Supreme Court Hears Pivotal Water Rights Case As Drought Grips Western States
Katelynn Richardson on March 20, 2023
- During Monday’s oral arguments for Arizona v. Navajo Nation, the Supreme Court considered whether the federal government has an obligation to meet the Navajo Nation’s water needs under 1849 and 1868 treaties that established the reservation.
- The Navajo Nation argues that the federal government, which holds its water rights in trust, has continually failed to assert the Nation’s rights.
- The case comes as the region is facing water shortage and the federal government is seeking to impose cuts to states’ use of Colorado River water.
The Supreme Court heard oral arguments Monday in Arizona v. Navajo Nation, which considered whether the federal government has an obligation to address the Navajo Nation’s water needs by allocating water from the Colorado River’s Lower Basin.
The Nation is asking the Court to uphold a Ninth Circuit decision that would enjoin the Secretary of the U.S. Department of the Interior to develop a plan to meet the Nation’s water needs. As the region faces a water shortage that has the federal government ready to impose cuts on existing state allocations, the issue is critical: Arizona and other states who depend on the river worry the Nation could jeopardize their own claims.
On average, Navajo Nation residents use just seven gallons per day, compared to the average American’s 88 gallons per day, Shay Dvoretzky, the lawyer arguing on behalf of the Nation, told the Court. Yet the Nation, which is located mostly within the Colorado River Basin and is bordered by the river, has no rights to its main stem, and the government has never assessed what its needs are or developed a plan for how its water rights will be satisfied, Dvoretzky said.
The question of the government’s obligation to provide water access stems from 1849 and 1868 treaties establishing the reservation and granting the Nation a “permanent homeland,” which the Nation argues implies the right to water. The Nation also believes its rights are backed by the Supreme Court’s 1908 decision in Winters v. U.S., which established the principle that Native Americans have federally reserved water rights, along with land rights, when a reservation is created.
The federal government is the legal holder of the Nation’s water rights, Dvoretzky said, but it has continually failed to fulfill its duty to assert them on the Nation’s behalf. In Arizona v. California, a major 1963 case resolving disputes among states in the allocation of Colorado River water, the government prevented the Nation from intervening, leaving their rights unadjudicated.
While the government agrees the Nation has federally reserved water rights, it contests that enforcing those rights requires providing access to the Lower Basin, or that the right implies a duty to supply access through infrastructure such as pipes or pumps. The government’s only responsibility is to leave the land’s water sources available for use, for example, by not putting a dam up that prevents access, according to Frederick Liu, who represented the United States.
Liu told the Court that the Nation has options for accessing water that do not require the Lower Basin, such as drilling for groundwater or drawing from the Upper Basin.
Rita Maguire, who argued for Arizona, similarly noted that the Nation could access water in other areas, such as the Little Colorado River and other tributaries. The government did assert rights to these tributaries for the Navajo Nation in Arizona v. California, but the court declined to hear those claims, she said.
Arizona’s chief concern is that asking the Secretary to develop a plan for the Navajo Nation could change current law. The instruction to plan and assess has “ambiguity,” Maguire stated.
Dvoretzky disagreed: this “parade of horribles” hypothesized by the government is unlikely, he said. The Nation won’t even know for certain whether it needs to access water from the main stem of the river until the Department of the Interior’s assessment is complete.
Justices Kagan, Jackson, Sotomayor, and Gorsuch appeared sympathetic to the Nation’s arguments, while Justices Alito, Kavanaugh, and Thomas seemed more skeptical, with Justice Barrett pressing for clarification from both sides. Justice Gorsuch was particularly forceful in his questioning of Liu, noting that the Nation’s exclusion from Arizona v. California meant the Court has never considered its claims.
“What remedy do they have?” he asked.
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