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Supreme Court Will Review Navajo Nation Colorado River Spat

Nov. 4, 2022, 5:39 PM

The US Supreme Court will weigh in on the “fierce” competition for Colorado River water rights in a suit pitting the Navajo Nation against the federal government, certain states, and regional water-management authorities.

On Friday, the justices agreed to review a federal appeals court decision allowing the Navajo Nation to move forward with a lawsuit seeking to secure water from the river.

The justices in recent terms have shown an interest in tribal issues. The court on Nov. 9 will consider a challenge to the 1978 Indian Child Welfare Act, which tribes see as imperative to maintaining their most precious resource—their children.

Here, the Supreme Court agreed to hear a suit involving another critical resource. In reversing a federal judge’s decision to dismiss the Navajo Nation’s suit, the US Court of Appeals for the Ninth Circuit in April noted that because “much of the land in the Colorado River drainage basin is arid, competition for water from the Colorado River and its tributaries is fierce.”

The Navajo Nation wants a court to force the federal government to determine its water needs, develop a plan to secure water, and manage the mainstream of the river’s lower basin so it doesn’t interfere with the plan. The Ninth Circuit said the case could proceed because it doesn’t seek a judicial quantification or right to the mainstream of the section of the river.

The US, states, and allied water-management groups contend the US Secretary of the Interior would need to quantify the tribe’s alleged rights to manage the river in a protective way. The relief sought by the tribe is “the functional equivalent of a quantified decreed right,” the states told the high court in their petition filed in May.

Any delivery to the Navajo Nation within Arizona may reduce the amount of water available to others with existing rights, the states said. Neither the Ninth Circuit nor the Secretary can “adjudicate further rights to the mainstream” of the river’s lower basin, according to their petition.

This dispute instead belonged in the Supreme Court, the petition argued, which “first obtained jurisdiction over the mainstream and retained continuing jurisdiction over it.” That view was shared by the US District Court for the District of Arizona, which originally dismissed the case.

The issue is especially important now that the section of the river was declared in shortage condition “for the first time in history,” with contractors reducing their use even more to avoid “painful shortages,” according to the petition.

Rita Maguire of Phoenix and the Arizona Department of Water Resources represent the state. Somach Simmons & Dunn represents the Central Arizona Water Conservation District, which also represents itself.

Salmon, Lewis & Weldon PLC represents the Salt River Valley Water Users’ Association and Salt River Project Agricultural Improvement and Power District.

The Nevada Attorney General’s Office and Fennemore Craig PC represent the state and the Colorado River Commission of Nevada. Fennemore Craig also represents the Southern Nevada Water Authority, which also represents itself.

The Colorado Attorney General’s Office represents the state. The Departement of Justice represents the federal government.

The Metropolitan Water District of Southern California represents itself. Law & Resource Planning Associates PC represents the Imperial Irrigation District, which also represents itself. Redwine and Sherrill LLP represents the Coachella Valley Water District.

The cases are Arizona v. Navajo Nation, U.S., No. 21-1484, review granted 11/4/22 and Department of the Interior v. Navajo Nation, U.S., No. 22-51, review granted 11/4/22.

To contact the reporters on this story: Maya Earls in Washington at mearls@bloomberglaw.com; Kimberly Strawbridge Robinson in Washington at krobinson@bloomberglaw.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Andrew Harris at aharris@bloomberglaw.com