STATE OF NEW MEXICO, ex rel. THE STATE ENGINEER, AB-07-1 Claims of Navajo Nation

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1 STATE OF NEW MEXICO COUNTY OF SAN JUAN ELEVENTH JUDICIAL DISTRICT COURT STATE OF NEW MEXICO, ex rel. THE STATE ENGINEER, Plaintiff, AB-07-1 Claims of Navajo Nation vs. No. CV Honorable James J. Wechsler THE UNITED STATES OF AMERICA, et al., Presiding Judge Defendants. DESCRIPTIVE SUMMARY: The U.S. motion for protective order should be denied because a) the San Juan River is connected to the Colorado River, b) when the U.S. makes other demands on the Colorado River system, it reduces the water available in New Mexico, and c) the U.S. is trying to hide the recently released Colorado River Water Supply and Demand Study, as this 2012 study appears to refute the 2007 Hydrologic Determination. NUMBER OF PAGES: 21 (includes exhibits) DATE OF FILING: January 14, 2013 DEFENDANTS JOINT RESPONSE TO MOTION FOR PROTECTIVE ORDER The United States has filed a motion for protective order to prevent discovery about the other water claims which the United States is making to the waters of the Colorado River system, which includes the San Juan River. The motion for protective order must be denied, because it is based on the astounding assertion that the San Juan River is not part of the Colorado River system. This argument is an outright denial of reality. The San Juan River is connected to the Colorado River, physically and legally.

2 1. The San Juan River is physically connected to the Colorado River. A map of the Colorado River system is set out here, to show that the San Juan River is a tributary of the Colorado River. Exhibit 1. [Labeling for Bluff, Utah and the San Juan - Chama Project has been added for clarity.]

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4 The San Juan River is the third-largest tributary in the Colorado River system. A schematic diagram of the Colorado River system is set out here as Exhibit 2.

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6 This schematic shows the share of total flow contributed by each Colorado tributary. The largest stem is the eponymous stem which has been named the Colorado River. This tributary stem arises mostly in northern and western Colorado. On average, the main river stem contributes 42% of the natural river flow. [ Natural flow means the river flow which would occur naturally if there were no diversions and no impoundments by humans. So natural flow overstates the amount of water that is actually in the river.] The second largest tributary is the Green River, which arises mostly in Wyoming and Utah. On average the Green River contributes 33% of the total natural flow of the Colorado River system. The third largest tributary is the San Juan River, which contributes 13%. The San Juan (and the Animas and the La Plata) arises in the San Juan Mountains in southwestern Colorado. Coming out of Colorado, the San Juan River flows for a short distance through the northwestern corner of New Mexico, past Aztec, Bloomfield, Farmington, and Shiprock. The San Juan then flows back into Colorado for about ten miles, to the northeast of the Four Corners Monument. Then the San Juan flows into Utah, past Aneth and Bluff, and into Lake Powell, the reservoir created by the Glen Canyon dam. The Glen Canyon dam is only 15 miles above the measuring point at Lees Ferry, Arizona. There are no diversions between Glen Canyon Dam and the measuring point. 2. The San Juan River is legally connected to the Colorado River. Under the Colorado River Compact of 1922, the upper basin states are obligated to supply Colorado River system water to the lower basin at Lees ferry. The upper basin states, of which New Mexico is one, are legally obligated to deliver seventy-five million acre-feet

7 (75 maf) at Lees Ferry every 10 years. In annual terms, the upper basin must deliver 7.5 maf annually to the lower basin, on average, in every rolling 10 year period. The upper basin states, like New Mexico, are entitled to whatever Colorado River system water is left over, if any, in excess of the 75,000,000 acre-feet owed to the lower basin every 10 years. In 1922, the compact negotiators mistakenly assumed that the Colorado River system could generate an annual flow of 15 maf on average, a figure which is now known to be too high. The Compact divided 15 maf roughly in half, but the lower basin has priority for its 7.5 maf. The 1922 compact does not spell out how the 75,000,000 acre-foot obligation will be met, or how the remainder, if any, will be shared by the upper basin states. The 1948 Upper Colorado River Basin Compact spells out in broad detail how the upper basin remainder, if any, will be shared by the upper basin states. Arizona can use 50,000 acre feet of upper basin water. Then Colorado, is entitled to 51.75% of the remainder; Utah 23.00%; Wyoming %; and New Mexico, 11.25%. In short, New Mexico and the upper basin states do not have an absolute priority to any amount of water from the Colorado River system. New Mexico and the other upper basin states receive only the remainder, the remnants, of the river, if the upper basin system flows more than 75 maf in each ten-year rolling period. According to the best available information, the natural flow of the Colorado River is estimated at 13.7 maf. This leaves only 6.2 maf to divide among the upper basin states. And there are increasingly probable circumstances under which the natural flow will be less than 10 maf in a given year, which would leave a remainder of only 2.5 maf for the upper basin. The 1922 Compact overestimated the natural water supply in the Colorado River Basin. Furthermore, the natural water supply is shrinking due to climate change. So New

8 Mexico and the other upper basin states have accumulated a huge supply deficit to the lower basin, as shown in Exhibit 3 here. The upper basin supply deficit to the lower basin amounts to almost 30 million acre-feet as of 2008.

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10 3. The U.S. has many other claims which reduce the amount of water that can be consumed in New Mexico. The apportionments made by the two compacts are not the end of the problem. There is also the obligation to Mexico. And the claims of the United States on behalf of other Indian tribes besides the Navajo Nation. And the claims of the United States for water for national parks, national forests, and other federal lands. And the claims of the United States for endangered species. Spanning parts of the seven states of Arizona, California, Colorado, New Mexico, Nevada, Utah, and Wyoming (Basin States), the Colorado River Basin (Basin) is one of the most critical sources of water in the West. The Colorado River and its tributaries provide water to nearly 40 million people for municipal use, supply water used to irrigate nearly 5.5 million acres of land, and is also the lifeblood for at least 22 federally recognized tribes (tribes), 7 National Wildlife Refuges, 4 National Recreation Areas, and 11 National Parks.... The Colorado River is also vital to the United Mexican States (Mexico) to meet both agricultural and municipal water needs. Colorado River Water Supply and Demand Study, Executive Summary, page ES-1 (released Dec. 12, 2012). For endangered species, the United States is demanding an average annual flow in excess of 700,000 acre-feet per year at Bluff, Utah. The U.S. demands a base flow of at least 500 cfs to 1,000 cfs at Bluff, plus large seasonal peak flows in the springtime, up to 10,000 cfs. See Colorado River Water Supply and Demand Study prepared by the Department of the Interior and the Bureau of Reclamation at Appendix D3-9 and -10. See Exhibits 4, 5 and 6, attached at the end of this response. This means that none of this 700,000+ acre-feet would be available for consumption in New Mexico, because it must remain in the river. If the United States claim for endangered species is valid, a question yet to be determined, then there is very little water which is both physically and legally available for

11 use by anyone in New Mexico. This includes the community ditches, towns of Farmington, Bloomfield, and Aztec; the San Juan Chama project which supplies the Rio Grande; the Ute Mountain Utes; the Southern Utes; and the Navajos. Thus it is simply absurd for the United States to argue that the San Juan is somehow disconnected from the rest of the Colorado River system. It isn t. To illustrate the problem, suppose that in a particular year the natural flow of the Colorado River system is 12.5 maf at Lees Ferry. This leaves only 5 maf for the upper basin, of which Arizona gets 50,000 acre-feet, leaving 4.95 maf. New Mexico s 11.25% share of 4.95 MAF amounts to 556,875 acre-feet. However the United States says that 700,000 acrefeet must flow down the river untouched to Bluff, Utah. So, how much water is left for beneficial use in New Mexico? The numbers simply don t add up. This has always been a critical area for discovery, and it is made even more critical by the December 12, 2012 study. Focusing on the 700,000+ acre-feet for fish, this endangered species demand by the U.S. raises some obvious questions for discovery: Is there enough water in the river to do this? Where would this water come from? What is the priority for this water? How often will there be a call on the river to provide this water? Which users in New Mexixo will be cut off? Where would this water go? Which states would be charged for this water under the two Colorado Compacts?

12 4. The United States is trying to conceal evidence which will disprove the settling parties assertion that the settlement agreement will reduce calls on the river to a rare occurrence. All of the topics above are plainly within the scope of discovery into the issues which are being contested in this case. See Court s orders of November 6, 16, and 30, All of them have been put it issue by the settling parties untrue assertion that the settlement would make calls on the San Juan River a relatively rare occurrence. The United States own data will show that this assertion of fact is untrue. For example, if 750,000 acre-feet must be delivered to Bluff, Utah on the average, then calls on the river in New Mexico will occur in most years, when coupled with the compact requirements and the declining stream flow throughout the Colorado basin, which is especially pronounced in the San Juan basin. 5. The United States is trying to conceal evidence which might show that the 2007 BOR hydrologic determination is wrong. As soon as Bill Richardson signed the proposed settlement agreement, knowledgeable observers pointed out that the government would have to fabricate numbers to meet the precondition imposed by Congress: a scientific determination that there would be enough water to accommodate the settlement. This was simply stated by Eric Kuhn, who predicted that the government would have to create paper water to allow the settlement to go forward. However, New Mexico has a problem, it has already allocated its full share of the water available under the 1988 hydrologic determination to other uses. Therefore, to comply with the proposed Navajo settlement, New Mexico needs the Secretary to redo the hydrologic determination and, magically, find more water in the Upper Basin.

13 Eric Kuhn, Memorandum to Colorado River Water Conservation District Board of Directors (Apr. 6, 2006) (attached to community ditches Motion for Limited Discovery Concerning 2007 BOR Hydrologic Determination (Oct. 1, 2007)). As predicted, John Whipple and others magically conjured up enough paper water to paper over the actual shortages in the Colorado River basin. Unfortunately, Judge Rozier Sanchez denied the motion, but promised that discovery would commence as soon as the Navajo Inter Se was filed. The order establishing the Navajo Inter Se was filed December 8, 2009, but the court delayed discovery until February In the meantime the United States and the Richardson administration destroyed the records concerning the 2007 determination, even though they had a duty to preserve this data. This spoliation is a serious matter, which the court has failed to address. This spoliation is one of several reasons for invalidating the 2007 BOR determination. [Of course the United States says that this court has no jurisdiction to review any decision by the United States. If that is so, then this entire proceeding is a sham, and the court is wasting its time and precious resources, and the resources of the defendants. When is the court going to address this threshold legal issue?] The United States filed this motion on December 28, 2012, with full knowledge that on December 12 the United States had released a major new study on water supply and demand for the San Juan and the rest of the Colorado. At least at first glance, it appears that the Department of the Interior s 2012 study tends to refute its 2007 hydrologic determination. And the 2012 study also calls into question many of the other terms and assumptions built into the authorizing legislation and the proposed settlement itself. For example, the Executive Summary to the 2012 study states the following:

14 Under the Downscaled GCM Projected scenario, the mean natural flow at Lees Ferry over the next 50 years is projected to decrease by approximately 9 percent, along with a projected increase in both drought frequency and duration as compared to the observed historical and paleo-based scenarios. The range of this result varies amongst the individual GCM projections that comprise this scenario with some of the GCM projections showing a larger decrease in mean natural flow than 9 percent while others showing an increase over the observed historical mean.... Droughts lasting 5 or more years are projected to occur 50 percent of the time over the next 50 years. Projected changes in climate and hydrologic processes include continued warming across the Basin, a trend towards drying (although precipitation patterns continue to be spatially and temporally complex) increased evapotranspiration and decreased snowpack as a higher percentage of precipitation falls as rain rather than snow and warmer temperatures cause earlier melt. Colorado River Water Supply and Demand Study, Executive Summary, page ES-5. To prevent any inquiries into the apparent inconsistencies between the 2007 and 2012 BOR studies, the United States is trying to delay discovery long enough to run out the discovery clock on March 1, The settling parties have always known that their proof would not hold up to the scrutiny of discovery. So their fallback position is to stall and run out the clock on discovery, so that the court will remain ignorant about the grim facts. At every turn in this litigation, over many years, the three governments have tried to keep the court as ignorant as possible. And thus far they have succeeded. But of course the United States insists that the court must meet the deadline of December 31, 2013 for approval of the settlement. The U.S. says that this deadline must be met, at all costs... even though there is no deadline. See Partial Transcript of Hearing, Exhibit 1 (Jan. 10, 2013).

15 5. It is not too much of a burden to require the United States to state its demands on the Colorado River, because the United States decides what those demands are. The United States falls back on its usual boilerplate objection that answering the interrogatories would be too burdensome. The United States is trying yet again to shirk the burdens of proof which the court has placed upon it. All of the other U.S. claims have some effect on the amount of water available. The United States and the other settling parties have represented to the court that calls on the river would be relatively rare if the settlement were approved. Discovery will show that this was a knowingly false statement to the court, or at least a statement made with reckless disregard for its truth or falsity. Discovery will also show that the 2007 hydrologic determination is wrong. Since at least 2007, the United States has been deliberately deceiving Congress, this court, and the defendants about the sufficiency of water in the Colorado. In essence, the United States says that there is enough water in the River for the proposed settlement... if you leave out all the other demands on the river. To determine the feasibility and the fairness and the legality of the proposed settlement, the court and the other parties need to know all the demands on the San Juan River. Some of these demands are created by stream flows in other branches besides the San Juan, and by the other demands of the United States. Not only is it important to know what these demands are, but also to know the amount of the demand, and the relative priority of these demands. This is why interrogatory number 10 is critical. It asks If the answer to any of the foregoing interrogatories is yes, please identify and describe each water right claimed by the United States, including the nature, purpose, amount, and priority of each such right or obligation, and identify a person or

16 persons to testify about the right or obligation pursuant to Rule 1-030(B)(6), NMRA. The United States seems to protest that it doesn t know what its demands are. That is not an excuse, because the United States is supposed to know what it is doing. And only the U.S. can decide what its demands are. And in many cases, the United States does knows what its demands are or will be, and is simply hiding the ball. For example, the United States refused to answer the interrogatory about the endangered fish. It simply referred to a bunch of documents, which required community ditch defendants to do a burdensome amount of work to quantify those demands into acrefeet. The United States is simply hiding the ball, as it always does. And the United States has refused to say what priority it is claiming for all that water. Does the United States claim that its demand for 700,000+ acre-feet of the San Juan River takes priority over all other users? If the United States claims such a priority, then there will be a call on the San Juan River in New Mexico almost every year, contrary to the factual assertions of the settling parties. The same can be said for the other United States demands. Even if some of these demand have not been precisely quantified at this time, at a bare minimum the U.S. can identify those demands in a list, along with an estimated amount (or estimated range), and the relative priority.

17 Respectfully submitted, VICTOR R. MARSHALL & ASSOCIATES, P.C. By /s/ Victor R. Marshall Victor R. Marshall Attorneys for San Juan Agricultural Water Users Association; Hammond Conservancy District; Bloomfield Irrigation District; various ditches; and various members thereof Oakland NE Albuquerque, NM / FAX CERTIFICATE OF SERVICE I hereby certify that on this 14th day of January, 2013, a true and correct copy of the foregoing was served on the parties and claimants by attaching a copy of said document to an sent to the following list server: wrnavajointerse@nmcourts.gov and to the filing list referred to in paragraph 8 of the court s November 19, 2012 Corrected Order. /s/ Victor R. Marshall Victor R. Marshall, Esq.

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