Apparently, when it comes to tribal water rights, a bird in the hand was not worth two in the bush.
Or something like that.
If we sound a little tentative on the subject, it's because of the mixed messages that were coming from all over the Rez as soon as U.S. Sen. Jon Kyl introduced the Little Colorado River settlement bill in February.
Now that the Navajo Nation Council has voted to oppose the bill as well as the underlying settlement, it's uncertain how or if any of the agreement's terms can be salvaged.
If not, that would seem to be a loss for all sides (except perhaps water rights attorneys). Nearly 30 water users in the Little Colorado River Basin, including the city of Flagstaff, signed off on the settlement after years of negotiations. Without a negotiated deal, the dispute over river and aquifer rights likely will return to state court, where it was previously mired for decades. Why Navajo and Hopi leaders think they will get a better deal in a non-reservation legal venue is a mystery.
Flagstaff had a stake in the settlement because it would have legalized, without threat of future tribal litigation, its current use of Lake Mary and C-Aquifer wells inside the city limits for drinking water.
The two tribes contend they have historic rights to all groundwater and river water in the region, and without a settlement, Flagstaff could be back in court trying to defend its own historic claims to water inside its boundaries.
What won't be litigated if a side agreement is honored is the city's right to pump groundwater at Red Gap Ranch 30 miles to the east and just south of the Navajo Nation. The city and the tribe announced in February that, regardless of how the Kyl bill turned out, the city would be allowed to pump up to 7 million gallons a day from Red Gap if it did so in zones that allowed fewer wells closer to Rez boundaries. Because that's an amount believed to be sufficient for Flagstaff's needs for the next century, city negotiators signed the deal.
Left unsettled is how the city will get the water to Flagstaff and how much that will cost. The rights of way over Hopi lands could be contentious, given the dispute over the use of the city reclaimed wastewater for snowmaking on the sacred San Francisco Peaks. And a 30-mile pipeline with pumping stations could cost up to $200 million, according to some estimates.
By many accounts, the sticking point for key opponents of the proposed settlement was the tying of an extended ground lease for the Navajo Generating Station in Page to extra water for the tribes from the Colorado River. The Hopi Tribal Council left the door open to reconsidering the basic settlement if the power plant clause was left out, and we'd hope Navajo legislators would do the same.
The tribes have a bird in the hand right now if they will only close their fist around it. Leave it open too much longer -- Kyl retires after this year -- and they will have ceded the issue back to unelected lawyers and the courts, which is not where such important issues should be decided.