Thursday, March 16, 2023

NEW and FIRST: Did U.S. Screw Navajo Nation Out of Colorado River Water Rights? U.S. Supreme Court Hearing Arguments On Monday In "Arizona v Navajo Nation" (READ Briefs)

The U.S. Supreme Court is hearing arguments on Monday in an Arizona case that could throw a new monkey wrench into Colorado River water plans. Arizona v. Navajo Nation is the latest chapter in the long-running judicial drama over water rights for the once-mightier Colorado, and Arizona, other western states and the federal government are arguing against the Navajo Nation's 20-year fight for rights.

The Navajo Nation's argument is that even though its initial treaties with the U.S. did not address water rights, a longstanding judicial doctrine ("Winters Doctrine") granting implied rights to water applies. When water rights were being adjudicated for the Colorado River, the U.S. did not include the Navajo Nation, deciding that the largest Native American sovereign nation had its rights to the Little Colorado River water. 

The Navajo Nation began (formally) disputing this in 2003, and sued the federal government for breaching its fiduciary duty, and Arizona (and other states intervened). The case has bounced around, but was dismissed by Arizona District Court Judge G. Murray Snow in 2019. The 9th Circuit reversed and allowed the Navajo Nation to attempt to force the U.S. to come up with a plan to meet their water needs.

Arizona, the other states and the U.S. are asking the Supreme Court to dismiss the Navajo Nation's case (and, claims) on two different bases: 

(1) that the Supreme Court retained exclusive jurisdiction on allocation of the Lower Colorado River Basin water in its 2006 Arizona v. California decision, and the Navajo Nation cannot force the U.S. to step in now; and

(2) that the Navajo Nation's claim that the U.S. breached its trust obligations under the treaties which only *implied* water rights cannot succeed because of a Supreme Court decision in 2011 (Jicarilla) that said the rights and obligations had to be *explicitly accepted* in the treaties.

The Navajo Nation rebuts those arguments by noting that it is not asking the courts to quantify its rights, and that the 1849 and 1868 treaties did establish a (now-breached) trust relationship with regards to the Colorado River water rights.

The Supreme Court's involvement in the rights to water in the Colorado River Basin goes back nearly 100 years, and many of their opinions have been titled Arizona v. Colorado (1931-2006). 

Their decision in this case could (eventually) upset a lot of already determined water claims under the previous cases, and could add a wildcard factor into the current negotiations on who needs to cut how much from the shrinking Colorado River supply.

Here (and, below the jump) are the key briefs which will be in front of the Justices Monday at 7am AZT/8am NNT. 

(A number of friend of the court ("amicus") briefs were also filed by non-parties. Please email Paul.Weich.AZlaw@gmail.com if you are interested and/or need help accessing them.)

(more, below)

"AZ Law" includes articles, commentaries and updates about opinions from the Arizona Supreme Court, U.S. Supreme Court, as well as trial and appellate courts, etc. AZ Law is founded by Phoenix attorney Paul Weich, and joins Arizona's Politics on the internet. 

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