- Does this case set precedent in any way? What is its scope? Is it a very large case in terms of these cases?
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- Generally, what do they do?
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- 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?
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- What are we talking about in terms of water? What have the Nez Perce asked for? We are talking about lots of water, right?
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- 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?
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- It also gets into the area of aboriginal use doesn't it, for instance, the concept of time immemorial?
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- So, basically this is an issue where the standard first in time, first in right really doesn't apply?
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- 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?
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- What is the state's position in this matter?
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- Why don't you believe that the Nez Perce have the right you just talked about?
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- 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?
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- 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?
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- 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?
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- Wouldn't that include the operation of the dams too?
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- Why negotiate now when you do have Judge Wood's opinion, an opinion that is adverse to the tribe?
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- How long has the adjudication and negotiations been going on?
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- Why has it gone on so long?
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- What has the experience been like for you to be involved with this case and these negotiations?
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- 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?
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- So you agree with the diminishment part of his argument, which of course the tribes are contesting . . .
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- Why do you feel that's important?
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- And you believe in fact that it has been diminished?
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- 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?
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- 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?
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- In plain language, that simply means at the time of the treaty they couldn't have imagined certain things, right?
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- 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.
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- How will that work? If they affirm it, will you continue with the negotiation?
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- Do you have any idea how much longer this could go on?
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- 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.
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- What are the reasons the negotiations are in executive session and are not public?
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- Nevertheless, it is public tax money that pays for such things, right?
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- Would that negotiated settlement include compensation i.e. monetary compensation for the loss of water rights?
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- Currently, do you have any sense of how much it has cost the state?
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- Will there ever be a breakdown of how much this has cost over time to do the negotiation?
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- Do you feel it has been worth it after all these years and what I can only assume is millions of dollars?
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- What is the difference between a federal reserve water right and a state beneficial use water right?
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- One of the seminal case would be Winters?
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- 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?
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