BOARD01872

• Board Meeting Date: 9/27/1999
• Description: Colorado River Basin Issues - Interior Department's Indian Water Rights Report
• Board Meetings - Doc Type: Memo

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The four Tribes, dissatisfied with the FWS responses, sent a notice of intent to sue FWS on June
28, 1994. They claimed NEP A and ESA violations, including: (1) the economic analysis did not
examine the affect of the designation on each tribal economy; (2) FWS violated its trust
responsibilities by not protecting tribal trust water resources; (3) FWS failed to show that the San
Juan River contained unique habitat; (4) FWS failed to consider and address their comments; (5)
FWS improperly concluded that ALP and NIIP would jeopardize listed fish and, without
justification, had reinitiated consultation on ALP and NIIP; and (6) FWS violated NEPA by
failing to prepare an EIS on the designation. Senator Ben Nighthorse Campbell of Colorado also
wrote to the Secretary on this issue.

The FWS and its attorney invited the Tribal attorneys to an August 12, 1994, meeting to discuss
the Tribes' concerns, A series of meetings ensued where the parties discussed issues related to
the notice of intent to sue, including the Tribes' assertion that as part of the Federal
Government's trust responsibility to Indian nations, the FWS must incorporate Tribal water
rights into the ESA Section 7 environmental baseline regardless of whether those rights have
been exercised, As a result of these meetings, the FWS agreed to request funds for the
economists to reevaluate the economic impacts to reassess the magnitude of impact.

FWS obtained fiscal year 1995 funds to investigate an alternative method of assessing the
economic impacts of designation on each of the reservations using existing data, To provide
more data to the economists the Tribes agreed to respond to questionnaires; however, much of
the information requested did not exist. The cost of collecting such data was prohibitive.

In its October 1996 draft report analyzing the economic effect of critical habitat on the four
Tribes' economies, the economists relied on existing information to mathematically segregate the
Reservation economies, and even assuming that NIIP and ALP would not be completed, they
again concluded the impacts of designation would be small: only 0.08 percent of the total Tribal
economies. The Tribes criticized the draft economic report because they believed: (I) if the
designation had been concurrent with listing, the combined impacts of the listing and the
designation would have been considered; (2) the employment impacts were underestimated; (3)
FWS did not take all actions to protect and recover the fish before interfering with Tribal
resources; (4) FWS should have requested more funds to fill the gaps in Tribal economic data;
(5) the economic report mischaracterized Tribal development projects; (6) the resulting

Based upon information provided during the public comment period,
the New Mexico analysis was revised to include an additional 52,000
acre-feet of future water depletions foregone. Additionally, cropping
patterns and yields for NIIP were adjusted based on information supplied
by the Navajo Nation and Bureau ofIndian Affairs during the comment
period. Likewise, when data provided during the comment periods
seemed reasonable, those economic data were incorporated into the
models.

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