Connor, Mike

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Colorado Law

University of Colorado Law School Colorado Law Scholarly Commons Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11) 1999 6-10-1999 Federal Facilitation of Water Rights Negotiations in the West Mike Connor Follow this and additional works at: https://scholar.law.colorado.edu/strategies-in-western-water-law-and-policy  Part of the Administrative Law Commons, Courts Commons, Dispute Resolution and Arbitration Commons, Indian and Aboriginal Law Commons, Natural Resources and Conservation Commons, Natural Resources Law Commons, Natural Resources Management and Policy Commons, State and Local Government Law Commons, Water Law Commons, and the Water Resource Management Commons Citation Information Connor, Mike, "Federal Facilitation of Water Rights Negotiations in the West" (1999). Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11). https://scholar.law.colorado.edu/strategies-in-western-water-law-and-policy/15 Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.     Mike Connor, Federal Facilitation of Water Rights Negotiations in the West, in STRATEGIES IN WESTERN WATER LAW AND POLICY (Natural Res. Law Ctr., Univ. of Colo. Sch. of Law, 1999).  Reproduced with permission of the Getches-Wilkinson Center for Natural Resources, Energy, and the Environment (formerly the Natural Resources Law Center) at the University of Colorado Law School.  FEDERAL FACILITATION OF WATER RIGHTSNEGOTIATIONS IN THE WESTMike ConnorDeputy DirectorSecretary=s Indian Water Rights OfficeDepartment of the InteriorStrategies in Western Water Law and Policy:Courts, Coercion and CollaborationJune 8–11, 1999NATURAL RESOURCES LAW CENTERUniversity of ColoradoSchool of LawBoulder, Colorado1FEDERAL FACILITATION OF WATER RIGHTSNEGOTIATIONS IN THE WESTBy Mike Connor1I. OPENING REMARKSThank you for the opportunity to speak here today.  It is an honor to be able to fill-in for DeputySecretary David Hayes and certainly an honor to speak at this Conference under anycircumstances.My topic today is Federal facilitation of water rights negotiations in the West.  This is an areaof tremendous activity for the Department of the Interior.  Fortunately, the investment of time andeffort is paying off, resulting in some exciting opportunities developing in several ongoingnegotiations which I=ll share with you today.  In particular, I=ll focus on those negotiationsinvolving Indian water right claims, since that=s what I=m primarily involved with in the Secretary=sIndian Water Rights Office.II. NEGOTIATION PROCESS & THE SEVEN STAGES OF GRIEFBefore describing some of the specifics associated with the Federal role in Indian Water Rightnegotiations, I=d like to make a few personal observations about the negotiation process--actuallythe pre-negotiation process.  Unfortunately, unlike life in general, 90% of a successful negotiationis more than just showing up.  A number of factors must come together and the timing has to bejust right for the Parties before negotiations are Aripe.@                                               1 The remarks presented here are the speaker=s only.  They do not necessarily representany official position of the Department of the Interior.2In my own experience, the process leading to serious negotiations is similar in a lot ofcircumstances and can be analogized to--of all things--the seven stages of grief.  I say that a littletongue in cheek but also with some level of seriousness.  Indian water right claims are a threat toexisting water uses and the issues are contentious and emotional too.  Thus, at least in my ownmind--the analogy is not so far-fetched.So let me identify the seven stages, at least the ones I=m familiar with, and provide some examplesof what I=m talking about.  These seven are (1) Shock; (2) Denial; (3) Anger; (4) Manipulation;(5) Sadness; (6) Adjustment; and (7) Acceptance or Resolution.(1) SHOCK - We=re in an era where most of the Ashock@ of Indian water right claims has alreadytaken place.  It probably begin in 1908 with the Winters doctrine but really set in with theArizona v. California decision in 1963 which established PIA as the standard for quantifyingIndian water rights (IWR).  Local shock usually sets in with the initiation of an adjudication ofthe local watershed and the filing of IWR claims as part of that adjudication.  I should makenote, however, of some Anew@ shock that still occurs to individual water users in mostadjudications.  That shock occurs due to the role of the federal government in asserting IWRclaims and the obligation to be an aggressive advocate of those claims pursuant to the UnitedStates= trust responsibility to Indian Tribes.(2) DENIAL - Notwithstanding Winters & its progeny, there is soon the recognition that theadjudication is not going anywhere fast.  Typically, there is several years of litigation overprocedure before anything happens.  In short, it becomes apparent that the status quo willcontinue for some time.(3) ANGER - Sooner or later, though, something triggers a recognition that Tribal water rightclaims are still a threat and that the Tribes, and the United States as trustee, will continue topursue and protect those claims.  Sometimes that something is outside the adjudication. --  For example, during the course of the ongoing adjudication of the Rio Pueblo de Taos3in New Mexico, a number of change of use applications were being filed with the StateEngineer.  The Pueblo of Taos and the Bureau of Indian Affairs felt compelled toparticipate as objectors in the State administrative proceedings in order to protect thePueblo=s water rights.  The result was that the Town of Taos was unable to transfer waterrights it needed for municipal purposes.  -- A similar circumstance occurred in Montana where the Confederated Salish & KootenaiTribes of the Flathead Indian Reservation protected their water rights claims by effectivelyparticipating in the State administrative process to preclude the issuance of new waterright permits to non-Indians within the reservation.  This was litigated to the MontanaSupreme Court and is known as the Ciotti case (1996). -- Sometimes the adjudication itself triggers the Anger Stage.  In the Little Colorado Riveradjudication in Arizona, the court in the early 1990s tried to jump-start the proceedings inearnest by attempting to adjudicate the rights within one small watershed of the entirebasin (Silver Creek).  Approximately 1800 claims were filed in this one watershed and inresponse, over 3500 objections were filed--most by the 4 Tribes who are parties to thelitigation and the United States on their behalf.(4) MANIPULATION  - Rather than deal with the existing situation, there may be attempts tochange the playing field.  The US and Tribes have tried this in their unsuccessful attempts tolimit the scope of the McCarran amendment.  States and state parties have tried similarstrategies. For example:-- In Arizona, the legislature enacted a comprehensive revision of the Arizona adjudicationstatute.  Most of the changes were favorable to state water right holders and unfavorableto IWR claims.  The constitutionality of the amendments were challenged and the ArizonaSupreme Court recently ruled in favor of the Tribes.-- In Montana, after the Ciotti case, the legislature amended the state code & specificallyoverturned Ciotti.  The Tribes challenged and I believe that case was argued before the4Montana Supreme Court in January of this year.  Stay Tuned.-- Finally, there is concern among Tribes that State attempts (either statutory orotherwise) to engage in watershed or regional planning are really calculated to quantifyand limit IWRs outside the lengthy and expensive adjudication process.  Washington &New Mexico are examples of States where this approach is moving forward. (5) SADNESS - This is the stage where my analogy might fail, at least chronologically.  I agreethere=s another stage here but I wouldn=t characterize it so much as sadness but instead,Anger Phase II.  Obviously, things haven=t gone the way some parties had hoped. Additionally, there may have been more litigation (e.g. motions for summary judgment)and the rhetoric may be flying back in forth in the form of legal briefs.  There may even havebeen initial attempts to engage in settlement negotiations but they=re likely more posturingthan productive.(6) ADJUSTMENT - At long last the tide starts to turn & the value of settlement begins tobecome apparent.  This could be for any number of reasons for this: (1) Litigation may havesimply become too burdensome; (2) all the parties may feel some level of risk due to thelitigation; (3) the engineers, hydrologists, and biologists may have had time to do their workand have identified potential solutions that everyone can live with.; or perhaps more simply (4)a large federally-financed solution (as was the case in a number of earlier settlements) appearspossible.In any event, serious negotiations begin to take place.5(7) ACCEPTANCE or RESOLUTION - The structure of a solution has been put together and the2 stages of Anger are long past.  The dynamics have changed entirely and the parties, at least insome cases, advocate for each other to some extent.  In a lot of situations, the only perceivedimpediment to a settlement is the Federal government.  This is likely true.  Settlements are gettingvery complex these days and are now scrutinized by all levels of government.  The settlements nolonger involve just the Departments of the Interior and Justice and the local Congressionaldelegation but now also include OMB, EPA, CEQ, as well as fiscal conservatives andenvironmental advocates on Capital Hill.Notwithstanding the complexity, once the Parties come together, momentum builds, andsettlement prospects become very real.With that, I=ll turn to some specifics regarding the Federal role in Indian Water RightsNegotiations.  Notwithstanding some level of involvement in the process I just described,it is really once the process unfolds that federal participation becomes crucial and anabsolute necessity.III. FEDERAL ROLEThe federal role is premised on the strong belief that settlement rather than litigation is the bestresolution of IWR claims--if not from a quantification standpoint (obviously some compromisewill occur) at least from an administration & utilization standpoint.  Typically, settlements resolvepractical issues which remain unresolved in litigation.  In addition, resources are usually madeavailable which facilitate the use of water by settling Tribes.  Even in the adjudications whichappear successful, such as those involving the Wind River and Yakama Reservations, the Tribesand US are sometimes left wondering what exactly they=ve established through litigation.  Anyvagueness in the decrees will likely result in future challenges as the Tribes attempt to allocatewater in satisfaction of  Tribal goals--goals not necessarily in accord with traditional westernwater law.6As noted, though, the timing has to be right for settlements to come together.  Accordingly thereexists a need for an ongoing program to allow the federal government to assist in the settlementeffort and to monitor it for such time as federal buy-in is necessary.Since 1990, with the establishment of Criteria & Procedures for Participation of the FederalGovernment in Negotiations for Settlement of Indian Water Rights Claims. 55 Fed. Reg. 9233(1990), the Department has relied primarily on the establishment of federal negotiating teams(primarily at the local level) to carry-out the government=s role in IWR settlements.  At present,there are 18 negotiation teams established by the Department.  There are also several teams whichare responsible for the implementation of existing settlements.The stated goals of the federal government in IWR settlements are to:1.  Enable the US to participate in negotiations consistent with its trust responsibility;2.  Ensure that Tribes and allottees receive equivalent benefits for rights which they, and the USas trustee, release in settlement;3.  Ensure that Tribes and allottees obtain the ability to realize value from a settlement whichconfirms Indian water rights; and4.  Ensure that the settlement contains appropriate cost-sharing by all parties benefiting fromthe settlement.The Criteria & Procedures also define the teams responsibilities which are primarily to (1) engagein fact-finding; and to (2) assess & make recommendations regarding the positions of all theparties and potential negotiating positions for the US.  The Criteria and Procedures also identifythe general standards for settlements such as the need for finality, how to determine anappropriate level of federal contribution; types of federal contribution which are specificallydiscouraged, and the process for coordinating with both DOJ and OMB.The teams report to the Working Group on Indian Water Settlements which is chaired by the7Deputy Secretary of the Interior & includes all of the Assistant Secretaries (5) and the Solicitor. The Working Group is responsible for making recommendations to the Secretary of the Interioron negotiation positions and approval of settlements.The primary support for the working group is the Secretary=s Indian Water Rights Office(SIWRO) which consists of four attorneys, one policy analyst, and administrative support staff. The attorneys serve as liaisons to the negotiation teams in the field which means they give policydirection; enable the government to take a more proactive role at appropriate times during thesettlement process, and coordinate funding needs with the BIA & BOR.  In sum, the SIWROserves to connect the DC policy- makers with the teams.IV. CURRENT ACTIVITIESAt the start of the 2nd Term of the Administration, there was obvious concern that no new Indianright settlements had been enacted.  This situation was due to several reasons, including:-- dwindling water supplies &-- budget restrictionsIn response, a number of consultations with Tribes & others were initiated beginning in 1996 todiscuss these problems.  Most everyone was tough on the government=s role & it was made clearthat unless there was progress--regardless of the reasons or excuses--history would be a harshjudge of the Administration=s role in protecting & facilitating the use of IWRs during this era.The Secretary responded by reaffirming the special role played by the Secretary=s Office in waterrights settlement activities (that being coordinating the resources of all the relevant agencies) &assigning liaisons from the Secretary=s Office for each team to establish a direct link between theteams and the Washington-based policy makers.  This was a direct response to some of thecriticism heard during the consultations.  The Secretary also hired David Hayes as his Counselor8on Indian water rights issues and with the support of the SIWRO, they elevated these issueswithin the Administration and garnered support for their resolution.As a result, since the start of the 2nd term, there has been a significant amount of  activity andaccomplishments in the area of Indian Water Rights: e.g.A.  In Nov. 1997, Secretary Babbitt & Governor Kitzhauber signed a Final Settlement Agreementon the water rights of the Confederated Tribes of Warm Springs Reservationin Oregon.B.  In Oct. 1997, the U.S., the State of Montana, and the Chippewa Cree Tribe of the RockyBoys reservation reached an agreement-in-principle on the Tribe=s water rights.  That settlementhas been pending in Congress since that time and the Administration is optimistic that thissettlement will be enacted this year [Hearings have been scheduled for this summer in both theHouse & Senate].C.  In April 1998 and February 1999, the U.S. and Jicarilla Apache Tribe secured final decrees ofthe Tribe=s water rights in 2 separate adjudications (Rio Chama and San Juan River) in NewMexico, thereby achieving final implementation of the Jicarilla Apache Water Rights SettlementAct of 1992.D.  On March 31, the Secretary and various state parties in Arizona signed a final agreement tofully implement the San Carlos Apache Tribe Water Rights Settlement Act of 1992.9** Implementation Activity Related to Existing ASettlements@ has been a major focus of theUnited States efforts during this Administration ** In addition, the Department has a number of ongoing initiatives some of  which we are optimisticwill result in settlements before the Secretary leaves office:A. Gila River Indian Community/Central Arizona Project Settlement -- This is a huge settlementwhich would settle the Gila=s claims to over 1.2 Maf of water in central Arizona.  This is actually4 settlements: (1) Gila River Indian Community;=s claims; (2) Allocation of CAP water betweenstate and federal parties;  (3) financial issues between the US and the CAWCD; & just for goodmeasure -- (4) settlement of the issues remaining from the Southern Arizona Water RightsSettlement Act (SAWRSA) involving the Tohono O=odham Nation.  We may also be able to settlewater rights issues on the upper Gila river system (Globe Equity) which involve the Gila RiverIndian Community & the San Carlos Apache Tribe.  And if that=s not enough,  this settlement willset the stage for additional IWR settlements in Arizona due to the resolution of CAP waterallocation issues.B.  Last August, after some contentious hearings on Capital Hill regarding proposed legislationknown as ALP-Lite, the Administration unveiled a proposal to achieve full implementation of theColorado Ute Water Rights Settlement Act -- a proposal which would also resolve the issuesassociated with the controversial Animas LaPlata Project.  We have initiated NEPA complianceon the Administration proposal and are moving forward in an effort to resolve this matter onceand for all.C.  Lummi Tribe Water Rights Settlement in the State of Washington -- (groundwater issuesprimarily) Counselor to the Secretary Bob Anderson is very optimistic that this settlement isachievable during this Administration.D.  Shivwits Band of Paiute Indians - Small settlement which has just recently produced some10very workable proposals for settlement & one in which the Utah Congressional delegation is veryinterested in.E.  Other Settlements in which progress substantial progress is still being made: Little ColoradoRiver adjudication in Arizona (Navajo, Hopi, & Zuni Pueblo); Taos Pueblo water rights claims;and the Soboba Band of Mission Indians in Southern California; and just recently, the claims ofthe Walker River Paiute Tribe in Nevada.Of course, as I referenced earlier, even once the parties reach agreement, a full and finalsettlement is not assured (e.g. Rocky Boys).  In this era, it is absolutely critical that the Tribes,non-Indian parties, State, and Federal government all work together to achieve final enactment ofthe settlement.  Only then will the results negotiated for by the stakeholders--the exact process bywhich these matters should be resolved--be secured and implemented for the benefit of all.

Federal Facilitation of Water Rights Negotiations in the West

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Federal Facilitation of Water Rights Negotiations in the West

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