Interview Transcript
Clive Strong
Q: Does this case set precedent in any way? What is its scope? Is it a very large case in terms of these cases?
A: Well, It's certainly a unique case. It's the first time the court has had to deal with the assertion of an implied water rights claim off of an Indian reservation.
Q: Generally, what do they do?
A: Typically, the way the claim is set up right now is the tribe asserts that because under its Nez Perce treaty it reserved the right to fish at all usual and accustomed fishing sites, that carried with it an implied right to the use of water extending throughout its aboriginal territory, which in Idaho includes the Clearwater River, Salmon River, and portions of the Snake River.
Q: So, when you say it is unique in the sense that there is a certain amount of off-reservation right, would that mean that most cases in this arena are generally on reservation? How much water can we get just within the bounds of the reservation?
A: So far the implied reserved water rights doctrine has been limited primarily to on-reservation type claims, and this is the first time the court has had to deal with the assertion of a claim off-reservation.
Q: What are we talking about in terms of water? What have the Nez Perce asked for? We are talking about lots of water, right?
A: The claims are for pretty much the entire natural flow of the river, and so as a consequence it has a real implication for any of the existing uses within the Salmon and the Clearwater River drainage basins as well as the upper Snake River.
Q: What's the best way to describe what the big difference between Indian water rights or reserved water rights as opposed to say first in time or prior appropriation?
A: The big difference is that the implied reserved water rights doctrine is an exception to state law. Traditionally, Congress has deferred to state law, but in this unique area which requires preserved water rights, it preempts state law and is not bound like normal state water rights to present beneficial use. It encompasses both present and future needs of the tribe.
Q: It also gets into the area of aboriginal use doesn't it, for instance, the concept of time immemorial?
A: In terms of the elements of the water rights, the priority date asserted by the tribe is time immemorial because of their aboriginal existence in this particular area. Another area that is different is the scope of the claim. Traditionally under state law, beneficial use doesn't typically extend to cultural claims that we are talking about here, and traditionally when we are talking about fish and wildlife, which are under state jurisdiction, water rights for those purposes are controlled exclusively by the state. It's not something you can have private appropriation water for.
Q: So, basically this is an issue where the standard first in time, first in right really doesn't apply?
A: Exactly. If the tribe is correct that it's entitled to an implied reserved water right that would preempt state law and would take a priority date as of time immemorial, essentially becoming the first water right on the river.
Q: What is the state's interest in this? Why does the state spend so much time on this? Why is it important to the state to work this out?
A: There are multiple reasons for it. The first reason is the state has a strong sovereign interest in ensuring its ability to allocate the limited water supplies for the various beneficial uses that we believe are important to sustain the state's economy and to sustain the state's recreational and fish and wildlife interests. A second reason is that we as a state have an obligation to recognize federal treaties, and in this instance, the Nez Perce tribe has a treaty that we have an obligation to recognize so we need to find a way to accommodate the state and tribal interests. The third reason is we have a shared interest in the fish and wildlife resources and making sure they're appropriately provided for through the various activities we conduct in the state.
Q: What is the state's position in this matter?
A: The state's position is very simple. We do not believe that the tribe has a reserved water right under the Nez Perce treaty. Having said that, on the other hand, we recognize that there are risks in litigation and so the reason we're at the table is to try and find a way to accommodate, not only the state's interests, but the tribal interests as well.
Q: Why don't you believe that the Nez Perce have the right you just talked about?
A: These are always difficult issues but we've gone back and done historical research and reviewed the various treaties and one of the principal reasons for creation of the reservation was to open up the lands outside the reservation to non-Indian settlement. If these claims are recognized in the form in which they're asserted now, it would effectively defeat those purposes and for that reason we believe Congress did not intend to leave with the tribe a right that would defeat the very objective that was achieved in creating the reservations.
Q: Judge Wood in his opinion also indicated that pursuant to the Idaho Power Case in his reading of case law that the tribe doesn't have an absolute right to the original fishing conditions that existed when they got here -- they have a right to a fair share of the fish that can be caught and it's the state's responsibility to guarantee the quality of the water and everything but they don't have a right to a particular amount. Is that your read of the situation?
A: Certainly we recognize the Nez Perce tribe has a right to hunt and fish, but that right is in common with the other citizens of the territory and the principles that we operate under, the federalism principles, is that the state was given the responsibility to provide for the water resource allocations and so it's through the water, the state water planning process, that we provide for fish and wildlife, not through a federal treaty.
Q: If these claims in fact were perfected, would the Nez Perce be in such control that they could ask the dams be removed to protect the salmon? Is that your reading, if all the rights were granted them? That they would have that kind of power?
A: I don't see that as being a reasonable outcome of the case. This simply deals with what water flows would exist within the tributary streams within the state of Idaho. The actual operation that the dams could go forward even with these claims in place.
Q: How would it affect other people if the Nez Perce were to have these rights granted? What could potentially happen, if it's not as far as the dams, what harm or injury could result?
A: The real problem, at least from the state's perspective of these claims, is that with the priority date of time immemorial, they become the first water right on the river, so all of the existing uses within these various basins in which claims have been made would be junior in time to those rights and subject to curtailment in order to satisfy them.
Q: Wouldn't that include the operation of the dams too?
A: Potentially the Idaho Power company dams would have a junior water right. Certainly if the claims were recognized it would impact the storage of water behind Hells Canyon dam and the USBR projects in the upper Snake River.
Q: Why negotiate now when you do have Judge Wood's opinion, an opinion that is adverse to the tribe?
A: The reason we're continuing negotiate is that when we entered into the negotiation process we agreed that we would follow a two-track process, one to pursue the litigation, the other to pursue the negotiation. If we can find an outcome through negotiations that is acceptable, that reduces risk, and so it's worth exploring that alternative.
Q: How long has the adjudication been going on?
A: The Snake River adjudication was commenced in 1987. We've been in formal negotiations with the Nez Perce tribe since the mid 1990s.
Q: Why has it gone on so long?
A:There are very few water issues that are easy to solve. At the heart of this particular case are some significant sovereignty issues and significant economic as well as social issues and trying to find accommodations acceptable to all parties requires time.
Q: What has the experience been like for you to be involved with this case and these negotiations?
A:It's been a very interesting process. Certainly in negotiations when you sit and talk across the table with people of different points of view you begin to understand their interests better. It gives us an opportunity to try and find some common ground. Probably wouldn't have had that opportunity absent the negotiation process.
Q: One of the issues that Judge Wood brought up is that these claims are not only outside the reservation but outside the aboriginal territory itself -- is that the case?
A: Some of the claims are certainly outside the aboriginal territory. A large part of what Judge Wood was addressing in his decision was the diminishment of the reservation over time. Certainly these claims are in our mind way outside the area that's now even arguably consisting of the reservation itself.
Q: So you agree with the diminishment part of his argument, which of course the tribes are contesting . . .
A: Yes, the state of Idaho was the one that brought the diminishment issue before the court.
Q: Why do you feel that's important?
A: The diminishment issue is important because it goes to the heart of who has the sovereign governing powers over these particular waters. From the state perspective we certainly recognize that the tribe has a right to govern its people within the area that Congress and the federal government has recognized as the reservation. The question is what is the reservation? And unfortunately the United States over time hasn't been quite clear in what it's done with the reservation and so its left the state and tribe in the position of having to sort out these jurisdictional boundaries.
Q: And you believe in fact that it has been diminished?
A:Based up on our review of the historical documents we believe that in 1894 when Congress opened up the Nez Perce Indian reservation to non-Indian settlement that it met the standards, the legal standards, for diminishment of the reservation.
Q: Judge Wood also mentioned that the amount of claims added up is actually 105% of the average flow. Is it the case that the actual water rights they have claimed are quite large not only in breadth but in depth?
A: Essentially the claims, one interpretation of the claims, is that they are for the entire natural flow of the rivers. If in fact those claims were quantified at that level, there would be no other uses made of that water supply.
Q: Is there also a canon of treaty interpretation that says that Indian treaties cannot be rewritten or expanded beyond their clear terms -- in other words to remedy an injustice you cannot keep going back to the treaty and expanding it, it's more on the face of it?
A: Indian law is a very unique area. Each case turns on its own unique facts but there are canons of construction. One of them is you would interpret a treaty as the tribe would have understood it at the time. Even with that canon of construction, you can't go in and try and remedy an injustice. The court is required to comply with the plain language of the treaty.
Q: So in plain language that simply means at the time of the treaty they couldn't have imagined certain things, right?
A: At the time the treaty was created, it could not have been imagined that Congress would have provided that the tribe would have control over all the water supplies in the west. In fact it's just the opposite, when we were developing the west the whole idea was to open the lands to development, and to allows these claims to go forward would defeat that purpose.
Q: One area that I assume you do agree with that has been litigated and is in case law, is that in the settlement of Indians they were to be turned into agrarian peoples and not nomadic. The case law basically on water rights says they should have enough water to fulfill that and that was what the United States government was intending.
A: Certainly the state recognizes that principle and the fact that we've worked with other tribes to negotiate settlements to recognize the water necessary to make a homeland for the tribes.
Q: What's next?
A: The next steps for us -- we'll continue the mediation process. We've got a couple of meetings scheduled for the next few months and we are going to try to bring to closure the settlement discussions. We've been at this for a number of years. I think we know what the principles are that are necessary for settlement. We just need to come to grips with whether what we all know provides a framework for settlement. While we are doing that we're still pursuing the litigation alternative, and the Idaho Supreme Court is in the process of reviewing Judge Wood's decision.
Q: How will that work? If they affirm it, will you continue with the negotiation?
A: There are two steps on that appeal to the Idaho Supreme Court right now. There is one question raised on tribe disqualification. Certainly if we get a decision from the Idaho Supreme Court, then the last recourse on this issue is the United States Supreme Court. I think that it is unlikely this case will be cert-worthy for the United Supreme Court. So that will probably lead to the conclusion of the case.
Q: Do you have any idea how much longer this could go on?
A: Realistically the negotiations are probably in the final stages. The final conclusions of the case, I expect to be reached within two or three years.
Q: Do you understand now, after having worked with the tribes for a while, their emotional and cultural claim to these natural resources and their disillusionment as they look back at the Dawes Act and the diminishment? They obviously have the resources now that they didn't have then to contest things. It may be a little bit late but certainly there has to be a lot of feelings involved.
A: Certainly. If you're going to be an effective negotiator you've got to understand the motivations of the other party and we can certainly understand and appreciate the tribe's tie to the resources and their desire for a certain outcome. From the state's perspective, we are left with trying to deal with the treaties the United States entered into and we are bound to honor those as is the tribe, and we are trying to do so.
Q: What are the reasons the negotiations are in executive session and are not public?
A: The reason that we have to do these things in executive session is because obviously there are some very sensitive issues that we're discussing, and parties -- in order to explore whether they're willing to make concessions in one area -- need to have the flexibility and freedom to talk openly about those without the concern that that becomes an issue in the press that then frustrates the negotiation process.
Q: Nevertheless, it is public tax money that pays for such things, right?
A: Absolutely. The important point that needs to be made about this is that while the negotiations are occurring in executive session, at the end of the day if there's an agreement reached that agreement has to go before the court, will be subject to public review, will be subject to review by the legislature and by Congress.
Q: Would that negotiated settlement include compensation i.e. monetary compensation for the loss of water rights?
A: Typically, Indian reserved water rights settlements involve some form of compensation in combination with some accommodations on other interests. It is not unreasonable to expect that that might be part of the package.
Q: Currently, do you have any sense of how much it has cost the state?
A: In terms of how much it costs, that is something we consider attorney client privilege.
Q: Will there ever be a breakdown of how much this has cost over time to do the negotiation?
A: Certainly, they [the public] will have that kind of information because we have been providing it to the appropriate elected officials as we move along.
Q: Do you feel it has been worth it after all these years and what I can only assume is millions of dollars?
A: The negotiation process isn't the costly portion, it's the litigation itself. Certainly any time you can sit across the table and talk to your other interests in the basin, you're going to find accommodation. You may not find complete resolution, but you're going to find accommodation and understandings where you might avoid some if not all conflicts.
Q: What is the difference between a federal reserved water right and a state beneficial use water right?
A: Under state water law, under the prior appropriation doctrine, you perfect a water right by diverting it and putting it to a beneficial use and that beneficial use has traditionally been viewed as an economic opportunity. Now under state law, we also have defined fish and wildlife protection as a beneficial use but those types of rights can only be established by a state. The difference between the prior appropriation doctrine and the federal reserved water rights doctrine is that the federal reserved water right doctrine is based on federal law, not state law, and it's based on an implied intent of Congress. And so what we're left with is going back to historical documents and trying to understand what Congress intended to do. Assuming that a federal reserved water right is found, then the key difference between that and a state water right is that it is not subject to a current beneficial use limitation. It covers future as well as current uses. And it's not subject to forfeiture or abandonment like state law would be.
Q: One of the seminal case would be Winters?
A: Winters vs. United States in 1908 was the first case that recognized Indian reserved water rights and then there was the California vs. U.S. in 1962 that has extended that principle.
Q: And Winans?
A: Winans is a case that deals with hunting and fishing rights, not specifically water rights. It is those two lines of authority between the hunting and fishing rights and water rights that are converging in this particular suit we are dealing with.
Q: So, there really is no clear case law that you can look at; there really hasn't been a case exactly like this one, has there?
A: There's been no case like this. There have been some limited cases in Washington state dealing with streams that are on reservations for instream flow purposes, but nothing that has dealt with the scope and breadth of the type of off-reservation claims we're talking about here.
|