Dec 27, 2000  

Navajo tribal attorneys deny water rights conspiracy
by Brenda Norrell
Today Staff

WINDOW ROCK, Ariz. - Testifying before a joint-committee of the Navajo Nation Council, the tribe's attorney general and water rights attorney denied allegations of a conspiracy to deny the tribe water rights to the Colorado River.

Navajo tribal water rights attorney Stanley Pollack denied allegations by a tribal hydrologist that non-Indian attorneys control the flow of information to the tribe, work for outside interests and cost the tribe billions of dollars in lost water rights.

"The allegations in the letter are completely reckless and libelous," Pollack told the committee. He said there are no facts to support the loss of water rights.

Tribal hydrologist Jack Utter issued an eight-page, open letter to Navajos in September making the allegations. He testified before the Navajo Council's joint-committee of government services and natural resources in four days of sworn testimony earlier this month.

Council delegates repeatedly asked Pollack if he was withholding information from the tribe concerning his dealings with outside interests, including Peabody Coal Co.

Utter had said when tribal water officials attempted to access fees for surface water that Peabody Coal was using without a permit, Pollack intervened and worked on behalf of Peabody to protect company interests.

Not so, said Pollack. He said he intervened because the tribe was involved in Little Colorado water rights litigation with Peabody. He said Peabody attorney Ed Sullivan believed the nation was negotiating in bad faith "to try and gain an upper hand in those litigations."

At one point during more than four hours of Pollack's testimony, Ervin Keeswood, chairman of the government services committee, delivered a stern directive.

"Let me do the work later of putting this whole thing together!

"I don't want anyone having the perception that Stanley Pollack is leading this group."

Navajo Attorney General Levon Henry testified in support of Pollack, and agreed there was no basis for the allegations of lost millions, or billions, in Navajo water rights.

"I have not found any basis for the allegations," he testified, adding that evidence would have resulted in an investigation.

When council delegates asked about specifics of water rights litigation, Henry, who is Navajo, testified he is not an expert. He said he relies on Pollack, non-Indian, who has worked for the Navajo Department of Justice for 15 years.

"We turn to our Navajo (water rights) expert who is Mr. Stanley Pollack."

In his letter, Utter quoted Professor Lloyd Burton's 1991 "American Indian Water Rights and the Limits of Law."

"At this writing, the largest Indian reservation in the United States has still not had access to more than a small fraction of its theoretical water rights entitlement."

Countering, Pollack testified that professors and writers in law reviews are merely speculating when they conclude that the Navajo Nation has never gone after hundreds of millions, or even billions, of dollars in Colorado River water rights.

"Law professors or commentators are not experts," Pollack said, adding the term "experts" applies to individuals who provide expert testimony in court concerning the rights of a claim.

In one example, Pollack said the tribe could never claim 50 million-acre-feet in water rights of the Colorado River, since the annual flow is only 13 to 16 million-acre-feet.

"This so-called expert didn't know what he was talking about."

As for authors of law review articles, Pollack said, "They have never done the work to litigate Indian water rights."

"I believe we are pursuing all matters with great diligence."

Pollack said the tribe is utilizing the Winters Doctrine, historic use and Aboriginal rights in litigation.

He said litigation to obtain water rights on the tributaries of the Little Colorado and the San Juan River is the same as going after water rights in the mainstream Colorado River.

"There is nothing magical about that term 'mainstream' Colorado River."

In the audience, Utter disagreed with Pollack's assertions. He defended scholars, professors and authors who argue the Navajo Nation is ignoring a large claim to the river.

"I have not backed down from anything I have said," Utter said during a recess outside council chambers.

Asked if he regrets releasing the statement, he said, "I am not sorry. Not at all."

Traditional Navajos from western communities along the Colorado River, accompanying Utter to the hearing, said they are relieved he made his concerns public.

Navajo elders said they have always intuitively felt tribal attorneys were not working on their behalf. However, they said they feared for Utter's safety after making the information public.

During testimony, Pollack was questioned again and again concerning his contacts with adverse interests. Pollack said he meets with those people on a daily basis.

In water litigation, he said, one session could include the Hopi Tribe, Salt River Project, Central Arizona Project, State of Arizona and United States, all seeking water rights claims adverse to the interests of the Navajo Nation, he said.

On the Little Colorado, there are 3,100 adverse claimants, while on the San Juan River, flowing down from Utah, claimants are three times the number.

Pollack said leasing Colorado River rights has not been an option, since unused water goes to other system water users and cannot be specified for one client.

Under repeated questions, Pollack denied he attempted to withhold water rights information from the Navajo Nation Council and Department of Natural Resources. He also denied he attempted to control actions of the Navajo Water Code Administration.

Utter issued his open letter to Navajos in September accusing non-Indian attorneys of ignoring water rights claims and specifically ordering him to halt a seminar to educate tribal leaders about water rights.

"It is simply ludicrous. I didn't think it was important for the council to hear these sort of claims."

Utter said he arranged for attorneys and professors to address tribal leaders while planning the seminar last winter. Pollack said he raised questions of confidentiality. In the end, Utter continued with the seminar, but Pollack did not attend.

"There is a perception that lawyers control everything in Window Rock," Pollack told the joint-committee.

Questioned on his background, Pollack said he received a bachelor's degree from the University of Michigan, a law degree from the University of Colorado and has taken graduate level courses in water and engineering.

He declined to answer questions about technical analysis of soils taken in the 1980s. He said the information could only be delivered in executive session, to prevent information from leaking to water adversaries.

Pollack would not detail in open session water claims the tribe could successfully litigate in the future.

"People are always thinking lawyers hide everything in public sessions. But we don't want them to get their hands on these documents.

"We need to be cognizant of the fact there are people out there who are going to try and get your water."

Pollack said even Interior Secretary Bruce Babbitt, who Utter praised for efforts with Yavapai-Apache water rights, has at one time been involved in Navajo water rights litigation.

"This letter is not just an open indictment of current lawyers, but all lawyers.

"This is absolutely false, reckless and slanderous," he said.

Utter's letter includes a water rights timeline, showing that in the 1960s, deals were negotiated for coal-fired power plants here to provide energy to non-Indians in the Southwest.

Navajos were not advised of their water rights. The council waived its rights to Upper Basin water for 50 years, based on the advice of tribal lawyers, the Interior and the Salt River Project, Utter's letter states.

He also questioned why Navajo tribal attorneys ignored warnings this past winter and spring that the last chance to file in the ongoing U.S. Supreme Court case for lower Colorado River water rights (i.e. Arizona vs. California 8.Orig, 6/19/00) were coming to a close.

"When told of this, the lawyers suspiciously said and did nothing."

Meanwhile, Utter continues to work in his tribal job. Despite local speculation, there has not been an  attempt by the Navajo Nation to exclude him from tribal land.

"I stand by what I said," he said in an interview after Pollack's testimony.

Brenda Norrell reports from the Southwest. She can be reached by e-mail at: b_norrell@yahoo.com