Lake Nighthorse water-rights settlement pushed to Jan. 15 — The Durango Herald

Lake Nighthorse via the USBR
Lake Nighthorse via the USBR

From The Durango Herald (Jessica Pace):

A ruling on the settlement agreement reached last month in the years-long Animas-La Plata Project legal battle over water rights to Lake Nighthorse was continued to Jan. 15.

Chief District Judge Gregory Lyman’s ruling was postponed until next month because a signed agreement to the settlement is still needed from several federal parties involved, including the Department of Justice.

Last month, stakeholders reached the settlement, which saved all parties from an arduous trial over whether the Southwestern Water Conservation District’s continued use of the water from Lake Nighthorse for irrigation is consistent with state and federal law.

The SWCD had conditional rights to the water through a temporary permit.

The litigation sprang from groups, including the Animas Conservancy District, San Juan Water Commission, Southern Ute Indian Tribe and Ute Mountain Ute Indian Tribe, that were opposed to the SWCD’s continued use of water from Lake Nighthorse, which was designated to fulfill the water needs of native communities and water districts in Colorado and New Mexico.

Snowpack news: 4 days of snow in SW #Colorado = great numbers

Click on a thumbnail graphic below to view a gallery of snowpack data from the Natural Resources Conservation Service.

Tribes hold wild card in high-stakes supply game — E&E Publishing

Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. Map courtesy of the Bureau of Reclamation.
Many Indian reservations are located in or near contentious river basins where demand for water outstrips supply. Map courtesy of the Bureau of Reclamation.

Here’s a report from Nnie Snider writing for E&E Publishing. Click through and read the whole article, here’s an excerpt:

It’s not just modern engineering that made Arizona’s desert bloom.

Thirty miles south of downtown Phoenix sits dusty land that was once farmed by one of the most advanced agricultural civilizations of prehistoric times. As far back as 300 B.C., the Hohokam people hand-dug a network of canals through the Gila River’s rich floodplains, diverting spring runoff to nourish their fields.

But by the end of the 19th century, their descendants’ fields were parched and dead, thanks to upstream diversions by white settlers.

“That era among our people is called the time of starvation,” said Gov. Stephen Roe Lewis, the top elected official at the Gila River Indian Community, home of the Hohokam’s descendants, the Pima, and the Maricopa tribe.

“Not only had our crops dried up because of lack of water, we were known as ranchers and a lot of our animals died because of lack of water,” he said. “We were really on the brink of extinction.”

Over the next century, the federal government put its financial and engineering might to work developing water projects around the reservation to benefit surrounding communities, but rarely the tribes.

Their fields dry, the Pima and Maricopa shifted from their traditional diet to a Western one, and the community’s diabetes rate skyrocketed to one of the highest in the country.

Traditional ways — weaving baskets of marsh grasses, using herbal medicines made from river sediment — were lost, too.

The painful irony: The tribes were technically the first in line for water.

Thanks to a 1908 Supreme Court ruling, tribes almost always have the most senior claim to water in the West, where water rights are prioritized based on when the resource was first put to beneficial use and reservations dot the landscape.

Rights mean little without a lawyer to defend them, though, and for generations, tribes were too poor to afford representation.

But in recent years, in part because of groundwork laid by the Native American civil rights movement, tribes are increasingly heading to court to assert their rights.

There’s a problem: While the high court was clear that tribes have rights to water, it did not say to how much.

In many cases, tribes claim a share large enough that it could crowd out neighboring cities’ and farmers’ water supplies and stanch future development.

Tribes along the main stem of the Colorado River in the Lower Basin have some of the few court-determined rights because of a 1963 Supreme Court decision covering larger battles over the river between California and Arizona. Today, just those few tribes have rights to roughly 20 percent of the Lower Basin’s flow — an amount that is more than five times the allocation for the entire state of Nevada…

Now, as booming populations and extended droughts have stoked competition for water supplies across the West, the uncertainty around tribes’ potentially massive claims to water in already overstretched river basins is posing real constraints on communities and businesses.

“It’s a very significant set of claims that tribes have on very limited and critical water supplies across the West,” said Deputy Interior Secretary Mike Connor, who has worked on tribal water issues throughout his career. “It’s uncertainty — that’s what water managers don’t want.”

But lawsuits have largely proved fruitless for all sides.

When tribes win, they receive only a legal right to the water — dubbed a “paper water right” — often without the infrastructure or funding needed to get the water to the reservation and put it to use.

Meanwhile, endless appeals offer certainty for no one.

Instead, many tribes and communities have opted to sit down at the negotiating table in an effort to hash out an agreement that can get the tribes what they most need — wet water and sometimes other support for economic development — while protecting nontribal users and absolving the federal government of liability for failing to protect tribes’ rights.

Moreover, with all parties at the table, settlements are increasingly providing an opportunity to take a holistic look at issues across the basin and address other sticky issues like endangered species management or land ownership.

“I think generally we kind of look at these things as an opportunity to figure out how water in a particular basin’s going to be used in the future because in these negotiations, everything’s on the table, everybody’s involved,” Echohawk said.

“The question is, how do we get that peace in the valley? How do we learn to live together in a sustainable basin?” he said. “It comes down to a master plan for water in a particular basin for time in eternity.”

But settlements tend to rely on an infusion of federal cash to help make the pie larger for everyone, and that funding is getting harder to fight for in Congress…

Complex legal landscape

Two legal concepts drive conversations about tribal water rights.

The first, known as the Winters doctrine, stems from a 1908 Supreme Court case, Winters v. United States, relating to water rights at the Fort Belknap American Indian Reservation in central Montana.

It holds that when Congress set aside land for an Indian reservation, it also intended to reserve the water necessary to make that land a permanent homeland. The same doctrine has also been applied to other federal reservations, like national parks.

But how much water does a homeland need?

Courts have generally looked to the purpose that Congress identified in establishing the reservation, which was often agricultural, even for tribes with no history of farming.

So to come up with a water right, experts would calculate how much reservation land could be farmed and how much water it would take to irrigate it — a complicated, time-consuming process that can result in a large amount of water for the tribe.

The second key legal concept relates to the federal government’s responsibility to tribes.

In a “trust responsibility,” the government, through the Interior Department, has a legal obligation to protect tribal treaty rights, land and other assets, and carry out federal laws relating to tribes.

Court rulings have made it clear that trust obligation includes protecting tribes’ water rights in the face of outside development — something the government frequently failed to do.

Meanwhile, some experts contend that the lack of infrastructure development for tribes is also a breach of that trust responsibility.

On the Navajo Nation, the country’s largest, poorest reservation, which spans a broad swath of Arizona, New Mexico and Utah, an estimated 40 percent of households lack access to running water.

There, families must travel dozens of miles to haul water from centralized wells or wait for the once-a-month delivery from a local church. Without water, economic development is nearly impossible.

But exactly what that federal liability means in dollars and cents is another major open question.

One of the highest-profile cases over breach of trust was a long-running class-action lawsuit relating to the Interior Department’s mismanagement of income from tribal trust lands. That case, Cobell v. Salazar, settled in 2009 for a whopping $3.4 billion.

But for water rights, there’s no solid precedent.

In part, that’s because neither side has wanted to take the risk to get a definitive answer.

For one thing, due to a 1952 appropriations rider, federal water rights like tribes’ can be adjudicated in state courts, which tribes tend to see as hostile to their interests.

Meanwhile, the country’s highest court is also seen as becoming less favorable to tribes.

The last major Indian water rights case to land before the Supreme Court was an appeal of a Wyoming state court’s decision that granted the Wind River Indian Reservation a large water right.

Then-Justice Sandra Day O’Connor recused herself from the case at the last moment, having discovered that her family’s ranch was part of a water adjudication that involved tribal water rights.

Without her, the high court reached a split, 4-4 decision that left the state court’s ruling in place.

But when Justice Thurgood Marshall’s papers were made public after his death, lawyers found a “ghost opinion” from O’Connor that would have overturned the Wyoming ruling and significantly revised the Winters doctrine.

All that leaves tribes gun-shy about a return trip to the high court.

“Tribes don’t want to be litigating these and going to the Supreme Court because they came within a whisper of losing it all in ’89, and in my view the Supreme Court has become a lot more hostile to tribal interests than the court we had at that time,” said Stanley Pollack, assistant attorney general for the Navajo Nation and a leading expert on tribal water rights.

#COWaterPlan: “…it includes elements that everyone both likes and dislikes. That’s the nature of compromise” — Jack Bombardier

Town of Gypsum via
Town of Gypsum via

Here’s a column from Jack Bombardier writing in The Grand Junction Daily Sentinel:

On Nov. 19, the final draft of the Colorado Water Plan was delivered to Gov. John Hickenlooper. In the future, this might be looked back upon as a watershed moment for Colorado (pun intended).

Since our fair state was first settled, water disputes have been a constant source of controversy. And now, after 14 years of drought and a never-ending flow of people wanting to live here, the challenge to supply enough water to keep everyone happy has never been more urgent.

The governor was smart to understand that water drives Colorado’s economy and our quality of life more than anything else, including 200,000 sustainable jobs in our tourism and recreation economy. His emphasis on ensuring that the recreation and tourism economy tied to healthy rivers is taken into account in the plan is welcomed by the Colorado business community and environmental stakeholders alike.

As I see it, there are two main water issues underlying all of the others. The first is supply and demand; drought is chipping away at the supply and more folks moving here all the time are increasing demand. The second is the fact that 89 percent of Colorado’s population lives on the Front Range, and 84 percent of our water flows west. These realities make it impossible for everyone to get everything they want. However, the new water plan represents a good first step toward reaching that ideal.

I live beside the Colorado River, and with only a slight turn of my head I can see it flowing past my window as I write this. For most of the year, I run a float fishing business called Confluence Casting and take people from all over the world down the river. From my perspective, I see a precious resource, one that not only provides me with income but that helps people connect to the natural world in a very deep and almost spiritual way. River corridors like the Colorado and others are why people come here to live or visit in the first place. Quality of life is a hard value to define, but you know when you have it, and when you don’t. And here in Colorado, we definitely do.

As much work as it took to get the water plan completed, now is when the heavy lifting begins. The plan outlines the main issues we face, and a number of different methods that we might use to help ensure our water supplies for the next 50 years or longer. But there is nothing in the plan that is really mandated. It’s sort of an “all of the above” wish list of things. Since all of the state’s Basin Roundtables and other varied stakeholders were involved in crafting the plan, it includes elements that everyone both likes and dislikes. That’s the nature of compromise.

Colorado transmountain diversions via the State Engineer's office
Colorado transmountain diversions via the State Engineer’s office

From my narrow perch, I don’t want to see any more trans-basin diversions or dams, and not a drop more water going east. But even if we consider diverting water to the Front Range, let’s first consider smarter solutions that maximize water that is already available. For sure, available water could be managed a lot better than it is now, whether by reducing waste at the municipal or agricultural level, or by amending outdated water law. Colorado water rights have a “use it or lose it” provision that discourages landowners from keeping water in the rivers when they don’t need to take it. It can also be in a farmer’s short-term interest to sell their water rights to a city. Why not make it easier to lease it instead?

I’m as pleased as everyone else that the Colorado Water Plan is now a real, living document. It is heartening to see the governor has placed conservation values at the center. The most cost effective and easily implementable way to ensure our businesses and communities have enough water to thrive is to improve urban and agricultural water conservation.

The Colorado Water Plan may only be a first step, but every great journey begins with that. Now the plan needs to be implemented. The positive momentum we’ve created must be continued with robust and detailed criteria for project selection and adequate funding to protect our rivers, outdoor recreation industry, agricultural heritage, businesses and thriving cities. May we all look back in the coming years and say that Colorado’s great and successful journey towards a comprehensive water policy began on Nov. 19, 2015.

Jack Bombardier is the owner of Confluence Casting, based in ​Gypsum, Colorado.

Ike enjoying the Fraser River back in the day
Ike enjoying the Fraser River back in the day

#COP21: The Paris Agreement — An “Incremental Advance” for International Recognition of the Rights of Indigenous Peoples — International Indian Treaty Council

Here’s the release from the International Indian Treaty Council (Robert Borrero):

The 21st Conference of the Parties of the United Nations Framework Convention on Climate Change (UNFCCC-COP21) officially adopted the Paris Agreement on Saturday, December 12, 2015. The Agreement, with the legal force of a UN Treaty, was agreed to by all the 195 States (countries) present. Once ratified by at least 55 States, it will go into legal force in 2020. It commits all countries, for the first time ever, to cut their carbon emissions while also recognizing the special circumstances of developing countries. The States also adopted the “Paris Decision” which is not legally binding, but commits States to immediately begin the process of reducing greenhouse emissions that cause climate change.

Some commentators are denouncing the Paris Agreement as a failure while others are hailing it as an historic triumph. But for Indigenous Peoples, the Paris Agreement can be seen as another step forward for the recognition of their rights in international law.

The International Indigenous Peoples Forum of Climate Change (IIPFCC) and the Indigenous Peoples Caucus representing over 200 indigenous delegates attending this session from around the world, was invited to make a formal statement at the COP21 closing plenary. The IIPFCC closing statement, presented by elder Frank Ettawageshik (Little Traverse Bay Bands of Odawa Indians), highlighted the three key messages advocated by Indigenous Peoples during the two-week session. These included a call for the rights of Indigenous Peoples [to] be recognized, protected, and respected within a broad human rights framework in both the preamble and the operative sections of the Agreement; a temperature goal of no more than 1.5 degrees Celsius increase over pre-industrial levels; and recognition, respect for and use of Indigenous Peoples’ traditional knowledge, with their free, prior, and informed consent, in measures for adaption to climate change. The IIPFCC statement, while expressing that Indigenous Peoples were “keenly disappointed” at the shortfalls in meeting these calls, noted that all three Indigenous Peoples messages were “addressed to some degree” in the final Agreement.

In particular, the inclusion of “the rights of Indigenous Peoples” in the preamble paragraph of the Agreement, achieved despite the consistent opposition of some States throughout the process, is a significant and unprecedented step forward. This is the first time this phrase has appeared unqualified in a legally binding UN Treaty, environmental or otherwise. The same phrase was included the preamble of the Paris Decision, although both say that States “should consider”, while Indigenous Peoples and human rights advocates called for the use of the stronger word “shall”.

As noted by hereditary Chief Damon Corrie, Lokono Arawak of Barbados, “strong support by a group of States including Philippines, Mexico, Costa Rica, Peru, Chile, Tuvalu, Indonesia, Canada and others, standing in solidarity with Indigenous Peoples throughout the negotiations, was required to achieve these inclusions in the final Agreement.

Despite disappointment that the phrase ‘rights of Indigenous Peoples’ and Human Rights in general did not also appear in the Agreement’s operative section, International Chief, attorney and member of the UN Expert Mechanism on the Rights of Indigenous Peoples (EMRIP) Wilton Littlechild, Ermineskin Cree Nation, clarified that “the preamble of a Treaty provides the context and framework for interpreting and implementing the entire document.” The Vienna Convention on the Law of Treaties supports his assessment. On this basis, Chief Littlechild called the Paris Agreement an “incremental advancement for recognition of the rights of Indigenous Peoples in international law.”

The Paris Agreement also calls on State parties (countries) to hold “the increase in the global average temperature to well below 2°C above pre-industrial levels and to pursue efforts to limit the temperature increase to 1.5°C above pre-industrial levels.” The 1.5 temperature goal was a core position not only of Indigenous Peoples, but the Small Island Developing States.

Article 7 of the Agreement addressing Adaptation affirms the need for a participatory, transparent, gender-sensitive approach based on science and “as appropriate, traditional knowledge of indigenous peoples and local knowledge systems”. UN Special Rapporteur on the Rights of Indigenous Peoples Victoria Tauli Corpuz noted that Indigenous Peoples’ traditional knowledge, innovations and practices are recognized in both the Agreement and the Decision, and stated that moving forward “the challenge is how to operationalize this decision.”

The inclusion of Indigenous Peoples’ core positions both in the Paris Agreement and Decision was the result of the monumental, coordinated and unified efforts by the Indigenous Peoples Caucus throughout COP21. Despite the shortfalls, the inclusion of “the rights of Indigenous Peoples” in both preambles provides a basis for future advocacy to ensure that all programs addressing Climate Change are carried out with respect for the rights of Indigenous Peoples as affirmed in the UN Declaration for the Rights of Indigenous Peoples, including land and resource rights, free prior and informed consent, traditional knowledge and Treaty rights.

While the near foot of snow that came in with the early morning storm may have altered the Our Lady of Guadalupe procession into town, the dance troupe did not disappoint as they performed in sub-freezing temperatures at Annunciation Church in Leadville on December 12. Thanks for your dedication! Photo: Leadville Today/Brennan Ruegg
While the near foot of snow that came in with the early morning storm may have altered the Our Lady of Guadalupe procession into town, the dance troupe did not disappoint as they performed in sub-freezing temperatures at Annunciation Church in Leadville on December 12. Thanks for your dedication! Photo: Leadville Today/Brennan Ruegg