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For 20 years, Stanley Pollack has been fighting to get the Navajo Nation the water it deserves. In an era of drought and climate change, it's a battle that could change the face of the Southwest.
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Water water everywhere...
February 1, 2009
The dry, cracked bed of the Salt River snakes its way through Phoenix, Ariz., as wide as a football field with just a trickle of water worming its way down the center. It is a stark reminder that the plush golf courses, palm-studded suburbs and upscale shopping malls of the nation's sixth-largest city sit in the heart of the Sonora Desert.
This man-made oasis is made possible by a canal that stretches across 336 miles of scorching desert to bring water from the Colorado River to the population centers to the south.
Yet two hundred and fifty miles northeast, that same river flows along the border of the Navajo Indian Reservation where nearly 100,000 people—40 percent of the population—have no running water. Here, among the sandstone canyons and majestic buttes, families drive up to 30 miles to the nearest watering station to fill their pickups with enough 50-gallon jugs to get them through the week.
"People in this country hear all about the plight of people in third world countries, but it's all right here in their backyard. They just can't see it," said Lena Flowler, a Navajo who serves on the tribe's Water Rights Commission.
This dichotomy is the focal point of a complex legal battle that involves seven southwestern states along with hundreds of ranchers, mines, power companies, irrigation districts and individual cities.
At the epicenter of this epic conflict sits an unlikely figure – a lanky former legal services attorney from Ann Arbor, Mich., who has spent the last 22 years as a water rights attorney for the Navajo Nation. While his law school friends have gone on to lucrative careers at big firms, U-M alumnus Stanley Pollack works out of a dingy, barracks-style building in Window Rock, Ariz.—a hardscrabble town on the Arizona/New Mexico border and capital of the Navajo Nation.
From out of this unassuming office, which has an interior decorating scheme better fit to an urban police station than a law firm, Pollack is turning southwestern water law on its head. His legal victories have helped change the rules of the game, giving the tribe a solid foothold in its claim to a substantial portion the Colorado River.
But for Pollack these victories have come at significant personal cost. What began as a youthful adventure has become an entire career – a career played out in an isolated outpost where Pollack—Jewish, single and raised in a sophisticated college town—remains a foreigner. There have been times during his 22-year tenure, when he has been vilified as a traitor and an interloper by the very people he has dedicated his professional life to serving. But bringing water to the massive Navajo reservation—a semi-sovereign nation larger than Massachusetts, Connecticut and Rhode Island combined—has come to define the success or failure of Pollack's professional life.
A zero-sum game
The stakes in this battle are enormous.
For the Navajo, the outcome will determine whether the tribe continues centuries of crushing poverty or gains an opportunity to achieve a place in the modern world on their own terms. For the 6 million citizens of the state of Arizona, a Navajo victory could jeopardize the free flow of water which fuels the state's economy and serves as the life blood to its residents.
Although Navajo water rights may seem like a simple matter of fairness, there is nothing simple about water law in the southwest.
The explosive population growth in Arizona has come in the midst of an eight-year drought—the longest in the past 100 years. Meanwhile, global warming has diminished the annual snowpack in the western mountains, leaving the nation's two largest reservoirs—Lake Mead and Lake Powell—half full. Scientists say there is a 50 percent chance the lakes will be dry by 2021.
With these twin pressures—more people, less water—the stakes have grown exponentially.
"This is a zero-sum game," said Larry Dozier, deputy general manager of the Central Arizona Project, which supplies water to metropolitan Phoenix via the Colorado River canal. "There is no new water. Any water the tribe gets has to be taken away from someone else."
Challenging the "Law of the River"
The legal framework for western water law was established in 1922 when the Congress enacted the Colorado River Compact, commonly known as "The Law of the River."
The compact divvied the water among seven western states (Arizona, California, Colorado, Nevada, New Mexico, Utah and Wyoming). Not only did the compact fail to reserve any water for the Navajo Nation, it stacked the deck against a successful claim by the region's Native population.
Western water law is based on the legal principle of "prior appropriation"—simply put, the first one to put water to practical use gets senior rights to that water. "Practical use," in turn, is defined as agriculture—"Practical Irrigable Acreage" in legal parlance.
So even though the Colorado River runs along the reservation's northern border for 75 miles, the Navajo have no rights to it because (a) they were not using the water at the time of the Compact and (b) virtually none of the reservation's 26,000 square miles is suitable for agriculture.
But over the last two decades, Pollack has engineered a legal assault on the rules based, in part, on a 1908 U.S. Supreme Court ruling stating that the Navajo have a reserved right to the water needed to "establish a permanent homeland" and language in the Compact itself that specifically states that it has no effect on "the obligations of the United States of America to Indian tribes."
Pollack strengthened his case with series of three victories in the Arizona Supreme court, including one that allows the tribe to make water claims based not just on agriculture, but also on mining, which makes up 90 percent of the Navajo economy.
Based on these arguments, Pollack has sued the federal government claiming that it breached its duty to the Navajo tribe when it approved the Compact and has continued to do so throughout the ensuing 86 years.
No time for chest pounding
Although Pollack's legal arguments are compelling, he is, above all, a practical man.
Going to trial "doesn't work for tribes," he said. "It takes years and decades, so adjudication just maintains the status quo—and the status quo is that the tribes have no water."
Pollack is keenly aware that the tribe could win every issue in court and still come away without a drop of water. He notes that this is exactly what happened to the Wind River tribe of Wyoming, which won its suit in the U.S. Supreme Court in 1988 and still has no access to the water they won.
Since it will cost more than $1 billion to build pipelines to the reservation, funding will have to come from Congress.
"Water is all about power—political power," he said. "We can win in the courts, but then the funding has to go through Congress, and all the parties we've beaten in court are now the parties we need to help move the project through Congress.
"My point is that litigation doesn't solve anything. There is paper water and wet water—and wet water development will not happen without a settlement."
But Pollack's courtroom adversaries are not the only people he has to convince. Many of the Navajos he represents vocally oppose his litigate-to-settle strategy.
"No one in Indian Country wants to give up anything," he said. "They feel they've already given up enough. There are a lot of people here who want to pound their chests and say, 'We are the Navajo Nation – we are entitled to every drop of water in the river and we will not settle for anything less than 100 percent of what we're entitled to.' But this stance provides no incentive for the non-Indian parties to settle."
"My goal is to get projects authorized and constructed and get people real water," he said.
Pollack believes there is good reason for hope. At the same time he has been litigating against Arizona for rights to the Colorado River, he has been working on a parallel suit against New Mexico for rights to the San Juan River. After 20 years of litigation, Pollack reached a settlement with New Mexico in 2005 that gives up a substantial portion of the tribe's legal claim in return for construction of a 250-mile pipeline to bring water to the eastern portion of the reservation. (The Colorado River project would serve the western portion of the reservation).
However, the $720 million project still has to be funded by Congress—and Arizona is doing all it can to stop it, fearing the legal precedent would undermine its case in the Colorado River suit.
Public enemy #1
There have been times during Pollack's two decades on the reservation when he has been labeled a traitor.
Early in his tenure he was involved in the prosecution of Peter MacDonald, a charismatic but corrupt chief who ended up in federal prison for fraud, racketeering and kidnapping. During these tumultuous years, the threats against Pollack became physical at times, with rocks thrown through his windows and tensions rising to the point where he needed bodyguards.
Animosity among the more radical elements of the tribe has continued to this day, casting a shadow over his water negotiations. Pollack has been accused of attempting to sell the tribe down the river – of doing the white man's work.
"Some people attack me personally," said Pollack. "There's something about water that makes everyone feel like they're an expert and they are the only ones who can see the true way. The years 2000 to 2002 were the low point. I feel like I have really turned it around since then."
Pollack takes particular pride in the New Mexico settlement, which he sees as a vindication of his overall strategy and proof that the he has been able to win the tribe's trust and support. In spite of the vocal opposition, the tribal counsel voted overwhelmingly—62 to 18—to approve the plan.
"I see that vote as a referendum on my work," said Pollack.
A case becomes a career
Stanley Pollack was 32 years old when he became an attorney for the Navajo Nation and is 55 now. At times, he wonders how a man who had become a well-known legal activist in Ann Arbor ended up spending the bulk of his adult life in an isolated desert town fighting for Indian water rights.
There is a simple answer—"I really believe very strongly in my work"—and there's a more complicated one.
On the purely professional side, the work couldn't be more interesting.
"Most of what I do has never been done before," said Pollack. "There is not much of a body of law, so everything we do is breaking new ground. I've been doing this for 22 years and I learn something new every day."
But that, alone, doesn't explain the personal sacrifices Pollack has made in terms of family, social isolation and money.
At first, living and working on the reservation was an adventure—the extreme environment; the foreign culture; the stark beauty of the land. He reveled in the opportunity to hike, camp and raft in some of the most spectacular and remote parts of America.
But as the years passed, and the adventure faded into routine, other forces took hold to keep him in Window Rock.
There was his growing dedication to the cause. There was an element of stubbornness—or single-minded determination. And there was the knowledge that it would be close to impossible for someone to step in at this late date and get the job done. After all, much of the case law and virtually all of the negotiation strategy has been engineered by Pollack himself.
But there is one other, less obvious, force that keeps Pollack in Window Rock—fear. It is the fear, never completely articulated, that as the months have turned into years, and the years into decades, the adventurous detour that has become his entire professional life could produce nothing.
Pollack is acutely aware of the sacrifice he is making, both personally and economically. But each year he stays with it, his investment grows larger. Each time another year ticks by without a solid agreement to bring water to the reservation, the potential for personal and professional waste—all those years in the desert and nothing to show for it—grows larger.
So the irony of Pollack's professional life is that the more he sacrifices, the more he has to stay.
But he can smell the finish line.
"I'm really close now," he said. "I know I've said that every year for the last 22 years, but if I walk away now…"
is a freelance writer who lives in Providence, R.I. He has been a reporter and columnist for several daily newspapers and most recently was editor of a national legal publication.