Transcript

Aaron Miles/ David Getches: Was it deliberate to . . . make the tribes go back to [being] a more junior user?

Miles: One of the things I have concerns about [is not just] water rights allocation -- that is just one of the concerns from the tribal standpoint -- but also the quality of that water is very important and integral to the cause of the culture of the Nez Perce tribe. And so when you see that everybody is telling the Indians to quit fishing but nobody is telling the farmers to put shrubbery or riparian zones around their farm fields and things of that nature, there is no incentive programs to do things that protect the water quality, not just looking at water quantity in this particular case. The other question I had for you David is when did the State -- was it a deliberate attempt to make instream flow secondary to beneficial uses in the "first in time, first in right" seniority case that we are looking at? I mean in terms of making the tribes go back into a more junior user point of view rather than a senior point of view?

Getches: The tribes certainly have an important claim to priority for the water. The way the Supreme Court put it, it dates back to the time the reservation was established. Most non-Indians users came after that, so there is a priority there. The question of what the tribes can do with that water is one that hasn't been fully answered by the courts. If they have water allocated for agriculture, can they switch it to instream flows? I think most people believe that they can, but the question is what procedures do they have to go through and whose interests are considered -- do you consider the interest of the nearby irrigators when you make that change of use to instream flows, which necessarily means water constantly flows in the stream and you can't dry up the stream. So that is an unsettled area. It is interesting -- we have talked a lot about priorities, and when you think about priorities, who would have better priorities than the native people and the native fish? I think the introduction here was that these are coming as wild cards late in the game.

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