No Cause For Worry With Court Notice On Water Rights

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by David A. Brown, attorney

If you are like most people, you get nervous when a court mails an official notice to you that you were not expecting. However, if you have water rights in the Little Colorado River basin and you recently received a Notice of Proposed Settlement from Judge Mark Brain, you have no reason to worry.

The notice from Judge Brain gives you an opportunity to file an objection to the “Amended and Restated White Mountain Apache Tribe Water Rights Quantification Agreement,” which settles the tribe’s claims in both the Little Colorado River and the Gila River basins. These basins are the subject of two major court cases that are generally known as the Little Colorado River adjudication and the Gila River adjudication, respectively. It is rare that a tribe or other water user has claims in both adjudications.

Here in the Little Colorado River basin, the settlement is the result of many years of negotiating by the cities and towns of Show Low, Snowflake, Taylor, Springerville, Eagar, Winslow and Holbrook, the state and federal governments, various local irrigation companies and districts, and of course, the White Mountain Apache Tribe.

In 2010, the settlement was approved by Congress and signed by the president. We are now at the final stage of implementing the settlement, which is to have it approved through the Little Colorado River and Gila River adjudication courts.

The White Mountain Apache Tribe has struggled to provide a reliable drinking water source for its people. During the summer months, the well fields often have shortages. It is extremely expensive to develop water resources beyond the well fields. Among other things, the settlement will pay for the development of the Miner Flat Dam Project on the north fork of Whiteriver, which will provide a reliable drinking water supply that meets the tribe’s growing municipal, rural and industrial water needs. The project will include a dam and storage reservoir, a pipeline system, and water treatment plants in the Whiteriver, Fort Apache, Canyon Day, Cedar Creek, Carrizo and Cibecue areas. Supply to recreational lakes and fish hatcheries will also be part of the deal. These improvements will cost approximately $202 million, funded by the federal government. The state of Arizona is contributing $2 million in funds.

In return, the tribe is providing waivers and releases of claims that benefit all present and future water users in the Little Colorado River and Gila River basins. These water users include people like you who may own wells or divert water from surface water sources.

What is important for you to know is that the tribe’s waiver and release benefits all existing and future water users. This means that for now and in the future, the tribe can never challenge your use of a groundwater well or your surface water diversion.

The Little Colorado River and Gila River adjudications are expensive and complicated. They have been before the courts since the 1970s. The magnitude of water rights claims of local Indian nations have created uncertainty for all non-Indian water users’ claims. Settlement agreements such as the one with the White Mountain Apache Tribe not only end the cloud of uncertainty over water rights, but do so in a cost-effective and straightforward way that benefits both the tribe and the non-Indian communities. These settlements are an ongoing process in both adjudications.

About 10 years ago, a settlement was reached with the Zuni Pueblo, which also contributed to the conclusion of longstanding litigation and uncertainty about water rights. Assuming that the settlement with the White Mountain Apache Tribe will be approved in the adjudication courts like the Zuni settlement was approved, the water adjudications are still not over. For the past 19 years, numerous local parties have been trying to reach a settlement with the Navajo Nation and the Hopi Tribe over water right claims in the Little Colorado River adjudication. Unfortunately, a settlement has been elusive and the Indian and non-Indian claims are currently in litigation unless a settlement can be reached.

We represent many municipal and agricultural interests in both water adjudications — all of whom agree with us that settlements are preferable to litigation. We have all concluded that the White Mountain Apache Tribe water settlement is beneficial and creates a win-win situation for everyone concerned. We urge you to study the settlement documents and hope that you reach a similar conclusion.

David A. Brown is an attorney for Brown & Brown Law Offices, located in St. Johns, Pinetop and Eagar.

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