in Lake Mead, formed from the Colorado and the nation’s largest reservoir, dropped below 1,075 feet in elevation, the threshold for declaring the basin’s first mandatory water cuts if such low levels persist to January, the benchmark month for such a declaration.

Attempting to delay the day of reckoning, the seven basin states announced last year a sheaf of proposals to conserve water and store the savings in Lake Mead. In the long run, river flows could decrease by 9 percent by 2060 because of climate change, according to a 2012 federal government study. The realization of water limits has come swiftly and forcefully.

The Colorado River is fully allocated, which means all the water is claimed. Some cities and farm districts feared that tribal water settlements would create conflict by taking water away from current users. Those worries have not, to this point, materialized. In pursuit of their water rights, the tribes have been the basin’s dealmakers. They sold rights for money to build systems that will deliver water to reservation faucets. They leased water to cities, to bring in additional funds for tribal development. They participate in programs that store water underground, to bolster depleted aquifers, and leave water in rivers, to benefit ecosystems.

But beneath the current amity, there is still concern. Tribes do plan to use more water once they have the money to build out irrigation systems and develop commercial enterprises. A group of the largest tribes persuaded the Bureau of Reclamation to study the effects on the Colorado River Basin as more tribal rights are exercised. Reclamation, the federal agency that manages the basin’s largest dams, calls tribal water use a “critical uncertainty.”

How tribal water use evolves in the decades to come — and the time scale is that long — is perhaps the biggest question mark on the demand side of the Colorado River’s water availability equation.

“The tribes are the huge unknown,” Robert Glennon, University of Arizona law professor, told Circle of Blue. “This is a huge issue.”

Adding Flexibility to the System
The tribes of the Colorado River Basin are a diverse group. The Navajo Nation, the largest, straddles three states and has claims to water from multiple tributaries. The land of the Colorado River Indian Tribes lies in the river’s floodplain in Arizona and California and covers large tracts of irrigated agriculture. The Southern Utes, located in the Colorado quadrant of the Four Corners region, are known for fossil fuel development.

Map © Kaye LaFond / Circle of Blue This map shows the 29 federally recognized tribes in the Colorado River Basin. Click here for an interactive version that describes each tribe’s water rights. Click image to enlarge

Map © Kaye LaFond / Circle of Blue
This map shows the 29 federally recognized tribes in the Colorado River Basin. Click here for an interactive version that describes each tribe’s water rights. Click image to enlarge

 

Accordingly, each tribe’s goals for its water rights are unique, said Doug Kenney, a University of Colorado law professor who studies the basin.

“I’m a believer that there is a great opportunity for the tribes to be a part of the basin’s solutions,” Kenney told Circle of Blue. “Historically the water community has feared the day when tribes put water to use. The way I look at it, a lot of tribes are interested in doing creative arrangements.”

Creative, Kenney said, means getting an economic benefit without taking water out of the river — using water, for example, to propel a nascent tourism industry by ensuring sufficient stream flows for rafting or fishing. Creative also means selling the temporary right to use water to others, an action called leasing, which is common in the Phoenix metro area. Home to 4.5 million people, Phoenix and its Sonoran Desert neighbors are the biggest beneficiaries of these creative arrangements.

Phoenix leases water from three tribes, and a fourth agreement is nearing completion. The terms of the deals are straightforward. Phoenix makes an upfront payment, typically millions of dollars, to the tribe and pays an annual charge to cover the cost of pumping the water to operators of the Central Arizona Project (CAP) canal, which transports Colorado River water hundreds of miles to the dry heart of the state. (See sidebar for a list of leases and payments.)

Phoenix Water Leases


Tribe                                                                           Amount       Price            Length

of Water                            of Lease

(acre/ft per yr)                           (years)

Fort McDowell-Yavapai Nation                              4,300       $US 5.5m            99
Gila River Indian Community                                 15,000     $US 27.2m       100
Salt River-Pima Maricopa Indian Community      3,023      $US 3.6m            99

White Mountain Apache (pending)                          3,505      $US 10m             99

Phoenix holds leases from three tribes, which account for roughly 3 percent of its surface water supply. A fourth lease is pending court approval.


 

Most of Phoenix’s leases run for 100 years. Together, they provide roughly 3 percent of the city’s surface water supply. The importance of the leases is much larger than that fraction, according to Sorensen, head of the water department. Leases allow Phoenix to conserve its groundwater reserves for drought emergencies and urban growth, she said.

Phoenix, Glendale, Scottsdale, and dozens of other cities in Maricopa and Pinal counties grew rapidly three decades ago with Colorado River water shipped through the Central Arizona Project. With imported water supplementing the Gila, Salt, and Verde rivers and relieving pressure on depleted groundwater reserves, a modern oasis society expanded. The region’s population is double what it was in 1990.

Leasing is a popular practice. In 2015, roughly 8 percent of the CAP deliveries were water leased from tribes. In Arizona, however, leasing is restricted by legal decree to the tribes that receive CAP water. The tribes on the Colorado River mainstem cannot rent out their water, a prohibition that some tribes would like to overturn. “Tribes are emerging participants and leaders for water management in central Arizona,” Chuck Cullom, Colorado River manager for CAP, told Circle of Blue.

How Much Water Will the Tribes Use?
Still, water managers and other Colorado River users worry that water supplies will diminish as tribes expand irrigation or develop water-consuming businesses on their reservations. The concerns are heightened by the reticence among tribal leaders to publicly disclose their plans.

Photo © J. Carl Ganter / Circle of Blue The Central Arizona Project canal passes groundwater recharge ponds to the north of Scottsdale. The 540-kilometer (336-mile) canal delivers Colorado River water to cities, farms, and tribes in the interior of Arizona. Click image to enlarge.

Photo © J. Carl Ganter / Circle of Blue
The Central Arizona Project canal passes groundwater recharge ponds to the north of Scottsdale. The 540-kilometer (336-mile) canal delivers Colorado River water to cities, farms, and tribes in the interior of Arizona. Click image to enlarge.

 

In one of the rare public presentations, Darryl Vigil, chairman of the Ten Tribes Partnership, a group of tribes holding the largest water rights in the basin, testified at a U.S. Senate Energy and Natural Resources subcommittee hearing on July 16, 2013. Vigil explained that the tribes expect the federal government to exercise its responsibility to protect tribal rights from water users with more influence.

“The Ten Tribes are very concerned that while they struggle to put their water to use, others with far more political clout are relying on unused tribal water supplies and will seek to curtail future tribal water use to protect their own uses,” Vigil told the committee.

In response, the Bureau of Reclamation is undertaking an assessment of tribal water use. Due in mid-2016, the study will analyze the effects on farms, cities, and industries in the basin as the tribes seek to expand irrigated agriculture, develop commercial enterprises, or otherwise increase water use.

Circle of Blue attempted to contact Vigil for several months for an interview, but he did not return phone or email messages. Few tribes, for that matter, were willing to discuss their water plans. Circle of Blue sought interviews with leaders of seven tribes in the basin — Gila River Indian Community, Navajo Nation, Jicarilla Apache Nation, Colorado River Indian Tribes, Fort McDowell Yavapai Nation, Salt River-Pima Maricopa Indian Community, and San Carlos Apache Tribe.

The president of the Gila River Indian Community, who declared 2015 the Year of Our Water Rights for his tribe, agreed to an interview but canceled at the last minute and did not reschedule. Carole Klopatek, who represents the Fort McDowell Yavapai, told Circle of Blue, “We keep our water right plans confidential within the council and do not speak with the press.”

Only the San Carlos Apache spoke with Circle of Blue.

Except for a mining company that wants to open a copper mine near the reservation, the San Carlos Apache have good relationships with its non-tribal neighbors, according to Tao Ettison, the tribe’s vice chairman.

Half of the tribe’s water rights are used on the reservation and half are leased, Ettison explained. The tribe is looking for new uses for its rights, namely through farming.

“We have several sites identified for irrigation expansion,” Ettison told Circle of Blue. “We’re progressively working at it every day.”

Settlements, Not Litigation
A tribe’s right to water is derived from the U.S. Supreme Court’s seminal Winters decision, in 1908. In Winters, the judges ruled that the creation of an Indian reservation by the U.S. government carried with it an implied right to water. Known as federal reserved rights, each tribe’s claims dated to the year the reservation was established. In western water law, which is generally based on a doctrine of first-come, first-served, the Winters decision put the tribes at the head of the line for water — before the miners, farmers, and cities that sprouted in the West after the native lands were forcibly cleared.

Photo © J. Carl Ganter / Circle of Blue Irrigated fields border the Colorado River on the Fort Mojave Indian reservation, in Arizona. Unlike their counterparts in interior Arizona, the five tribes located along the banks of the Colorado are not allowed to lease their water to cities and industries off the reservation. Click image to enlarge

Photo © J. Carl Ganter / Circle of Blue
Irrigated fields border the Colorado River on the Fort Mojave Indian reservation, in Arizona. Unlike their counterparts in interior Arizona, the five tribes located along the banks of the Colorado are not allowed to lease their water to cities and industries off the reservation. Click image to enlarge

 

The legal agreements that seal a tribe’s water rights are known as “settlements.” Sixteen tribes have reached settlements with federal and state governments since 1978. More settlements are coming. Thirteen of the 29 tribes in the Colorado River Basin have claims to water that are not fully quantified, including the Navajo Nation, which has the largest outstanding claims.

Settlements are now the favored option for sorting out water rights, but it was not always the case.

The court process to quantify these rights is expensive, uncertain, and lasts for decades. The Aamodt case in New Mexico, for instance, was filed in U.S. district court in 1966. The case was still in court in 2000, when the parties began orchestrating an agreement outside the halls of justice. A deal was signed in 2010, bringing an end to the longest-running water rights case in the country.

Even if the court process moves quickly, the tribes are not guaranteed a favorable outcome. A New Mexico court, to cite an extreme example, awarded the Mescalero Apache just 13 percent of the water it sought.

“If you go to court, you get paper rights, not funding,” Nathan Bracken of the Western States Water Council told Circle of Blue. “It’s a tribal incentive to collaborate. The state wants to protect existing uses. The settlements are a way to minimize impacts to non-tribal users. You can’t get these compromise solutions through a court order.”

To avoid those pitfalls, tribes and existing water users prefer settlements, according to John Echohawk, executive director of the Native American Rights Fund, one of the early advocates for settlements. The first settlement, with the Ak-Chin tribe, was signed in 1978.


Federal Agency Studies Tribal Water Use
In 2012, the Bureau of Reclamation released a detailed analysis of water supply and demand in the Colorado River Basin. Detailed, but not comprehensive: the tribes were not initially included on the study’s planning committee. After protesting the exclusion, they were a late addition to the assessment.
Reclamation is now correcting its omission. The agency is in the middle of a companion study to analyze current tribal water use and estimate future demands. The study will assess how farms, cities, or industries that rely on unused tribal water will be affected by an increase in water use on the reservations.
“The study is important to us,” Reclamation’s Carly Jerla, a study coordinator, told Circle of Blue. “It was a commitment we made coming out of the [2012] basin study. It brings the tribal perspective to the discussion of future water imbalances.”
The study, conducted with the Ten Tribes Partnership, a group of tribes holding the largest water rights, will be completed in early 2016, Jerla said.


Negotiations produce broad agreements that address topics that are beyond the court’s domain: fishing rights, community development, ecosystem protection. The Zuni settlement, for instance, included money earmarked for restoring a sacred wetland. The Fort McDowell settlement added $US 23 million in federal money to the tribe’s community development fund.

The Obama administration made Indian rights settlements a priority since taking office, having signed six settlements. The fiscal year 2016 budget request includes $US 112 million to implement the provisions, such as constructing drinking water systems.

“Settlements have been, and should remain, a top priority for the federal government,” said Michael Connor, deputy secretary of the Interior Department, at a Senate Indian Affairs committee hearing on May 20.

Just as important, according to those who have participated in settlements, are the relationships that form during negotiations. “We find a way to live together on a limited water supply,” Echohawk told Circle of Blue. “The tribes are treated fairly and the impact to non-Indian interests is minimized. The most difficult part is getting Congress to fund the settlement.”

Facing a Future of Water Scarcity
The power of settlements to shape the future is already apparent. New Mexico, for one, has set aside a portion of its unused share of the San Juan River, a Colorado River tributary, for tribal water rights settlements, according to the New Mexico Office of the State Engineer.

Brian Parry, of the Bureau of Reclamation’s Native American Affairs program, negotiated several settlements in New Mexico: the Navajo-Gallup, the Aamodt, and the Jicarilla-Apache. He witnessed the swaps and trades that kept the deals on track. That persistence through decades of deliberation will be even more important as the basin warms and dries, as the cities grow, and as tribes put more of their water to use on the reservation.

“In the settlements we have people talking to people,” Parry told Circle of Blue. “Irrigation districts are taking a little less irrigation water, and tribes are trading water for more infrastructure. But it’s hard and it’s going to continue to be hard.”

“Tension is always going to exist,” Parry added. “Water is a tremendous concern. Everybody needs it and wants it. The question for these settlements is, what can be done to harm as few people as possible? The tribes are good about leaving water for their neighbors and entering into compacts for shortage sharing when times get rough — even when a court wouldn’t compel them to do it.”

 

Hundreds Gather at Oak Flat to Fight for Sacred Apache Land

Resistance to American Fascism grows.  We in Deep Green Resistance share the outrage of the San Carlos Apache tribe over the attempted incursion on their land, conspired to by clever duo of the American government and mining interests. We hope you will join those who have committed to protecting the land, and all the life it hosts.

Protesters Continue to Gather at Oak Flat

Protesters Continue to Gather at Oak Flat

By Lee Allen, Indian Country Media Network

As the morning sun rose high enough to burn off the chilly overnight temperatures, mesquite fires scattered throughout the Oak Flats Campground offered a warm welcome to a special day for Arizona’s San Carlos Apache tribe.

Michael Paul Hill/Facebook Protesters gathered for a day of spiritual succor at Oak Flat, the sacred Apache site that was all but handed over to Resolution Copper in the latest must-pass federal defense-spending bill.
Michael Paul Hill/Facebook
Protesters gathered for a day of spiritual succor at Oak Flat, the sacred Apache site that was all but handed over to Resolution Copper in the latest must-pass federal defense-spending bill.

Some 300 tribal members and supporters from across the country had gathered to protest the infringement of traditional Apache holy lands. There were Chippewa, Navajo, Lumbi, Pauite, Havasupai, and representatives of the National American Indian Movement and the National American Indian Veterans group, as well as non-indigenous supporters representing myriad concerns including those of environmentalists and other lovers of nature. All were furious at Congress’s sneaky transfer of sacred Apache land to a mining company and vowing to do what they could to see that it didn’t happen.

“What was once a struggle to protect our most sacred site is now a battle,” said San Carlos Apache Tribal Chairman Terry Rambler, organizer of the grassroots movement aimed at stopping transfer of hundreds of acres of ceremonial land to those who would dig a mile-wide hole in the ground in a search for copper.

RELATED: San Carlos Apache Would Get Biggest Shaft Ever in Copper Mine Land Swap

San Carlos Apache Leader Seeks Senate Defeat of Copper Mine on Sacred Land

Arizona’s Apache Tribe represents a culturally rich society with heritage tied to Mother Earth. As a people, they extend a Hon Dah welcome greeting to all who wish to share their culture and history. But now they are fighting to keep their holy lands culturally sacrosanct.

“Our homelands continue to be taken away,” said former San Carlos Chairman Wendsler Nosie Sr., decrying what he termed the dirty way in which a land-swap rider had been attached to a must-pass bill that sailed through Congress and was signed into law by President Barack Obama. The amended legislation, with the support of Arizona Senator John McCain, was “an action that constitutes a holy war, where tribes must stand in unity and fight to the very end,” according to Nosie.

The legislation that the former chairman termed “the greatest sin of the world” is the Southeast Arizona Land Exchange and Conservation Act, which gives a 2,400-acre tribally sacred site to a global mining entity, Resolution Copper, that wants to destroy its natural state with a massive mine intended to extract an ore body located 7,000 feet below ground level. That ground is hallowed to the Apache peoples whose reservation border is just east of the proposed mine at Oak Flat, home to Indigenous Peoples since prehistoric times, a place where acorns and medicinal herbs are gathered and coming-of-age ceremonies are held.

Kicked off by earlier protests in both Tucson and outside Senator McCain’s Phoenix office, the multi-pronged awareness approach to mitigate the potential fate of Oak Flat picked up momentum via a two-day, 44-mile, march from the San Carlos tribal headquarters and culminated in a weekend-long Gathering of Nations Holy Ground Ceremony, “A Spiritual Journey to a Sacred Unity,” at Oak Flat.

Following a holy ground blessing, the morning was filled with traditional, cultural and religious dances, with Rambler dancing and Wendsler joining the group of drummers. The weekend of solidarity was epitomized by guest speaker and activist preacher John Mendez.

“What the system doesn’t know, what Resolution Copper doesn’t know, is there is nothing that can break our spirit and keep us from moving forward to victory,” Mendez told the assembled. “This is a protracted struggle, but if we stay true to task, we will win. A single flame can start a large fire, and we’ve created a fire that cannot be extinguished.”

The Apache struggle has become part of the ongoing battle worldwide for Indigenous Peoples protecting sites that are sacred to them because of the places’ importance to both spiritual and physical survival.

“This issue is among the many challenges the Apache people face in trying to protect their way of life,” Chairman Rambler toldIndian Country Today. “At the heart of it is freedom of religion, the ability to pray within an environment created for the Apache. Not a manmade church, but like our ancestors have believed since time immemorial, praying in an environment that our creator god gave us. At the heart of this is where Apaches go to pray—and the best way for that to continue to happen is to keep this place from becoming private land.”

RELATED: San Carlos Apache Leader: ‘What Was a Struggle to Protect Our Most Sacred Site Is Now a Battle’

Yavapai-Apache Chairman: ‘Oak Flat Holy Sites are Central to Apache Spiritual Beliefs’

Spiritual Unity Can Save Sacred Apache Land From Mining

Despite Obama’s signature on the measure, the administration has expressed displeasure as to how the legislation flew under the radar to become law.

“I am profoundly disappointed with the provision of the bill that has no regard for lands considered sacred by nearby Indian tribes,” said U.S. Secretary of the Interior Sally Jewell.

The passage has created numerous schisms.

“The nearly decade-long fight over access to the federally protected land has ignited a feud that has split families and ended lifelong friendships,” the Los Angeles Times noted.

It also has united those who oppose Rambler, and the ongoing, nearly 10-year-old struggle has garnered support from more than 500 tribes, many who face similar situations with mining or development proposed in areas that other Native Americans consider holy. If this can happen to the Apache nation, it can happen to any other nation was the general feeling.

“We have a similar situation with an effort to build a tramway down to the bottom of the Grand Canyon,” said Lorenzo Robbins, a Navajo from Northern Arizona.

“We’re fighting a strong battle to protect Mother Earth from uranium mining,” said Uqalla, a member of the Havasupai tribe. “The responsibility of all indigenous spiritual carriers is to protect the earth.”

Rambler, welcoming the support, said it is indeed everyone’s battle.

“We must stand together and fight,” Rambler said. “We’re drawing a line in the sand on this one. We’re against this specific project because it’s going to desecrate and destroy this whole area and the Apache way of life we are accustomed to.

“This gathering and our direction in the future is to keep an awareness of the situation in the public mind, in the mind of Congress, and to let everyone know this issue is not going to go away,” Rambler said. “We need to stay on top of it every day to make sure our voices are heard. We’re praying to our creator god, asking him to guide us throughout this whole process so that we can win in the end and preserve what he created for us.”

Video: What Resolution Copper Wants to Inflict on Apache Sacred Land

Deep Green Resistance Stands with the San Carlos Apaches in Protecting Oak Flat from Copper Mining

San Carlos Apache Ceremony

Image Credit: Ryan Martinez Lewis

Deep Green Resistance (DGR) is dedicated to the fight against industrial civilization and its legacy of racism, patriarchy, and colonialism. For this reason, DGR would like to publicly state its support of the San Carlos Apache tribe and the residents of Superior, AZ in the fight to protect Oak Flat from the destructive and unethical practices of foreign mining giant Rio Tinto.

Background

For over a decade the San Carlos Apache tribe and supporters have been fighting against profit-driven attacks on their land by the Superior, AZ based company Resolution Copper (RC), a subsidiary of the international mining conglomerate Rio Tinto. The foreign Rio Tinto is an Anglo-Australian mining company with a shameful history of environmental degradation, human rights abuses, and consorting with oppressive regimes around the globe.

Resolution Copper plans a massive deep underground copper mine in the Oak Flat area using a technique called block caving, in which a shaft is drilled more than a mile deep into the earth and the material is excavated without any reinforcement of the extraction area. Block caving leaves the land above vulnerable to collapse.

Despite this, Resolution Copper is set to acquire 2,400 acres of the federally protected public land in the Tonto National Forest in southeast Arizona in exchange for 5,000 acres in parcels scattered around the state. The 2,400-acre land, part of San Carlos Apache’s aboriginal territory, includes Oak Flat, Devil’s Canyon, and nearby Apache Leap – a cliff where Apaches jumped to their death to avoid being killed by settlers in the late 19th century. The San Carlos Apaches and other Native people hold this land as sacred, where they conduct ceremonies, gather medicinal plants and foods, and continue to build connections with the land. The now public land is held in trust by the federal government and is also used by non-Native nature lovers for hiking, camping, bird watching and rock climbing, and is used for field trips by Boy Scout groups.

Recent Activity

On December 4, 2014 the House passed the National Defense Authorization Act (NDAA), which included the Oak Flat Land exchange as an attachment to the annual must-pass defense bill. This particular version of the land exchange included in the NDAA (the “Southeast Arizona Land Exchange and Conservation Act of 2013”) is the 13th version since the bill was first introduced in Congress in 2005 by former Congressman, Rick Renzi (later convicted in 2013 of multiple counts of corruption, including extortion, racketeering and other federal charges). AZ Senators McCain and Flake, responsible for sneaking this unrelated attachment into the NDAA, subverted the will not only of Native American Tribes, conservation organizations, the Superior Town Council, and others, but the will of the United States Congress which has forcefully rejected the land exchange for nearly 10 years. Flake, who previously worked for Rio Tinto at their uranium mine (co-owned by the Iranian government) in Namibia, acknowledged the bill could not pass the US Congress on its own merits.

Shortly after passing through the House, the NDAA was signed into law by President Obama on December 19, 2014, exactly 5 years after he signed the “Native American Apology Resolution,” a little-noticed expression of regret over how the U.S. had abused its power in the past.

The Southeast Arizona Land Exchange and Conservation Act demonstrates a total disregard for Native American concerns. Resolution Copper has also openly admitted to the fact that their process of mining would create significant land cracking and eventually subsidence. Another grave concern is the permanent damage to surface and groundwater. This mine will deplete enormous quantities of water and pollute it, which will devastate local communities.

Oak Flat is also a rare desert riparian area. Less than 10% of this type of habitat remains in Arizona. The land exchange would allow mining companies to avoid following our nation’s environmental and cultural laws and would bypass the permitting process all other mines in the country have followed. Since this mining would, by design, lead to the complete destruction of the Oak Flat area and potentially impact both Apache Leap and Gaan Canyon, the San Carlos Apache Tribe (along with over 500 other tribes across the country) strongly opposes it and the illegal land exchange.

San Carlos Apache Ceremony 2

Call for Solidarity

Indigenous peoples have always been at the forefront of the struggle against the dominant culture’s ecocidal violence. Beneath the violations of US law lies the glaring threat of sacred Apache land being further harmed and colonized. If RC is allowed to follow through with its mining plan, not only would this land be stolen from the Apaches, but it would be rendered unrecognizable.

There is a monumental need for solidarity work to save Oak Flat. The only acceptable action on the part of Resolution Copper is immediate cessation of any and all plans to mine in the ancestral home of the Apache people; anything else will be met with resistance, and DGR will lend whatever support it can to those on the front lines. The time to act is now!

For more information or to lend support, please visit the Arizona Mining Reform Coalition.

**DGR recognizes that members of settler culture are living on stolen land in the midst of a current and ongoing genocide of indigenous people and culture. We encourage those who wish to be effective allies to indigenous people to read our Indigenous Solidarity Guidelines.

References

“Apache Resistance to Copper Mining in Arizona.” Survivalsolidarity.wordpress.com. <http://survivalsolidarity.wordpress.com/apache-resistance-to-copper-mining-in-arizona/>
“Cultural and Religious Concerns.” Accessfund.org. <http://www.accessfund.org/site/c.tmL5KhNWLrH/b.8113233/k.D328/Cultural__Religious_Concerns.htm>
McAuliff, Michael. “Congress Raids Ancestral Native American Lands With Defense Bill.” Huffingtonpost.com.<http://www.huffingtonpost.com/2014/12/03/ndaa-land-deals_n_6264362.html>
McKinnon, John D. “US Offers An Official Apology to Native Americans.” blogs.wsj.com. <http://blogs.wsj.com/washwire/2009/12/22/us-offers-an-official-apology-to-native-americans/>
“President Obama signs land exchange into law signaling new phase in the protection of Oak Flat.” Azminingreform.com. <http://www.azminingreform.com/content/president-obama-signs-land-exchange-law-signaling-new-phase-protection-oak-flat>
“Resolution Copper.” Gpo.gov. <http://www.gpo.gov/fdsys/pkg/CHRG-112shrg75271/html/CHRG-112shrg75271.htm>
“Rio Tinto: A Shameful History of Human and Labour Rights Abuses And Environmental Degradation Around the Globe.” Londonminingnetwork.org. <http://londonminingnetwork.org/2010/04/rio-tinto-a-shameful-history-of-human-and-labour-rights-abuses-and-environmental-degradation-around-the-globe/>
Toensing, Gale Courey. “San Carlos Apache Leader Seeks Senate Defeat of Copper Mine on Sacred Land.” Indiancountrytodaymedianetwork.com. <http://indiancountrytodaymedianetwork.com/2014/12/08/san-carlos-apache-leader-seeks-senate-defeat-copper-mine-sacred-land-158181>
Wagner, Dennis. “Arizona’s ex-Rep. Rick Renzi gets 3-year prison term.” usatoday.com. <http://www.usatoday.com/story/news/politics/2013/10/28/rick-renzi-arizona-prison-sentence/3288937/>