Kayaking on Scott Reservoir

Garrett Gunter (left) and John Garcia (right), of Chandler, take a short break from paddling as they drift into the shore of Scott Reservoir just outside of the Pinetop-Lakeside town limits. The reservoir is one of several man-made water sources created for irrigation and recreation in the White Mountains.

ARIZONA – The Little Colorado River water adjudication, also known as the LCR Adjudication, is a judicial proceeding that was first filed in 1978 in Apache County Superior Court to determine the priority of all water rights within the Little Colorado River Watershed.

It is one of two water adjudications in the state of Arizona. The other is the Gila River Adjudication.

The Little Colorado River (LCR) and the Gila River Adjudications are significant because the “exterior boundaries of these two adjudications include more than half the state, where most of the Indian reservations and federal land are located,” according to the Arizona Department of Water Resources.

In the case of the LCR Adjudication, the 41-year battle for water rights has the potential to affect most White Mountain communities.

The case involves thousands of claimants and water users throughout Arizona and is still going on today.

“The adjudication and battles over water will not end in our lifetime,” assured David M. Newlin, executive director of the Little Colorado River Plateau Resource Conservation and Development Area, Inc.

Newlin provided some history of the LCR Adjudication during a special meeting of the Rainbow Lake Coalition on June 11.

Since the western United States began to be settled, Newlin explained, people recognized the value of water. The demand for water exceed the supply, especially in the drier climates throughout the southwest.

The legal proceedings for the LCR Adjudication are ultimately supposed to determine how to divide up the 160,000 acre-feet of surface water per year that comes from the Little Colorado River watershed. The Little Colorado River watershed is also the second largest watershed in Arizona, measuring 27,000 square miles.

Excerpt from new.azwater.gov identifying watersheds throughout Arizona, including the Little Colorado River Watershed.

Who claims the water?

There are several Native American tribes involved in the LCR Adjudication. They include the Hopi Tribe, the Navajo Nation, the White Mountain Apache Tribe who has already settled, and the Zuni Tribe, according to the AZDW.

The non-Indian claimants are divided into the Silver Creek watershed, the Upper Little Colorado River watershed, and the Lower Little Colorado River watershed.

“There are many competing demands for water, including the Hopi Tribe, who has lived in the area the longest; the Navajo Nation; the United States government; non-Indian communities (such as Flagstaff, Winslow, Show Low, Snowflake, Springerville, St. Johns, and Holbrook); commercial and industrial interests (such as Salt River Project and Arizona Public Service); and numerous other individual and commercial interests,” according to a 2018 press release on the Hopi Times website.

What is adjudication?

Litigation through the Arizona Supreme Court has been the vehicle used to settle or “adjudicate” the Little Colorado River water rights but the process hasn’t offered a quick solution by any means.

Adjudicate means to settle a dispute. It’s a formal way of saying “to decide” or “to resolve” something, according to Merriam-Webster Dictionary.

“There are over 39,000 parties in the Gila Adjudication and over 6,000 parties in the LCR Adjudication,” according to the Arizona Department of Water Resources, the agency who is charged with maintaining all of the related data and documents.

Tribes at an impasse

The White Mountain Apache Tribe and the Zuni tribes have settled in the LCR Adjudication but the Navajo Nation Reservation and the Hopi Tribe have not.

The complexity of the case and the inability to find a settlement weighs heavy on both tribes.

“Every water district, every city, every corporation, every town is one side or the other of the argument,” says Newlin.

“In 2012, Senators John Kyle and John McCain had a settlement in the LCR adjudication,” explained Newlin. “They were just waiting for the Hopi and the Navajo to decide how to divide the water ‘proceeds’”

“The two tribes agreed to disagree and the settlement effort fell through,” explained Newlin. “So, the Hopi went back to the table and have since laid out a 10-year plan for what they wanted to adjudicate.”

The Hopi Tribe went to trial last September and the first phase of the water rights trial ended in December 2018, according to a November 2018 press release published in The Hopi Tribe website.

The Navajo and Hopi each claim priority water rights to the LCR, but have been unable to agree on the amounts to which they’re entitled.

“While our lawyers, on our behalf, have asserted for many years that the Navajo Nation is entitled to every drop of water in the Little Colorado River basin, the Little Colorado River continues to flow past the Navajo Nation and almost half of our households continue to haul water,” wrote District 2 State Representative, Albert Hale in an April edition of the Navajo Times.

“We know that clean water is essential for life,” Hale adds. “Without the LCR Settlement, the underlying litigation, which is already almost 40 years old, will go on forever. Our people will continue an existence limited from reaching their full potential by inadequate and unhealthy water supplies.”

Last August, fomer Navajo Nation President Russell Begaye met with Interior Department representatives “to discuss the framework for a settlement of Navajo water rights on the main-stem Colorado River and the Little Colorado River (LCR),” according to an August 20, 2018 story published by Native News Online.

“When it comes to LCR, we go full circle. We’ve come to this impasse before,” Begaye was quoted as saying.

Now, almost a year later, the impasse still lingers for the Hopi and the Navajo.

Who adjudicates the case?

The special master appointed by the court to oversee the case will consider all of the evidence and argument from the past and present water use trial and the future water needs trial. The judge will then produce a comprehensive report on the amount of water needed to by all claimants, including the Hopi Tribe and the Navajo Nation.

Eventually, a decision will be sent for review to the Superior Court of the state of Arizona.

“This is just like any trial,” adds Newlin. “The plaintiffs tell the Court what they plan to do, how the witnesses are organized, the topics, the evidence and how long they believe the trial will take.”

Going to trial

Every claimant in the LCR adjudication case has to pay for legal representation. Some claimants have private legal representation. Native tribes may be represented by the U.S. government.

Either way, it’s expensive and the cost increases as the cases enter the trial stage. Numerous White Mountain communities and water districts are represented by Brown and Brown PLLC in Eagar, and other attorneys.

Eventually, the Maricopa and Apache County Superior Courts are expected to adjudicate, issuing a “comprehensive final decree” of water rights for the Little Colorado River Watershed.

For more information on the LCR and other adjudications in the state of Arizona, visit the Arizona Department of Water Resources at https://new.azwater.gov/adjudications.

Reach the reporter at lsingleton@wmicentral.com

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