Interview Transcript
John Simpson
Q: Why has this has gone on so long?
A: I believe it's gone on for the period it has -- since the early 90's as part of the adjudication process -- one, because of the extent of the claims that they've made and the potential impacts; and, two, because of the ramifications to all parties, not only the tribes and the United States and the trusts they have made, but also to the state of Idaho and all the private property owners.
Q: What is the extent of these claims?
A: The Snake River Basin Adjudication is an adjudication of all water rights within the Snake River drainage area, which essentially encapsulates all of Idaho south of Lewiston, including even the Clearwater system.
Q: What about the Nez Perce claims specifically?
A: Those Nez Perce claims encapsulate all of that area because of the claims they made. They made instream flow claims that extend on the Snake River side all the way up to Hells Canyon. Salmon and Clearwater drainages throughout the whole basin into the headwaters of those basins. But even on the Snake River side, despite the fact that they made these claims only up to the Hells Canyon reach, those claims would have impact further up the drainage.
Q: Why have you been involved for so long and why do your clients care so much about these claims?
A: Our law firm, representing water users in southern Idaho, has been involved in the adjudication of the Nez Perce tribe's instream flow claims since 1993. The reason we've been involved in those claims and the adjudication is the ramifications if those claims were decreed. That is, the impact on our water rights, the rights of irrigation users in southern Idaho, and even the rights of drainage basins, could essentially cut off development, cut off existing development, if they are decreed. We've been involved in efforts to protect those water uses in those basins.
Q: How seriously do you take all these claims? They have filed so many one would think they can't possibly get that amount.
A: The court has taken those claims seriously. The court has been moving forward with the adjudication of those claims and at the same time allowing parties to attempt to settle those claims. Both sides have been very active, not only in the litigation, but in the settlement discussions.
Q: Why are your clients so worried? What could happen if some of these claims were perfected?
A: On the Snake River side of their claims, they've essentially claimed all the water in the Snake River area, and that would be all the water in the basin. So essentially water that is now stored behind reservoirs could be subject to a call by the Nez Perce tribe to fulfill their water rights. That in and of itself would cut off all irrigation to those individuals we've been representing. And those rights have been perfected for years, nearly 100 years, through contracts with the federal government. And without the water, the land can't be irrigated.
Q: The tribes say they were here before, since time immemorial.
A: Yes, they were there. And there are treaties that reflect that. But those treaties in our view were not perfected with a water right in mind.
Q: In other words, it was thought at the time the treaty was signed that they could fish but they weren't necessarily entitled to all of that water?
A: They had a right to fish, a right to continue on at their usual and accustomed fishing grounds, but those fishing rights did not equate to a water right.
Q: How has this process been for you over all these years, this negotiation process, think it has been beneficial?
A: It has been frustrating because it has continued on for ten years. We'd like to see it brought to a resolution, and we feel that the adjudication court in granting our motions for summary judgment did bring it to resolution. That unfortunately is not the view of all parties in the case. Therefore we are attempting to settle through negotiations some of the pending issues and the concerns that the other parties have. In addition to their adjudication claims, we have been concerned about the other obligations that federal statutes seem to put on water coming out of Idaho through the Endangered Species Act. And the negotiations are an effort to resolve in our view all threats to Idaho water, to allow irrigated agriculture to continue as it has for 100 years, allow development to continue -- Idaho's becoming more attractive for development -- and people moving in to Idaho. We want to ensure that the way of life that all Idahoans have been accustomed to can continue.
Q: How will this work? Negotiations obviously result in settlements, which result in compensation or money or loss of rights. What potentially would your clients have to give up in order for a settlement to work?
A: That's part of the negotiations, and of course those are confidential at this point. Our effort is to continue the way we have, to protect those water rights that we have a vested interest in, and yet try the best we can to address the concerns that the tribes have and the federal government has in the ESA context at the same time.
Q: Do you have a sense of how many people, individuals, or entities are represented on your side of things? How many people stand to be affected?
A: As you travel up and down Interstate 84 through southern Idaho it looks pretty green during the summer with the irrigated agriculture. Without that water that would all be dried up, and the number of farmers throughout the basin that would be impacted would be extraordinary. Very few farmers if any could exist in the manner that they've been accustomed to. Beyond irrigation development are the municipalities. While municipalities traditionally have groundwater rights, those groundwater rights are hydrologically connected to the Snake River. And therefore if the Nez Perce tribe had a water right and had the ability to call out all water rights above it, it would impact municipalities and the uses municipalities make of the water. Further, industry and domestic wells could potentially be impacted. The ramifications are to anyone that uses water in the state.
Q: When people look at the map and the bulk of the claims it shows central Idaho basically instream flows but that doesn't mean that's the only place in the state that is affected. Why is that?
A:The claims that they've made on the main stem Snake, for instance, are below Hells Canyon dam, but those are for instream flow claims. That is, during certain times of the year, their claim is requesting a certain amount of water be available for a number of purposes -- flush flows, channel maintenance, riparian maintenance -- and so those flows have to come from tributaries, drainages, above where that claim segment is made. So water from the upper Snake River above Brownlee reservoir would be required to satisfy that right, if decreed.
Q: So other people hundreds of miles away in the state are affected by this, right?
A: Anyone who is upstream of a water right, that if that water right is not being fulfilled, could be subject to curtailment in order to fulfill that water right. That's part of the prior appropriation doctrine which is the law in Idaho. That could extend all the way to the headwaters in Wyoming, in the Jackson Lake area. Those are the headwaters of the Snake River. That water could be subject to administration of those water rights if decreed.
Q: What do you think is behind this volume of claims? What is your sense from over the years of negotiations of why they want that much water?
A: I believe that the goal of the Nez Perce tribe is to ensure that there is a fishery in the Snake River. There's been the ongoing conflict between whether or not to remove the lower Snake dams and those issues downstream. For years, people have felt like if you're not going to remove the lower Snake dams below Lewiston, then you need additional water to ensure that fish can migrate through the system, either on their way to the ocean or back upstream. Therein lies the need for additional water. Also, therein lies the pressure that's put on Idaho to satisfy what we've always felt is a problem we're not responsible for, fish migration.
Q: Do you understand their feelings, now after talking with them for all these years?
A: I have a better understanding, from having been part of the litigation and deposing a number of the tribal elders, about what some members feel about the fishery. I believe it's not that much different than if you were to talk to a number of Idaho farmers that have been farming for 100 years, what the land has meant to them and what the water means. It's their livelihood. Probably just like some tribal members would feel the fishery is their livelihood. The water and the land is the livelihood for agriculture in Idaho.
Q: When you talk to Native Americans, specifically the Nez Perce, they will say we have been harmed so much over the past several hundred years, now it is time for somebody else to feel a bit of curtailment. There is still acrimony, bitterness that carries through in the sense of yes, the farmers may have had it for a hundred years but they were here earlier. Now it is time for other people to feel the pain they felt.
A: Certainly that's come up in discussions that have happened with tribal members. I understand that. We understand where their feelings lie. But at the same time, that doesn't mean we feel like we should be subject to the pain or the curtailment, because if there were broken promises 150 years ago, that's unfortunate, but that doesn't mean that promises that were made 100 years ago to people coming out west should then be broken at the same time.
Q: And that is part of it too, the government specifically encouraged people to come out and settle at the same time they were putting Indians on reservations, they were also encouraging people to settle so you have the two coming together?
A: In our view the intent of the treaties with many of the regional tribes was to encourage them to become farmers, just as in the same way that they were encouraging people to come out and settle the land. Settle the land and we'll provide the structures to provide you water, to develop the land and build your families and your heritages. For the people that we represent, those heritages go back to a time that wasn't as comfortable as today.
Q: Let's talk about the fountains and springs, what is your concern there?
A: Beyond the instream flow claims, the tribe has made nearly 2,000 claims for springs and fountains. The basis for these springs and fountains claims were in part of the 1863 treaty wherein lands were ceded back to the United States. There is language within that treaty that discusses springs and fountains not directly connected to or adjacent to rivers and streams flowing through that ceded area. Those springs and fountains now are on public lands and private lands throughout the basin. Many of those private springs on private lands have been developed by private individuals. For nearly 150 years they have been used by those individuals and now they are being threatened, the use of those spring are being threatened by those claims. Because those claims are making a claim for half of the flow of the water. Quite logically, if those claims are decreed, once you have a water right you need access to use that water. In our view, private property rights come into play then. The people we represent, while they're not directly impacted, because these claims are on ceded lands in the Salmon and Clearwater drainage in large part, we feel a responsibility to other water users, to other landholders, to assist them in protecting their rights against these claims.
Q: You don't have any problems then with the claims filed on the reservations?
A: Those claims have not been recorded yet. But even within the present day reservation there are landholdings within private hands. Obviously that's still an issue with respect to those private landowners.
Q: 80% of people living on reservations are non-Indian.
A: And so it's a very sensitive issue. Either talking about the on reservation claims or within the ceded area, people in northern Idaho are very sensitive to the issues with respect to the relationship between the Nez Perce tribe and the people living in that area.
Q: Do you think this can be worked out?
A: I'm hopeful that it can. A lot of effort has gone into it over the last 10 years in an effort to work it out. We have made some progress, we hope to continue to make progress, and quite frankly any time you have discussions they should be beneficial. Whether or not you ultimately reach a resolution, the discussions will be fruitful, even in other actions. If we have to go to litigation, we will. Even when litigation is filed, in most instances it results in a settlement.
Q: Why continue to negotiate when you have Judge Wood's decision going in your favor?
A: We continue to negotiate because there is the Endangered Species issue out there with respect to flows for flow augmentation. If we as a group can resolve the issues surrounding Idaho's water for some period of time, 20, 30, 40, 50 years, that would bring certainty to Idaho, not only to the water users but to people who want to develop Idaho in a certain way. It gives you the ability to do some long term planning.
Q: So, this negotiation is not just about specific rights but is about the larger issue?
A: Yes, that is the effort. If we can resolve a number of the pending issues with respect to water, that would be our goal. If we can't, then obviously there is always the ability to try and solve the portions you can today and leave the others unresolved.
Q: With such large issues that involve public policy, that involve tax dollars, things that the general public is interested in, is it fair to have them be done behind closed doors? These are huge issues that involve all citizens.
A: I think that any process that involves a number of issues that are being discussed ultimately would have to be approved on a broader scale. There would have to be public disclosure and involvement, but under the contexts that we are talking about -- adjudication claims -- then if we can broaden that to include other issues that not only the Nez Perce tribe is concerned about but also irrigated agriculture is concerned about, then I think that is probably the proper context. You are always concerned about proper disclosure and keeping people informed. Even with the variety of interests that we do [represent] -- irrigated agriculture is not as widespread in northern Idaho as it is in southern Idaho -- hopefully their concerns are being represented by the state of Idaho through the Attorney General's Office.
Q: So, for the record, who do you represent, who are your clients?
A: We represent a group of agricultural interests who are commonly called the Federal Claims Coalition. They include surface water interests above Hells Canyon, which incorporates nearly 3 million acres of irrigated agriculture. The entities I represent are irrigation interests east of Twin Falls above Milner Dam, the area encompassing Water District 1.
Q: What is the Federal Claims Coalition?
A: The Federal Claims Coalition was developed in an effort to represent as wide a group as possible of irrigation interests, municipality interests, and other surface water interests in the federal claims that were filed in the adjudication. Originally that included not only native American claims but also other claims.
Q: What are some of the concerns of your clients?
A: On a global sense, they are very concerned about water uses in Idaho. The threats to Idaho's water are more than just within the state. They come from outside the region. The Columbia water system wants more water for various purposes, there are water quality issues now that people are concerned about, there is instream flow purpose issues. 20, 30 years ago a farmer just had to be concerned about his local issues, delivering the water to his headgate and using it. Now, there are pressures put on the resource, year round, and those pressures are going to continue to evolve and impact farming in eastern Idaho.
Q: So what you are saying is that this is a small slice or a medium slice of the panoply of issues that are facing them. And they are concerned about them all, including this one.
A: Yes, and they understand that they are getting more and more complicated every year, and not only do they need legal representation but they need political representation. There is a greater awareness to keep their congressmen updated on the pressures that they are feeling and the pressure to resolve these issues so that not only can they continue to farm as they have for years but they can they continue to recognize the importance of the water for recreation, for wildlife and habitat, and that we can attempt to work together to resolve those issues rather than to try to take all the water for one specific purpose. They understand and recognize that the water has a number of purposes just like when it is being stored behind a reservoir for irrigation. Before it is ever delivered for irrigation, it is used for a number of different purpose -- power generation, recreation, fish and wildlife, habitat.
Q: So in that recognition do you think your clients will be able to give up something?
A: We feel like we have given up something. Part of what we are talking about giving up are some of the development opportunities that are present. If there were no ramifications to the utilization of water or we weren't willing to send out water for a downstream problem as we view it, then the water can be used for a number of additional purposes. But over the past ten years, we feel we've made a big effort to try and assist the federal government in its efforts to try to study and resolve the salmon issue in Columbia River system, and we will continue to try to help to the extent possible without diminishing our ability to have a livelihood.
Q: Any additional comments about this issue?
A: In the negotiations and in the litigation, the water users have worked very closely with the state of Idaho and the representatives of the state. The state has been doing a very good job of representing the interests of the state, as diverse as they are, and our effort has been to assist the state and take the lead in litigation and negotiations where necessary but really rely upon the State. And I do feel like the state of Idaho has attempted to represent all the interests to the extent possible. It has also stated where it couldn't. It's made it well-known to those interests that they need to be involved and that's where water users and all interests in the state need to be. They need to be involved in this process because of the political impact and the potential impacts on their livelihoods.
|