Transboundary Waters

CrossingCultural

Boundariesfor Sustainable Solutions

a multicultural approach

Conference Report & Synthesis

DedicationThis synthesis and proceedings is dedicated to thememory of former Zia Pueblo Governor WilliamToribio, who was appointed by GovernorRichardson to serve as the Native Americanliaison in the Office of the State Engineer.Governor Toribio was very active in the initialplanning for this conference. He died on NewYear’s Day 2004, before the conference was held.

Governor Richardson said, on that occasion: “He was a true leader with a strong commitmentto native people. … William’s wisdom andexperience, and his soft-spoken style of bringingpeople together left an indelible mark on NewMexico. He had a gift for patience andunderstanding when dealing with the tough,complex issues of water in New Mexico. His lossis felt amongst those of us who had the privilegeof serving with him this past year.”

The Utton Center appreciates having had theprivilege of working with this much-missedcolleague.

ThanksThanks to the Middle Rio Grande ConservancyDistrict for allowing the copying and use ofnewsclippings from its archival collection, and toProfessor José Rivera for permission to use theacequia documents, which were taken from hisAcequia Culture: Water Land and Community

in the Southwest (UNM Press, 1998).

i

Acknowledgements

This report is a synthesis of the presentations anddiscussions of the Utton Transboundary Resources

Center’s conference held September 2004 at the SantaAna Pueblo in New Mexico. Almost 80 water expertsfrom tribes, irrigators, communities, environmentalgroups and government entities met to talk, listen,gather information, and increase their understandingof one another’s approach to water issues.Participating in a candid dialogue across cultures andinterests, this diverse group explored how communityis built and the role of community in resolvingresource conflicts. This report is called a “synthesis”rather than a “proceedings” because it not onlysummarizes the ideas presented and discussed at theconference, but puts them together in a way that, justas at the conference itself, the result is greater thanthe sum of its parts. We are grateful to those whoworked on the program as well as the participants,presenters, and facilitators for their contributions tothe success of this conference.

We wish to thank the following sponsors of this conference:

General Service Foundation, Aspen, Colorado

Thaw Charitable Trust, Santa Fe, New Mexico

New Mexico Highlands University,Watershed Forest Institute,Albuquerque, New Mexico

Natural Resources Section, NM State Bar,Albuquerque, New Mexico

Sheehan, Sheehan & Stelzner, P.A., Albuquerque, New Mexico

Rocky Mountain Mineral Law Foundation, Westminster, Colorado

Public Service Company of New Mexico,Albuquerque, New Mexico

CONFERENCE REPORT & SYNTHESIS

Transboundary Waters

CrossingCultural

Boundariesfor Sustainable Solutions

a multicultural approach

© Copyright 2005Utton Transboundary Resources Center,University of New Mexico School of Law

Library of Congress Catalog Number Pending

Published by The Utton Transboundary Resources Center University of New Mexico School of LawMSC 11-60701 University of New MexicoAlbuquerque, NM 87131-0001(505) 277-7809 • (505) 277-3319 faxhttp://uttoncenter.unm.eduuttoncenter@law.unm.edu

Written by Marilyn C. O’Learyand Chris Garcia, Chris Garcia, Editor

Preventive diplomacy

for natural resources solutions.

The Utton Center wishes to thank theMcCune Charitable Foundation and theThaw Charitable Trust for their help inpreparing and publishing these proceedings.

ii

ContentsResponding to Our Community:

How This Conference Came to Be . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Community Building Across Cultural Boundaries:

A Conference Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3

Community Voices: A Panel of Perspectives on Water . . . . . . . . . . . . . . . . . . . .11

Blane Sanchez, ModeratorA tribal perspective on water, Albert Hale . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12An environmental perspective on water, Shirley Solomon . . . . . . . . . . . . . . . . . . . . . . . . . .14A state government perspective on water, Estevan López . . . . . . . . . . . . . . . . . . . . . . . . . .16An agricultural perspective on water, David Guy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17A business perspective on water, Maria O’Brien . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18A municipal perspective on water, George Britton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19An acequia perspective on water, Paula Garcia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20A federal perspective on water, Dale Pontius . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22

The Conference Community: Membership of the Breakout Groups . . . . . . . . .25

Highlanders . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26Valley Folk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28Gallegos . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30Marks . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32Love . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34Conference Staff and Volunteers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

A Community Agreement: Voices of the Jemez River . . . . . . . . . . . . . . . . . . . .39

Hilary Tompkins, Moderator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39John D’Antonio, New Mexico State Engineer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41Governor Peter Pino, Zia Pueblo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42Governor Paul Chinana, Jemez Pueblo . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43Gilbert Sandoval, Jemez Springs Acequias . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44Discussion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

Living in Community: Examples of Successful

Water Allocation Collaborations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47

Peter Sly, Moderator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .47Truckee River Water Quality Agreement,

John Jackson, Vice Chairman, Pyramid Lake Paiute Tribe . . . . . . . . . . . . . . . . . . . . . . .48Montana Reserved Water Rights Compact Commission, Susan Cottingham, Staff Director .49Fort Hall Water Rights Agreement, Jeanette Wolfley, Shoshone-Bannock

tribal member and legal counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50Penobscot Partners, Laura Rose Day, Director . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51

The Legal Community: Why Judges Decide the Way They Do . . . . . . . . . . . . . .53

Judge Jerald Valentine, Moderator . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53Professor Francis McGovern . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54Judge Daniel Hurlbutt . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .56Vickie Gabin, Special Master . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .58

Communities Create Success: Lessons Learned . . . . . . . . . . . . . . . . . . . . . . . .61

To the Larger Community: Next Steps for the Utton Center . . . . . . . . . . . . . .65

1

Responding to Our Community

How This ConferenceCame To BeMarilyn C. O’Leary, Director

UTTON TRANSBOUNDARY RESOURCES CENTER

This conference began with a suggestion from a participant during our previous conference,1

“Interstate Waters: Crossing Boundariesfor Sustainable Solutions,” to hold a similarworkshop but with an emphasis on Indianwater rights and inviting actual stakeholders to existing disputes to participate. We pursued that idea. As ourthinking developed, we broadened thetopic to include acequia issues, and thenfinally decided that our focus would be oncross-cultural water rights settlementswith an emphasis on Indian water rights.

As our planning evolved we focused onsuccessful water negotiations that included Indian and acequia water rights.Governor Peter M. Pino of Zia Pueblo hadthe idea of producing a video for the conference to show the success of waterusers on the Rio Jemez in negotiating anagreement regarding water deliveries during drought. The video illustrates thebeauty of the Jemez Valley and how agreement was reached to share thewaters of the Jemez. It also presents thedifficult and wide-reaching issue of how tomaintain traditional water uses whileaccommodating urban growth, and showsdifferent values related to water andapproaches to water use within the pueblocommunities and the basin as a whole.

We contacted people from around thecountry who had been involved in othersuccessful negotiations. People fromMaine and Washington, from Montana andNew Mexico, and from places in betweenagreed to bring their experiences andexpertise to discuss what they believe tobe the essential elements of success.

When I began talking with people inthe New Mexico water communityabout this conference, I was directedalmost immediately to William Toribio,a former governor of Zia Pueblo whohad been appointed by Governor BillRichardson to be the liaison betweenNative American pueblos and tribes inNew Mexico and the Office of the StateEngineer. William was working in theState Engineer’s office when we met andwas enthusiastic and supportive of thisproject. He attended several planningmeetings and introduced me to theGovernor of Santa Ana Pueblo, where the conference was held. I was impressedby William’s experience, insight, and good humor, and looked forward to ourmeetings. Then, on New Year’s Eve, 2004,William died suddenly at his home. Ourloss was only a shadow of the loss to thegreater community in which Williamworked. We dedicate these proceedings toWilliam’s memory.

The staff of the planning phase includedmyself and Susan Kelly, the Utton Center’sAssociate Director. Ruth Singer, theCenter’s Coordinator of Special Events,took on the formidable communicationsand logistics challenges of inviting, housing and feeding the conferees. TorildKristiansen began as the Utton Center’sAdministrative Assistant on the day beforethe conference itself, and somehow managed to register and direct traffic,troubleshoot and organize, just as if shehad been part of the planning team fromthe beginning.

1 For a copy of the conferenceproceedings “Interstate Waters: Crossing Boundariesfor Sustainable Solutions: A Multidisciplinary Approach,”contact the Utton Center at (505) 277-7809 or at uttoncenter@law.unm.edu.

Marilyn O’Leary is director of theUtton Transboundary ResourcesCenter at the University of NewMexico School of Law, where sheteaches International Water Lawand lectures on water law (includ-ing water markets and waterprivatization) to professional aswell as lay groups. She hasresearched and written on thecreation and implementation ofwater courts in the U.S. Prior toreturning to her law school almamater as director of the UttonCenter, O'Leary practiced waterand utility law in Albuquerque. Shealso served five years on the NewMexico Public Service Commission,as assistant counsel, executivedirector, commissioner and com-mission chair.

2

The planning group included a facilitationteam—Roberto Chené and Lucy Moore—that brought extraordinary depth in bothcross-cultural training and mediation andfacilitation of water issues. Blane Sanchez,New Mexico’s first Pueblo InterstateStream Commissioner, contributed aunique perspective on cross-cultural waterissues both as a professional water managerin several roles and as a tribal member ofIsleta Pueblo. His family includes membersof Acoma Pueblo who invited the confereesto celebrate the Feast of San Estevan atSky City. Chris Garcia, documentarian ofseveral water processes in New Mexico andco-founder of the New Mexico WaterDialogue, prepared the hypothetical casestudy and these proceedings.

During several months of regular, livelymeetings this group explored a wealth of ideas about culture, community, sustainability, and cross-cultural waterissues. We developed the hypotheticalcase study about Ourplace, a new nationdeveloping a new constitution. Weexchanged ideas with the panelists andtheir moderators. We previewed theJemez video with many of the “cast” of the documentary.

The conference itself was a sort of celebration of our engagement with culture and with water, an opportunity tobroaden the discussion to include the mostinteresting and exciting practitioners weknew. It exceeded our most optimisticexpectations.

I want to thank all of those who helped uswith our planning, including Peter M. Pino,Peter Sly, Derek Lente, Dale Pontius,Hilary Tompkins, John Thorson, SteveFarris, John Utton, Sam Deloria, MichaelCampana, Jose Rivera, Michele Minnis,Chris Garcia, Scott Hughes, SterlingGrogan, Tom Kinney, John Redlinger, Rhea Graham, Lynn Trujillo, BlaneSanchez, Lucy Moore, and Roberto Chené.My apologies to those importantcontributors I have neglected to mention.I also want to thank the funders andsponsors of the conference, the U.S.Department of Energy; the ThawCharitable Trust; McCune CharitableTrust; Highlands University Watershedand Forestry Institute; Sheehan, Sheehanand Stelzner, PA; Natural ResourcesSection, State Bar of New Mexico; andPublic Service Company of New Mexico.

Ruth SingerCoordinator of Special Events

Utton Center

Torild KristiansenAdministrative Assistant

Utton Center

Susan KellyAssociate Director

Utton Centerand John Kelly

3

In conference sessions, severalquestions came up again and again.The first: Is there a role for

community building in water

settlements?—was a central element in theconference design. The other questionswere raised by conferees, and included:

• How can we maintain the

support of our constituency?

• What are our values regarding

ownership of water?

• What is the federal role in

water settlements?

and the ever-popular,

• What should we do about those

darned lawyers?

Is there a Role for Community Building in Water Settlements?Conference planners began with a hunchthat sustainable water agreements are morelikely when the parties to a water conflictcan visualize themselves as a community.While communities can and do experiencebitter conflicts, their members havesomething in common; it is this mutualinterest that makes a collection of entities acommunity. This mutuality might, plannersfelt, help guide a group of adversariestowards terms that answer the basic needsof each party, including the absent partieswho are members of future generations.

Water issues are place-based, whichsupports a natural community amongparticipants. The collection of interestsengaged in a water conflict may, however,

have qualities which makecommunity building a challenge.River basin neighbors are oftenfrom different cultures withdifferent values, especiallythose values related towater. While theseneighboring cultures arelikely to have a longhistory, they are lesslikely to have had closecommunication and anopportunity to learn aboutone another. And litigation, the classic forum forwater conflicts, is not generallyseen as a community buildingenvironment.

The Utton Center hoped the conferenceitself could be a cross-cultural communitybuilding experience, providing confereeswith a shared experience they could use toidentify what is needed for communitybuilding to take place in the “real world”environments of their daily lives. Therewas no way, of course, that conferenceplanners could make a community happenat the conference. Those who cametogether had to do that themselves. Butthe planners thought they could providethe circumstances in which communitybuilding might occur. Planners urged thevery busy conferees to be present for thefull three days of the conference. Theyasked New Mexican invitees not tocommute to the conference but to stay atTamaya for the duration. Shared mealsand informal conversations were essentialto the planners’ vision.

While it is important not to mis-state whattook place—this was not a “therapeutic

Community Building Across Cultural Boundaries

A ConferenceOverview

Planning the Conference:Stephen Snyder,

Chris Garcia, SharonHausam, Marilyn O’Leary, in

Roberto Chené’s backyard

Chris Garcia

4

Until we’ve talked and inter-

acted as neighbors, we really don’t

know each other. We assume

things about one another, and

those assumptions are often

mistaken. The intention of

this opening panel is to bring

us together the way neighbors

are brought together.”

Blane Sanchez,

New Mexico Interstate Stream Commissioner

…in the world we all try to hide the ball. In this

group it was clear early on that we were going to

open everything up.”

Jesse Boyd,

commenting on the breakout groups

Each of us could talk for an hour about failed

promises. It is essential to understand that failed

promises don’t get us anywhere. The best

[negotiation] artists understand failed promises

and can move them into an effective way to

secure the lost objective.”

David Guy, Northern California Water Association

the conference itself. They talked andargued in the breakout groups whichworked out principles and strategies for ahypothetical cross-cultural water allocationsituation. They ate meals and walkedtogether.

The group’s sense of itself as a communitywas strengthened by spending one day withan ancient and intensely traditionalcommunity. At Acoma Pueblo’s SanEstevan Feast Day, Acoma families openedtheir homes to conferees, and fed all withgrace and abundance. Holding freshevergreen boughs and wearing traditionaldress, hundreds of Acomas from childrento the very old danced throughout the longday in honor of the pueblo canes, thepueblo land, and the need for moisture andsustenance. The conferees returned toTamaya that evening feeling sated and tiredand blessed. The next day, as GovernorPino of Zia Pueblo gave the closing, itrained, and the conference thanked theAcoma dancers for this additional blessing.

Pros and Cons of Openness: Conferees worked in breakout groups on a hypothetical problem involving watersharing among distinct cultural groups. Inunfacilitated, intense, contentious and yetfriendly discussions they tried to identifythe necessary elements of a successfulagreement. The talk was open and candid.

Eileen Gauna, professor of law atSouthwestern University School of Law anda prominent member of the environmentaljustice community, observed that “Theprocess of building trust and being candidin negotiations runs up against threeimportant considerations:

• The first is historical betrayal. Howdo you get over how non-dominantgroups, when they are in a processwith dominant groups, have alwaysbeen screwed?

• The second is that in litigation andnegotiation, the process is always tohide, to process internally. How doyou get beyond this conventionalwisdom to enter negotiation withcandor and honesty?

• The third barrier is the difference in

resource capacity. There is a lack oftechnical capacity for some groups toparticipate fully.”

experience”—it is also important toacknowledge that something did takeplace. Individuals shared their experiencesin a respectful environment and many ofthe 80 very different people who attendedcame to know one another as neighbors andcolleagues and to feel a sense of themselvesas a community.

Neighbors: Again and again confereesreturned to the themes of neighbors andcommunity. Blane Sanchez introduced the“Perspectives on Water” panel as being likeneighbors getting to know one another.Blane’s vision was realized when panelistsshared how their lives related to water at alevel that opened windows on their personalvalues and experience of the world.Conferees continued to build on thisknowledge, and on the shared experience of

5

Acknowledging historical betrayal:In addressing the first of these considera-tions—historical betrayal—two seeminglyopposite observations were made. On theone hand, as a panelist observed, “failedpromises don’t get us anywhere.” Othersagreed that today’s water agreement cannever right past wrongs.

On the other hand, refusing toacknowledge the history of betrayal erodesany basis for trust. Lucy Moore,conference planner and facilitator, sharedher feeling that “There almost needs to bea chair at the negotiating table for historyand betrayal.” She told of a recentmediation on regulations for Indianschools, where 19 tribal members and asimilar number of federal agency staff,many of whom were tribal, tried to reachconsensus. While they did reachconsensus, the process never felt resolved.“Tribal members spoke again and again ofterrible historical traumas in the schoolsystem. This really turned off themembers of the federal team, who becamevery uncomfortable. ‘How many times do Ihave to hear this?’ ‘It wasn’t me! Mypeople came from Ireland in the thirties.’”Moore said “It’s up to those of us who can

hear these stories to show others that theycan be heard, that they must be heardbefore they can be set aside so we canmove on.”

Empathy: Most conferees felt that layingthe groundwork for empathy is anessential, and difficult, first step inexploring the possibilities for a creativeagreement. One conferee urged “If youtake time to listen to one another’s stories,one result is empathy. Going too quicklyto problem-solving skips that trust-buildingstep.” On the other hand, the topic ofhistorical betrayal often feels like anattack. As a participant observed, valuescan be used as a sword as well as a shield.Another replied “It’s hard to acknowledgewhen you’ve wronged someone. If you cancultivate the habit of empathy, you can feelthe wrong, and it’s easier to acknowledgethe historical burden you carry.” Stillanother urged, “All people are notempathetic. We can perhaps bring thisout, but it’s not there. As individuals wecan speak as advocates for empathy.”

Dealing with inequity: The crucialissue here is inequity in power among the

parties to a potential agreement. To many,this topic feels like a Pandora’s Box. Oncewe admit that there are grave disparities inpower, what will be done about it? Oneconferee observed “I have been interestedin how people respond to the threatinherent in talking about values. … Wemight want to be a little introspectivewhen we feel threatened by talking about avalue. Are we threatened because thevalue would unseat our privilege?”

Value of a devil’s advocate: JohnRedlinger, Special Projects Officer ofReclamation’s regional office, said, “I oftenplay the devil’s advocate in conflictnegotiations. In a discussion amongparties to a conflict who are all on thesame side, advocacy for the other side isnot empathy, it’s common sense. Someoneneeds to say ‘These people (those on theother side) know what they’re doing.

We’ve been trying to talk about

values in a positive context.

But values can be used as

both a shield and a sword.

Here we have tried to use

recognition of values to

solve problems, but

there is a way of

beginning with values

that is an obstacle to

solving problems.”

Maria O’Brien, of Modrall, Sperling, Roehl,

Harris and Sisk, with Stanley Pollack

As an advocate for acequias, I’ve always

felt it’s a mistake to demonize municipalities.

But I find it hard to see how a municipal

interest is threatened by articulation of

traditional values.

Do traditional values threaten privilege?

Communities with less power often fare less

well in the political process, where value

conflicts tend to be resolved. Our mechanisms

for conflict resolution don’t level the playing

field for weak players.”

Paula Garcia, New Mexico Acequia Association

They’ve got an interest here. You need tounderstand it.’ There’s a role for a devil’sadvocate whenever you’re discussingforces bearing on a negotiation.”

Commitment to the process: A watersettlement doesn’t end when the papersare signed—that’s when it begins. A highturnover in agency staff may be a seriousimpediment to reaching and implementingsustainable settlements.

One aspect of a land-based community isthat people are members of it whether it isconvenient or not. This may be a centraldifficulty in building community amonggroups that include land-based people andmore mobile, transient mainstream-societyparties. Governor Pino of Zia Pueblo said“Pueblo people are going to be here. If wemess up our own environment we have noone to blame but ourselves. … Please staywhere you are if you’re going to work on this.”

Jim Davenport, of the Colorado RiverCommission of Nevada, responded thatwhile continuity is a value of land-basedcultures, mobility is a value in modernurban culture. The principle of respect forcultural values needs to be appliedreciprocally. Water settlements will haveto find a way to face this important valueconflict head on.

How Can We Maintain the Support of OurConstituents?Many conferees were interested in hownegotiators can maintain their constituentsupport as an agreement is approached.As one conferee put it: “In my experience,at some point the stakeholders say ‘Hey!You’re giving our water away!’ For us, it’sbeen all over after that.” An attorney

6

If you’re going to make an agreement you have to

be stationary, you have to be here

when we’re trying to work it

out. … On the rollercoaster

ride there’s downs as well

as ups.”

Peter Pino,Governor, Pueblo of Zia

with Marilyn O’Leary

When the parciantes come to say they are getting

the short end, I have to explain. I say ‘Give me

your opinion. Give me your solution. Tell me

what to do.’ Then I have to listen to them. And

tell them the hard truth about why that

can’t be done. We are the junior

water-users on the river.”

Gilbert Sandoval, Rio Jemez acequias

with Vincent Toya

Jim Davenport,Colorado RiverCommission ofNevada, with N.M.Senator CarlosCisneros

7

asked “How do you deal with your‘backside,’ the client-control problems ofimplementing the agreements?” All theresponses involved committing significantresources to communication.

Participants in the Rio Jemez Agreementhad a wealth of experience in this arena.They said they had to ask dissatisfiedconstituents for alternatives and then theyhad to listen to their complaints. GovernorPino of Zia Pueblo said “We ask our tribalmembers ‘Do you want to be part of thisdecision or do you want the decision to besomething that happens to you?’ Peopleusually want to be part of the decision.”

Many negotiators saw constituenteducation as a central role. “Education ofthe tribal community can’t be emphasizedenough,” said Jeanette Wolfley of theShoshone-Bannock Tribes. “I went out tothe district meetings to present theproposed water agreement. I became theeducator for the negotiated settlement.”

Even for the Montana CompactCommission, whose negotiations are alwayswith the sovereigns—the State, the U.S.,the Tribes—it is essential that eachsovereign assume the responsiblility to seethat their constituents are on board. SusanCottingham, the Commission Director, said“We were always going to people on theMilk River to ask, ‘Is this going to work for you?’”

Penobscot Partners, a diverse alliancewhich includes the Penobscot IndianNation, Atlantic Salmon Federation,American Rivers, the Natural ResourcesCouncil of Maine, Maine Audubon, andTrout Unlimited, had a particularlycomplex relationship with its constituents.There were sovereigns and nonsovereignsin the alliance, as well as among the partieson the other side of the table. The State ofMaine had issues with recognition of thesovereign nature of the Penobscot Tribe.The Penobscot Nation retainedindependence at the table even from theircoalition co-members. Laura Rose Day,Director of Penobscot Partners, observed“Part of success in the negotiation isunderstanding that each of the otherplayers has backside issues of their own.”

Community is the payoff: Whilemaintaining constituent buy-in is costly intime and resources, the payoff is realizedin an unexpected benefit—a real basis forcommunity. John Jackson of the PyramidLake Paiute Tribe said “The tribe hasmoved from seeing Truckee irrigators asopponents to seeing them as partners inprotecting the Truckee River.” This strongstatement was echoed by others. MontanaCompact Commission Director Cottinghamsaid: “The negotiation is really a means toan end; the end is better dialogue betweenthe Indian nations and white neighbors,going into a hostile situation and comingout where people are working together.The work of cultural understanding andeducation is the most demanding and themost rewarding.”

There have been relationship issues, both

human and ecological. We’ve gone out of our

way to eat together, to get to know one another

as human beings, to pick up the phone, to

understand where individuals can go out on a

limb and where they can’t.”

Laura Rose Day, Director, Penobscot Partners

Now my children and grandchildren

can see that we can work with

our neighbors. If we had

had to litigate, that’s what

they would know—that

we have to fight with

our neighbors. That’s

not what I want my

children to learn about

their place and their

neighbors.”

Juanita Revak,

daughter of Gilbert Sandoval

with her mother, Mrs. Sandoval

commodity. I was disappointed this wasnot pursued.” Against the legal backdropof water ownership concepts, many cross-cultural water settlements include bothcommunities where water uses areinternally governed on common propertyprinciples of sharing, and neighboringcommunities in which water is ownedindividually or corporately and traded as acommodity. These agreements confrontthe problem of reconciling the differentperspectives on ownership among theirconstituents.

What is the Federal Role?Many conferees were interested in the roleof the federal government in watersettlements. National, state, and tribalinterests, coupled with the federal trustresponsibility with respect to tribal assets,make federal responsibilities exceedinglycomplex.

Interstate and state-tribal wateragreements must be approved byCongress; The Endangered Species andClean Water Acts create federal regulatoryresponsibilities that are extremely

important in water settlements. Thetrust responsibility requires federalinvolvement. And the federalgovernment is often asked to fund keycomponents of agreements. Federaldecision-makers cannot delegatedecision-making authority to fieldstaff. This problem is furthercomplicated by the political nature ofupper-level federal appointments,introducing a new set of decision-makers whenever the administrationchanges.

What About WaterOwnership?Perhaps the central difference

between the values of land-basedcultures, such as the tribes and the

acequias, and market-based cultures,like that of the mainstream U.S., is rootedin the question of ownership. ArizonaSenator Albert Hale, speaking as a Navajo,said “In [mainstream] society we try to …take ownership of those things that sustainlife. … The elders are saying that we’reworking against the law of nature, the lawof life. You can’t own these things.” PaulaGarcia, recalling the proposed sale of awater right in an acequia community, said“Word spread that someone had sold awater right. People protested, saying ‘thatwater wasn’t theirs to sell.’” Many of thebreakout groups pondered whether thehypothetical’s new cross-cultural nationshould institute water “rights” or water“privileges.” Lisa Gover of the NationalTribal Environmental Council said in onebreakout discussion, “The idea ofownership is a problem for me. You wantto start there—but I can’t even get there.”

Value differences are seen in broad reliefon the topic of ownership. Brian Shields,Director of Amigos Bravos, said “I hopedwe would look at the concept of governingwater as a commons rather than as a

Water is nobody’s property. You as an individual

are used merely as a container. You sing it

through your mouth, but it is not yours;

you do not own it.

Antonio Trujillo, President,

San Jose de la Cienega Acequia

An important federal role

is to recognize the federal

trust responsibility to

protect the natural

resources of the tribe.

Some agencies don’t even

know they have a trust

responsibility, so we need

to do re-education.”

John Jackson,

Pyramid Lake Paiute Tribe

Brian Shields, director of AmigosBravos

8

Federal relationships often make decision-making convoluted. High-level involvementin the negotiations could answer theproblem, but little attention is paid to thesesettlements at the high federal levels. Thisleaves local interests and lower-echelonfederal staff to anticipate what issues willconcern federal decision-makers, and to tryto work these through in advance. Federalinteragency teams may introduce glitchesin the dynamic between the agencies aswell as that between the team membersand upper-level federal decision makers.2

Finally, the federal timeline createsconfusion. The federal approval processfor a water settlement doesn’t begin untilthe final settlement framework is laid out.By the time the negotiators see the federalresponse to that final framework, thenonfederals may no longer be willing toreconsider settlement terms. The federalcomments are not made in an atmosphereof give and take, as the terms of thenegotiation were, and are often made in acontext that is foreign to the settlementterms.

Several conferees told about doing an ‘endrun’ around the Department of Interior—taking a settlement proposal straight toCongress. This was not, conferees said,due to any deficiencies in the federal staff.The decisions were so complex—ofteninvolving international, interstate andintertribal interests—that they simplycouldn’t get through the agency reviewprocess. Others found that when federalstaff buy into the process—understand theimportance and the terms of thesettlement—they can be valuable allies,going to bat for the settlement withinInterior and with Congress. Still others,unable to involve the federal agencies inthe negotiations, sought extensive positivepress coverage of the settlement and itsbenefits before federal approval, which “ata minimum put pressure on the federalagencies to resolve any problems they havewith the agreement in a productive way.”

How About those !#$%* Lawyers?The role of attorneys in water negotiationsdrew a lot of attention, with the usualquota of attorney abuse. The Rio Jemezpanelists were clearly delighted to havecrafted their basic agreement on their own,calling on attorneys after the fact for

9

You can’t leave it up to

the attorneys to make the

decision.… The attorney

may not be around

when you get to

implementation. Your

constituents will want

to know ‘What does this

phrase mean? Why did

you negotiate this

provision?’ Negotiators

have to really understand

what the agreement means.”

Jeanette Wolfley, Shoshone-Bannock negotiating team

with Lisa Gover

There were lots of times when we just had to

say ‘We need to talk. Let’s find a way through

this.’ At these times movement was based on

personal relationships. We had complete

disagreement on the issues, but we kept the

ability to talk.”

Laura Rose Day, Penobscot Partners

2 See Barbara Cosens,“Water Dispute Resolutionin the West: ProcessElements for the ModernEra in Basin-Wide ProblemSolving.” Environmental

Law, Lewis & Clark LawSchool, Vol. 33, number 4.2003.

validation and technical assurance. Eventhe attorneys among the conferees couldshare their obvious satisfaction.

Too often, one conferee said, we think ofthe attorney as advocate, when it is moreappropriate to regard the attorney ascounsel. A counsel goes with the client tomeetings, listens to the client and toothers, and then reflects back to the clientwhat is going on in the legal environment.Some attorneys, another confereeobserved, are problem solvers, whileothers are litigators. It requires aproblem-solving attorney to craft anagreement that will stand the test of time.

Most agreed that one should be wary of anapproach based on “Let me talk to youwithout your attorney.” At the same time,many felt that litigants need to be able tosay to their attorney, “Now we have ananswer.” Some parties to successfulsettlements reported that the parties firstagreed on the concept for settlement andthen went to their attorneys to write upthe concept.

10

Voices were raised in defense of litigation,which can sometimes move an issuequickly and forcefully through an impassein discussion. But litigation, they said, isnot the only answer to such an impasse.

Assembling a strong negotiating team thatcan be candid with its attorneys isimportant. The negotiating team’sresponsibility is to identify when theattorney is going too far, or not farenough. The attorney’s responsibility is toinsure that the client has a valid claim andto explain the boundaries of that claim, sothe client’s expectations are in line withthe negotiation. The attorney must alsolisten to the client’s wishes regardingsettlement and represent those. And inthe end, “These are very complex anddynamic negotiations. Attorneys,technical staff, government folks,community, each have an essential role.”

Summing UpThe conference supported the planners’hunch that the ability of the parties to awater conflict to see themselves as acommunity is important to achieving asustainable settlement. Estevan López ofthe New Mexico Interstate StreamCommission told us that sustainabilityrequires that we develop trust with oneanother, and recognize that all ourperspectives on water’s value are valid.

All the stories of successful settlementscontained some aspect of communitybuilding.

• The Rio Jemez agreement wasreached among irrigators who were

Four of us are in various stages of 12-step

recovery from being lawyers. Being a lawyer

creates a disadvantage in the realm of personal

relationship.”

Peter Sly, Moderator of “Successes” panel

It is not disturbance that destroys a watershed.

Destruction comes when connections are broken.

Every time a connection is broken the river system

is weakened a little more and its overall health

declines.

Shirley Solomon, Skagit Watershed Council

genuinely of the same community—they had gone to high schooltogether. Their sense of communitywas temporarily set aside in thealienation of the adjudication lawsuit.When irrigators from the pueblos andthe acequias looked together at thedry pueblo ditches, their sense ofcommunity, and their willingness tocome to a workable agreement, wasrestored.

• In the process of settlement, PyramidLake Paiutes came to see their non-Indian neighbors as partners inprotecting the Truckee River.

• The formal, court-ordered alternativedispute resolution process in thehuge Snake River adjudication reliedon the parties coming to know eachother, eating together, becomingaware that they are neighbors.

• Laura Rose Day, coming from Maine’sriparian-doctrine water environment,noted “though the eastern andwestern United States have verydifferent systems, we look at verysimilar issues; issues which havemuch more to do with communitiesand relationships than with water lawand statutes.”

• At Fort Hall, Jeanette Wolfleyidentified the most important part ofher role as tribal attorney aseducating the tribal community tocreate support for a successfulsettlement, and assisting in theimplementation of the agreement.

Establishing a healthy, sustainable watersettlement may require a healthywatershed community just as establishinga sustainable water supply requires ahealthy watershed.

The important lesson of these discussionsis that they took place. Conferees did notcreate a “solution” to the challenge offinding common ground among unequalparties whose history includes distrustand betrayal. They did, however, openlyshare their concerns, fears, and insightsinto this type of situation. Perhapsdiscussions like these need to happenamong the parties to water conflictsbefore addressing the actual issues in theconflict. Certainly many conferees feltthey had learned about one another inways that had not been possible before.

11

Community Voices

A Panel ofPerspectives on Water

Most of us here don’t know one anotheras individuals, much less as neighbors.Before we’ve talked and interacted, wereally don’t know each other—we assumethings about one another, often mistakenthings. The intention of this openingpanel is to bring us together, as neighborsare brought together.

Blane Sanchez • Moderator

The water use agreement on the RioJemez centered on the sharing ofinformation as neighbors.

Neighbors come to know one another bysitting down, sharing coffee, sharing food,talking. Our children interact, wecompare our gardens. We bringknowledge and ideas and positive as wellas negative connections as we move intothe neighborhood. We know that we willneed to resolve whatever conflicts maycome up. Because, after all, we’reneighbors.

Blane Sanchez is the first pueblo/tribal N.M. Interstate Stream Com-missioner. He was appointed byGovernor Richardson in 2003. Hisinterest in Indian water resourcesstems from working for bothSandia and Isleta Pueblo’s WaterQuality Programs. He has familyties to both Acoma and IsletaPueblos, and lives on the IsletaReservation as a tribal memberthere.

12

Albert Hale served the NavajoNation as President from 1995-1998, and has also served asAssistant Attorney General and asspecial counsel to the NavajoNation Council. He is the formerchair of the Navajo Nation WaterRights Commission. He was bornand raised in Klagetoh, Arizona andhas practiced law for 23 years.Hale is an Arizona State Senator.

Iwas born to the Salt clan, born forBitter Water. My paternal grand-parents were of the Tall House

people; my maternal grandparents were of the Walkabout clan. This ishow I introduce myself as a Navajo.But I am trained to be a white man.Now you’ll find out if I’ve beentrained well.

I’ll try to speak to you in this foreign language I’ve been trained in, from my

perspective as a former leader of theNavajo Nation and the chair of the NavajoWater Rights Commission.

When we get into disputes in Navajocountry over land, you would hear fromelderly folks about the issue of naturalresources, about trying to control, divide,and make owners. They would say “Whyare you fighting about land? You’re onlygiven a few moments to live here. Whenyou die you won’t take that land with you.It’s staying here.”

In Navajo, the teaching is that fourelements make up life: water, fire, solid,and air. In this society we try to dividethem up, to take ownership of those thingsthat sustain life: “this part is yours, thatpart is mine.” The elders are saying thatthis is working against the law of nature,the law of life. You can’t own these things.

In learning to be a white man that’s whatI’ve learned. White people want to dividethings, to own things. That’s how your lifeis measured, as I understand it. That’s adilemma—a problem we’re faced with thatgets into this area of water rights.

The present drought really focuses us onthe different perspectives, Indian and non-Indian. This brings to the forefront thatwater is necessary for life. In Navajo wesay “To’ bee iina” water is life.

We need to work together to arrive at asolution coming from differentperspectives.

You cannot take water. You cannot own it.It is common ownership, and commonownership doesn’t have a place in Anglo-American jurisprudence, because thatsystem is all about separation.

In the present arena in which we’re tryingto resolve water rights issues, NativeAmerican water rights become a criticalpart of settlement. From our perspectivethe history of broken promises is beingcarried into the water rights arena. Manythings result from that. This is a constantfear among Indian nations and Indianleaders. Whatever the settlement lookslike, there is little trust that the settlementwill be honored.

We have seen that litigation of Indianwater rights is not pursued with muchvigor. These cases languish for years, fordecades, because the federal governmentfails to provide adequate funding to reacha timely resolution. This might also resultfrom the U.S. government’s conflict ofinterest in resolving these rights. Thereare many Indian nations, and many ofthose have unquantified water rights.Indian nations who are neighbors have different interests. When the U.S. stepsforward as the trustee for each of theneighboring nations, it steps into a conflictof interest. How can the federalgovernment represent the differentinterest of its trustees? How can theyrepresent the Navajos and the Hopi?

That conflict of interest also carries on toefforts to promote settlement, andimplementation is impacted as well. Weneed money to implement the negotiatedterms. We all know money is scarce,especially now when we’re at war. A lot ofthe money that settles Indian water rights

Albert Hale

A tribal perspective on water

13

is being taken from the Bureau of IndianAffairs. The feds end up robbing Peter topay Paul; they take money out of Indianprograms to settle Indian water rights.The BIA has its own conflict of interest.When it takes money to settle Indianwater rights it has to come out of otherprograms that are meeting other trustobligations. In my experience, thosesettlements, once reached, are put on theback burner, forgotten. Every year there’sa fight for funding. There’s a lot ofdistrust among the tribes as to whetherthere will be money to implementsettlements.

In the early 1960’s an agreement wasmade and legislation was adopted thatresulted in the Navajo Indian IrrigationProject (1962). The San Juan-Chamawater diversion was part of thisagreement, bringing Colorado River waterto New Mexico cities on the Rio Grande.That part was completed in 10 years; thefunding was made available. But theNavajo Nation part of the agreement is stillnot completed. Every year the NavajoNation goes to Congress to fight forfunding, and 42 years later the project isnot complete. This leads to distrust fromthe Indian standpoint.

In this conference we are looking atsolutions. Federal attention and sustainedeffort to settle Indian water rights isneeded. High-up administrators need tofocus more attention on this issue.Interior’s water rights division needs morefunding to bring the needed expertise tobear on these problems. Interior has alarge staff turnover; the learning curve as

to Indian water rights is long. By the timeInterior staff learn enough to be effective,they are gone.

I suggest that a separate fund be createdto finance settlements and litigation. Thatmoney shouldn’t be taken from othertrust-responsibility programs. SenatorDomenici proposed this solution severalyears ago, and his proposal needs to berevisited. Implementation needs the sameattention, resources, and focus as thesettlement itself. Settlements aren’tcomplete when the papers are signed;they’re settled when the goods aredelivered. This is the time and place totalk about these issues. The key wordhere is TRUST.

14

Shirley Solomon is co-founder ofthe Skagit Watershed Council, anot-for-profit organization with 41members ranging from federalagencies to local farming andfishing groups. Its mission is torestore functioning natural eco-systems through voluntary partici-pation.

My responsibilities are not to waterper se, but rather to a river andthe watershed of that river. I

work on the Skagit in northwestWashington, a land of green, of grayskies and seemingly abundant water.I run a seven-year old WatershedCouncil with a membership of fortyorganizations ranging from the

National Park Service to the FarmBureau, from four tribes to seven

non-governmental organizations. Weconsider ourselves to be a cross-cultural,multi-disciplinary entity, representing bothcommunities of interest and of place.

The Skagit is the third largest of our westcoast rivers. It rises in British Columbia andflows some 160 miles into the marine watersof Puget Sound. Like all the rivers of thiscountry, the Skagit has been harnessed,tamed, and replumbed from top to bottom –and no longer functions naturally. Thereare five dams on her upper reaches, fittedwith hydroelectric power plants; a vastnetwork of dikes, levees and drainageditches makes possible settled life and theagricultural pursuits for which the SkagitValley is famous.

Famous, too, are Skagit salmon, both invariety and, until recently, abundance. Thewatershed is home to all six Pacific salmonspecies and to core populations of PugetSound Chinook, listed as threatened underthe Endangered Species Act in 1999.Salmon need natural, meandering streambeds with deep pools and eddies; cool, cleanwater; sediment-free gravel beds and quietside-channels—all difficult for the river oftoday to provide because its hydrologicregime has been so thoroughly changed.We are just beginning to understand andquantify the effects of all the changes madeto the river in the century and a half ofwhite settlement, and to gauge themagnitude and persistence of thesechanges.

I am an advocate for restoring riverfunction and for doing what we can torehabilitate the landscape processes thatonce operated naturally in the watershed.

A healthy river is connected in a multitudeof intricate ways with the surroundinglandscape and with the water that movesthrough that landscape. These watersperiodically surge across floodplains, carvenew channels, abandon old ones and carryaway fallen trees. They tear away terracesand pile up materials to build new ones.Groundwater from the surroundinguplands flows into the river and river watersoaks into underground aquifers. All theparts are tightly connected, but nothingremains in a steady state. Disturbance isnatural and frequent. It is not disturbancethat destroys a watershed. Destructioncomes when connections are broken.Every time a connection is broken theriver system is weakened a little more andits overall health declines. The largerecological processes are interrupted orsimplified. If enough connections arebroken, the river dies. It may still lookbeautiful but ecologically it functions like aculvert. It is simply a conduit for waterpassing through.

My personal relationship to water wasformed at an early age, on an Indian Oceanbeach. I hold intense memories of sandbetween my toes, the thunder of the surf,the sense of buoyancy as I jumped thewaves, the sting of salt in my eyes. I’vehad more to do with fresh waterbodiessince those childhood experiences butthose first connections remain the definingones. I’ve lived in places where freshwater was scarce and used guardedly. Andin my travels I’ve seen how difficult it is formany to secure what most of us in thiscountry accept as a right: unlimited,potable-quality running water.

Shirley Solomon

An environmental perspective on water

15

My highest hope is that, as a society, webegin to talk about a more equitablebalance between the rights of humans andthe rights of the rest of the natural world.Human rights are not ultimate. Withoutenvironmental rights, human rights cannotexist. Few of us realize that humansystems are much more at risk than arenatural systems. We rarely consider thehuman health consequences of our actions.We still have the mindset of limitlessnessand abundance and believe, against theevidence, that there is a technological fixfor every problem. I would hope that wecommit ourselves to our place, ourwatershed, and act as its defenders. Iwould like us to seek, not quick fixes, butdeeper understanding and newalternatives. I would like to see us betteraddress the underlying spiritual and ethicalissues that surround natural resource use,particularly water.

My greatest fear is that we, as a society,will be willing to accept a degradednatural world as the price of what we callprogress and as the price of maintainingour lifestyle. All of us who seek to reachagreement on contentious issues knowthat to reach those agreements wesometimes have to swallow bitter pills. Ifear that we will too quickly abandon ourhighest hopes – or relegate them to thesidelines – and become pragmatic in waysthat perpetuate the very world we aretrying to change.

Along with everyone else, I see the futurebringing escalating competition for waterand land, demand far greater than theresources can deliver. And furtherdegradation of already fragile systems.

So what of potential solutions?

I feel that we are at a point where reinvention of our concepts of naturalresource management is possible. I haveseen success in working locally through a watershed council structure. The following are, in my opinion, the factorsthat are requisite for success:

• Engaging all the right players.

• The right mix of top down/bottom up.

• Clear focus and an agreed-to strategyof what to do and how to do it.

• Committed participants and leadership capacity.

• Sound structure and process.

• Comprehensive and currentinformation.

• Fully functioning organizationalinfrastructure, includingcommunication strategy, datamanagement system, monitoringprogram and reporting methods.

• Knowledgeable and supportive community.

Over the next two days we will have theopportunity to move the discussion, andour thinking, beyond the usual recipe ofcooperation and compromise. So often weconfine ourselves to dealing with theblacks, the whites and the shades of grey,ignoring the purples and crimsons and allthe other glorious colors of the spectrum.

I would offer to all of us who labor on thislarge and worthy task the words of thegreat spiritual leader, Rabbi Tarfon: “It isnot required that you complete the task,but neither are you free to desist from it.”

16

Estevan López is a native ofPeñasco, N.M. where he serves onfour acequia committees and isPresident of the Peñasco MutualDomestic Water Consumers’ Associ-ation. Governor Bill Richardsonappointed him Director of theInterstate Stream Commission in2003. He is a registered profes-sional engineer and serves asDeputy State Engineer.

Iam not a trained water resourcemanager. I am a petroleum engineer. Iknow about exploiting a natural

resource and about flows throughporous media. I am also a chemist.The remarkable chemical propertiesof water—the ultimate solvent—havealways impressed me. Today I chooseto speak about water from my

personal perspective and notnecessarily in my role as director of the

Interstate Stream Commission.

My life, not my education, trained me inwater management. On the PublicUtilities Commission I looked at adequacyof public water supply; as county managerof the rural/urban Santa Fe County waterwas a central issue in my work, as it alsowas when I served as utility director forSanta Fe County and later as land usemanager for the County. Clearly, land usehinges on water and its availability.

I grew up in Peñasco, the center of theuniverse. I am a parciante, an acequia

irrigator, and I serve on several acequias.Every spring the parciantes get togetherand clean the acequias. This labor pool iswhat keeps the acequias functional.They’ve been around for hundreds ofyears and are a focal point of New Mexicocommunity. I am also the president of thePeñasco Domestic Water UsersAssociation, which is entirely within theexternal boundaries of Picuris Pueblo, so I deal with transboundary issues on the very local level as well.

With my father I am a small-time rancher.I have been a fisherman and I have pulleda salmon out of the river and eaten it onthe bank. I grew up on the Santa Barbara

River, which is not more than 20 feetacross, and I spent all summer fishing,swimming, and hiking around the PecosWilderness. I floated down a mile-wideriver in the Yukon, and lived to tell about it.

Water plays a central liturgical role in myreligious tradition, as in all others. In mydaily life I drink water; I bathe; I wash myclothes. My relationships with water arenot homogenized. The acequia parciante

may be in conflict with the Santa Fe landand water manager. The professional whois committed to efficient and equitable useof New Mexico’s water may be in conflictwith the fisherman who hopes to catch aRio Grande cutthroat trout, soon to be listed as endangered.

Making sure we preserve environmentalqualities depends on our developing trustwith one another. The only way to do thatis to recognize that the variousperspectives we bring are valid: Water islife, water is community, water is sacred,water is fun, water is money, water isproperty. It’s incumbent on us torecognize there is no one view about this,and the perspectives others value highlyshouldn’t be set aside with “My view is theright view.” Too often we don’t allowourselves to develop the trust necessary towork on resolution of issues.

That’s our challenge, and I hope we’re upto it—Though there are conflicts betweenwater values and uses, they’re all valued.How can we put them in order, or on thesame level, in sharing our water?

Estevan López

A state government perspective on water

17

Since January 1999, David Guyhas been executive director of theNorthern California Water Associa-tion, whose mission is to promoteeconomic, social, and environ-mental viability of northernCalifornia by enhancing andpreserving the water rights andsupplies of its members. He alsoserves on the California Bay-DeltaPublic Advisory Committee.

Igrew up in Caspar, Wyoming and I’mhere to talk about water from theperspective of agriculture, and from my

own perspective, which is necessarilybroader. I am executive director of theNorthern California Water Association.Northern California is the area of origin forCalifornia water supplies, with 2.5 millionirrigated acres, six national wildlife areas,cities and universities. Water is life’s bloodin northern California just like New Mexico.

In the early 1990’s California was indrought—it seemed choices would have tobe made between farms, refuges, cities, andfish. Agriculture faced the possibility ofdeep losses. The Glenn-Colusa IrrigationDistrict, the largest irrigation district innorthern California, recognized that the oldway of doing business in the SacramentoValley wasn’t good enough. They cleanedhouse, found new directors and a newattitude. It was a major cultural change, arecognition that “mine vs. theirs” was nolonger viable.

At this time state and federal agenciesclaimed that certain Sacramento Valleywater rights holders must either stopdiverting or release water from storage tohelp meet water quality standards in theDelta. These senior water rights holdersdid not believe their uses contributed tothe water quality problems. This seemedlikely to become the biggest water rightsdispute in the country, involving aminimum of ten years of litigation andjudicial review.

But the Glenn-Colusa Irrigation District’snew leadership initiated meetings betweenthe mutually embittered northern andsouthern water users to look for asettlement, and together they hammeredone out. One hundred entities fromnorthern and southern California wenttogether to the Water Resources Control

Board (WRCB) with the Sacramento ValleyWater Management Agreement. No onehad dreamed the day would come whennorthern and southern California wouldcome before the WRCB asking for thesame thing! The Agreement manifesteda culture of success. No one wasthinking failure. No one wants to goback to the same way of doing things.

I offer six themes we might think aboutduring the next days:

Fighting: Litigation can be valuable; looking foralternatives to litigation shouldn’t itself be agoal. The objective is to spend less time incourt and to go there to achieve a specificoutcome, which is developed outside the courtand validated by the court.

Values: All values are important and all requirerespect. When we understand the values ofthose across the table we can see our waythrough. We get this understanding sitting incoffee shops, and in meetings like this.

Art: Good water rights settlements are art. I’m ageologist, but I have not found science to bevery helpful in these disputes. I admire artists,who know the rules and how to break them andhow to work within them.

Failed promises: It is essential to understandthat failed promises don’t get us anywhere. Weneed art to find an effective way to secure thelost objective.

Growth: There are 35 million people in Califor-nia, and 600,000 are added every year. Thereare “no-growth” perspectives, “pro-growth” perspectives. We need a more honest approach.

Leadership: You’re here because you areleaders. The water world is dense with fiefdoms.When we find the leaders in those local fiefdomsit’s amazing how effective we can be. I look forthose who have the confidence, leadership, andtrust of their communities.

Business as usual is out. We have somecommonalities, and we need to find themand focus on them.

David Guy

An agricultural perspective on water

18

Maria O’Brien is a member ofModrall, Sperling, Roehl, Harris andSisk’s Natural Resource Depart-ment. Because of her broadexperience with business clientsseeking permitting on waterprojects and secure water rights,she was asked to speak onbusiness’ perspectives on water.Prior to joining Modrall, she waslaw clerk to the Honorable JamesA. Parker of the U.S. District Court,District of New Mexico.

As a water lawyer I’ve beenfortunate to work with a variety ofinterests—economic development

interests as well as tribal and public sector clients, ranching interests, and businesses. The businesscommunity and business interestshave an important role in developingwater alternatives.

I am an east coast transplant of 16years, the first in my family to live west

of the Mississippi. Coming from someplace where there is water in the air givesme an appreciation of aridity. Beforestudying for the law, I was a botanist. As abotanist I looked at the effect of copperand silver contamination on the sexualreproduction of brown kelp. I becamemore interested in finding solutions thandefining problems.

At its best, a business developmentproject can provide a significant benefit tothe community in which it takes place.Reciprocally, a cooperative watersettlement, especially of tribal claims, canprovide tremendous benefits to businesscommunities.

Litigation rarely provides a foundation forthe ongoing cooperative collaborativerelationships that are essential to taking asettlement into the future. The sacrificeof traditional interests to the new use of abusiness development is not a goodbusiness foundation. Complex technicaland emotional issues underlie anydevelopment of a water resource Who isentitled? Who gets to decide where thewater resource gets allocated? But thevery first question must be—where is ourcommon ground?

Like tribes, municipalities, or irrigators, abusiness development needs a reliable,cost-effective, timely source of water. Theagricultural and acequia communitieswant a reliable source of water to continueand preserve a valued way of life. Environ-mental advocates need a reliable source ofwater to support environmental needs. Weneed skills in finding the commonalitieshere, in building the bridges.

The words certainty and flexibility come tomind. How much of the water resource isavailable? For what period of time? Wehave large and largely unquantified tribalclaims, which are unavailable andvulnerable. The partnerships which mustform to enable business development willonly happen if we can clarify who has theauthority to decide. The modus operandi

here has been competition for water,hoarding of rights by various interests.But competition often runs smack upagainst these interests. Voluntaryagreements have been successful. Theshortage-sharing agreement in the SanJuan basin involves irrigators, the NavajoNation, the Jicarilla Nation, municipalities,industry and commercial water users.

There is much to do to improve certaintyand flexibility to allow mutually beneficialopportunities, to seek ways to enableeconomic and business development toproceed without permanently sacrificingtraditional uses. Litigation and legislationboth have roles here, but the necessarybalance will be found in exploring thecommonalities of interest.

Maria O’Brien

A business perspective on water

quality requirements for industry. Morethan 80% of municipal water doesn’t haveto meet high quality standards. Thisfeature of municipal demand will becomeincreasingly important in the future.

In the end, I hope we can share ourvalues. In that process I hope to see achange in some of the meanings of thewords we use. Most of us were rearedwhere the key words are ‘priorappropriations’, ‘beneficial use’, and‘ownership’. Successful settlements willchange these meanings: ownership maybecome stewardship; exploiters maybecome conservators; adversaries maybecome partners; conflicts may becomecollaborations. These key phrasesrecognize the core political nature of thedisputes.

Our success won’t lie in settlement ofdisputes, but in implementation of thosesettlements. I hope that we will grow inunderstanding of the political climate inwhich decisions are made, and shift ourbalance toward the future—discoverapproaches that take care of our currentproblems while weighing them against theimpacts on the future.

19

George Britton is presently deputycity manager of Modesto, Califor-nia, and formerly served as deputycity manager of Phoenix, Arizona.He heads Modesto’s EconomicDevelopment Team.

George Britton

A municipal perspective on water

When Mark Twain said, referring tothe placer mining claims,“Whiskey is for drinkin’ and

water is for fightin’,” he was about 50miles north of Modesto, California.

I was asked to talk about municipal waterand the values associated with it.Municipal water values are a mirror imageof what you’ve heard from others about theneed for reliability and long-termsustainability. We look for a market basketof water resources—we need to develop a balanced water budget, a mix of manysources, so as not to be vulnerable to failure in any one area. We need quantity,quality, reliability, sustainability and political viability. The “small p” politicalelement is essential to any watersettlement. Courts can give us a decision, but they can’t give us political viability.Nor can they give us affordability.

When I worked for Phoenix, I participatedin seven settlements in central Arizona.What do cities worry about? What do theylook at? You can’t forget the economic context. You have to worry about third-party impacts. The time-frame of impactsis crucial—we are governed by elected representatives who have one or two terms.I agree that litigation has an effective role.There are regional, state and nationalissues. There are environmental, social and economic impacts.

The municipal water user is a uniquecreature. We take a lot of water, but onlyabout 1% of that water needs to be ofdrinking water quality. Another 10% has

20

Paula Garcia is from Mora Countyand with her family operates asmall-scale ranching and forestrybusiness there. She is executivedirector of the New Mexico AcequiaAssociation, a state-wide organi-zation of acequias that promotessocially-just community develop-ment by protecting historical waterrights of acequias and by strength-ening local sovereignty and selfdetermination. She is a member ofthe N.M. Water Trust Board and theN.M. State Land Trust AdvisoryBoard.

“Buenos dias le de Dios.”

In my community, whensomeone is asked to speak, they

say “Te dan la palabra,” “They give youthe word.” Thank you for giving me the

word today.

I’m from Peñasco Blanco, Vallecitos de Mora. I am director of the youngNew Mexico Acequia Association,which works for the survival of acequias. To understand why acequias are in a position wherethey have to defend their water

rights, be aware that there are tens of thousands of parciantes, irrigators

who have a share in a traditional ditch, ashare which entitles them to water andrequires them to labor to maintain theditch. These parciantes are concentratedwhere rates of poverty are the highest, in the areas of highest Hispanic concen-tration.

The acequia carries water. It is beautiful.Acequia has both a physical and apolitical meaning. It’s the physical ditchand it’s the community that depends onthe ditch. If you divert from the acequia

you are in the acequia community, youbelong to an acequia, you have aresponsibility to participate, to clean theditch. As when acequias wereestablished years ago, the mayordomo, orsteward, is still charged with gettingscarce water to irrigators, depending onwhat’s available. There are elaboratecustoms to distribute water withinacequias and between acequias. Thisdistribution is called repartimiento, and itis a living and growing organism, asacequias are living and also ancientinstitutions with African origins. Here in

New Mexico the acequia is intertwinedwith interactions with Pueblo neighborsover hundreds of years.

On the suerte—the piece of land that youwere allocated when the land grants weresettled—each irrigator got a use right,which was considered a communityresource. There were rules about thatright, rooted in a legal tradition thatpredates the United States:

• Water is to be shared when scarce.

• Water is tied to the land.

• The right to use water is tied toresponsibilities.

The first territorial law codified manyacequia practices, including mayordomos

and the repartimiento. Unfortunately,many of the communal lands did not farewell at this time, and went into federal orprivate ownership.

The 1907 water code was a mixed blessingfor acequias; it gave acequias very seniorand protected rights while setting thestage for transferability of those rights. Itwas not until the 1960’s whenadjudications came that the problem ofindividualization became apparent. Fromthe acequia perspective, adjudication islose/lose. You can either adjudicate or loseyour rights. It’s very expensive to stay inthe adjudication.

People began to realize that there was aprivate ownership element of water rights.In the 1980’s water transfers made clearthe threat identified in the adjudications.There was, for example, a transferproposed in Mora. Word spread thatsomeone had sold a water right. Peopleprotested saying “that water wasn’t theirsto sell.” This protest is unresolved in thecourts.

Paula Garcia

An acequia perspective on water

21

Because of this issue, the New MexicoAcequia Association was organized to findways to protect acequias from the force ofthe market. For acequias, water meansself-determination. If we can retainownership of water, we can play a vital rolein the growth and independence of ourcommunities.

The threat to acequia survival is two-pronged—the need to defendadjudications and the vulnerability tomarket forces. One response to thesethreats is area of origin protections. Theability to plan for our water future is vitalto the survival of community. Allcommunities need to plan for a waterfuture. We shouldn’t assume that growthof one community will come at theexpense of another.

Another response is to provide a framework for local decision-making andconflict-resolution. A statute enacted in2003, sponsored by New Mexico StateSenator Carlos Cisneros, recognizes theauthority of acequias to approve or deny atransfer of water out of the acequia.

We have talked about the need to fund implementation of settlements.Settlement processes need to be well-funded as well. These settlementsshould be approached in such a way that all parties can come to the table,especially where there is deep economicinequity.

22

Dale Pontius is a natural resourcesattorney, presently with the Depart-ment of Interior Solicitor’s Office,and formerly assistant solicitor forLand and Water. He served as staffcounsel to Congressman Morris K.Udall’s Subcommittee on Energyand the Environment and asexecutive assistant to GovernorBruce Babbit when the ArizonaGround-water Management Actwas adopted. He has also beenconservation director of AmericanRivers and consultant to theWestern Water Policy ReviewCommittee.

Iam here today speaking from theperspective of a staff attorney for theDepartment of the Interior in the Santa

Fe Field Office of the Office of theSolicitor. However, these are my personal

observations and I do not speak onbehalf of the Department or anyagency I represent.

My legal and policy experience withwater issues includes a variety ofdifferent policy and legal positions infederal and state agencies and as acongressional staff attorney, working

for non-profits, such as the NatureConservancy and American Rivers, and

as an attorney and consultant in privatepractice. I had some significant bosses andmentors during that time, includingCongressman and presidential candidateMorris Udall, and Arizona AttorneyGeneral, then Governor and laterSecretary of the Interior, Bruce Babbitt.

One of the lessons I learned about westernwater is that natural systems—our riversand streams in the west—are almostalways last in priority—last in line that is,to retain enough water to support theecology of these systems. As most of youknow, most of the surface flow (andground water as well in New Mexico, as insome other states) has been appropriatedfor other uses. So we start from aperspective now of having to be verycreative if we are to retain or transfer anywater to sustain and perhaps enhanceinstream flows in these rivers and streamsand riparian ecosystems.

I currently represent the Bureau of LandManagement and the U.S. Fish andWildlife Service in water-rights matters inNew Mexico and parts of the southwest.This involves acquiring and protecting

water rights for wildlife refuges, like theBitter Lake NWF near Roswell and thenationally famous Bosque del Apache NWFnear Socorro, NM. And water rights for fishhatcheries—many of which now arerearing endangered species—in NewMexico, Oklahoma and Texas. Previously Iworked on the famous litigation filed byenvironmental groups to protect theendangered Rio Grande silvery minnowfrom extinction. That was quite aneducation in the art of the possible underthe ESA, given the power of cities andagricultural water rights interests. Thefinal chapter of that struggle has not yetbeen written, but it is a classic case ofwestern water conflicts.

To expand on my own “water perspective,”I would suggest that over time I developeda “conservation ethic” from my personalexperiences that included time in themountains and along streams, hiking andfly fishing. Estevan López mentioned afew minutes ago that to him “water is fun,”an astute comment that I think most of uswould agree with. I once made a less-astute comment when I was leaving my jobas policy advisor to Governor Babbitt inArizona. When asked by a reporter what Iwould do next, I replied that I wanted todo a lot of fly fishing. When queriedfurther about that answer, “What is itabout fly fishing?” I replied “Because it isthe most fun you can have standing up.”That of course appeared in the article. Butbeing in a beautiful mountain meadowbeside a clear stream full of trout doesmake one appreciate water in new ways.

I am reminded also of the eloquentcomments about water by Ted Strong, a

Dale Pontius

A federal perspective on water

23

member of the Yakima Nation, and theformer director of the Columbia RiverInter-Tribal Fish Commission. Ted was alsoa member of the board of directors ofAmerican Rivers when I served asconservation director of that non-profit inWashington DC and as southwest regionaldirector.

I helped organize a conference in Santa Fe on water issues, with a specialemphasis on Native American attitudesabout protecting the natural systems. Ted was also a member of the President’sCommission on Sustainable Developmentand spoke with great passion and about hisexperience as a Native American growingup on the Yakima where salmon were suchan integral part of their culture. As part ofthe Commission’s work, we traveled toTaos to listen to similar stories from thatPueblo's elders about how they relatedspiritually to their land and theirsuccessful struggle to protect Blue Lake. Itwas truly an incredible experience to hearthese tribal elders speak from the heartabout their attachment to the naturalworld.

I want to add just a few other thoughts inthe time I have remaining. One, that weare still living with a mining law that isbasically the same as when it was passedin 1864, when Ulysses S. Grant wasPresident. This is by way of saying wehave some very old laws and practices fordealing with our precious naturalresources. And as we see the need tochange these old ways, to reflect changingneeds and values, it becomes more andmore difficult to do so. In many respects, it

is a race against time that we are losing. Itis true, consumptive uses of resources willcontinue, but there are limits to whatshould be allowed, and we need a bettersystem of governance where these valuescan be considered more consciously. If we are going to rely on market systems toprotect and restore our water ecosystems,we need to get serious about it and providethe resources and institutional structuresto do so.

Another concern now apparent is theeffect of long-term drought on systemsthat are already over-appropriated. Just afew years ago, the Colorado River basinstates were still arguing over surplus criteria for that basin. Now they are struggling to patch together shortage rulesas the reservoirs have shrunk to less than50% of their capacity. What chance do our instream flow needs have in such apolitical and economic crisis?

There are many other water issues I havebeen involved in and observed during mycareer, like the lack of interest inconservation and providing financial andlegal incentives for reuse of wastewater.For example, not many years ago amassive wastewater treatment plant wasbuilt near Tijuana to serve northernMexico and San Diego. The billions ofgallons produced by this resource is goinginto the ocean. I conclude by saying thatfor water, as for oil, conservation is reallythe only new source.

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25

The Conference Community

Membership of theBreakout Groups

Acentral exercise of the conferencewas small-group work on ahypothetical cross-cultural water

problem. Planners wished to avoid slantingthis small-group discussion by building inthe cultural bias of our own water law. Thehypothetical case was, for this reason, setin an emerging nation, “Ourplace,” whichincludes four cultural groups as well as across-cultural environmental movement.

Because “Ourplace” has not had a nationalidentity, it has no water law, though thefour groups have a history of practices andagreements which were partially laid out inthe conference materials. The hypotheticaltells that a recent referendum of membersof all cultural groups and the environ-mentalists showed overwhelming supportfor formation of a unified independentgovernment. A ten-year transition periodwas declared for the formation of the newgovernment, and a ConstitutionalConvention with representatives from allsocial sectors will develop the legal andcivic principles of the new nation.

On the first day of the conference, eachconferee was assigned to a cultural group,and these groups meet in cultural caucusesto develop their group’s position on therights and management of naturalresources, particularly water, in preparationfor the Constitutional Convention.

On the second day of the conference therewas no small-group meeting, but eachconferee was to seek out a member of eachof the other cultural groups and find outwhat concerns were expressed in the othercaucuses.

On the final day of the conference,conferees met in newly formed“constitutional convention committees” thatincluded members from all of the culturalgroups, to hammer out a consensusexpression of the principles of entitlementsto water and a sketch of the type ofinstitution that might interpret theseprinciples.

Much of the summary and quotes from theConference Overview (page 3) was drawnfrom these small groups and their plenaryreports. Members of the first-day culturalgroups are listed below, with a brief bio.

An Excel file in which notes taken during thesebreakout groups are captured has formed thebasis of much of these proceedings and is availablefor interested parties, alongwith electronic copies of the hypothetical, on theUtton Center website athttp://uttoncenter.unm.edu

26

David Benavides directs the Land andWater Rights Project for New Mexico LegalAid. He represents low-income personsand acequia communities in gaining legalrecognition for their water rights and theirhistoric water-use customs, and advocatesfor the rights of acequias in variousjudicial and administrative proceedings.He lives outside of Santa Fe.

George Britton, deputy city manager ofModesto, California, heads up theEconomic Development Team which dealswith development, redevelopment,economic development, planning,engineering, utilities, infrastructure, andoperations and maintenance. He wasformerly deputy city manager of Phoenix.

Peter Chestnut represents Pueblointerests in the federal New Mexico v.

Aamodt adjudication and the Rio San Joséadjudication in state court. Chestnutserved as chairman of the Indian LawSection of the New Mexico Bar. He editedthe 1991 and 2001 editions of the New

Mexico Tribal Court Book.

Vickie Gabin is the special master for the U.S. District Court, DNM, in fournorthern New Mexico stream systems—Taos, Chama, Santa Cruz/Truchas, andJemez, and in Western New Mexico for the Zuni River.

Eileen Gauna teaches environmental and property law at SouthwesternUniversity School of Law in Los Angeles,and is currently a consultant to the N.M.Environment Department’s Initiative onEnvironmental Justice. She serves on twoenvironmental justice committees for theAmerican Bar Association. Gauna hasspoken at workshops, conferences andsymposia on environmental law andenvironmental justice.

Albert Hale, President of the NavajoNation from 1995 to 1998, has beenassistant Attorney General for the NavajoNation and special counsel to the NavajoNation Council. He is the former chair ofthe Navajo Nation Water Rights Commis-sion. Born and raised in Klagetoh, Arizona,Hale is now in private practice in St.Michaels, Arizona and serves as an ArizonaState Senator.

Steve Harris is the founder/proprietor ofFar-Flung Adventures, a river outfitter-guide company, and founder/executivesecretary of Rio Grande Restoration, anon-profit streamflow advocacy group. Heis active in regional and state water-planning forums and in the Middle RioGrande ESA Collaborative Program’s WaterAcquisition and Managementsubcommittee.

Brian Parry is Native American Affairsprogram manager for the U.S. Bureau ofReclamation’s Upper Colorado Region.Previously, he worked with the WesternArea Power Administration of theDepartment of Energy. Brian has been atribal council member for the North-western Band of Shoshone and a memberof the Utah State Board of Education’sIndian Education Committee.

Jacob Pecos directs the Pueblo deCochiti’s Natural Resources andConservation Department, and is technicalrepresentative for the Six PueblosCoalition for Water Rights. He administerscapacity-building programs in wastediversion and utilities, and performsongoing environmental, economic andcultural studies related to CochitiReservoir.

David Benavides

Highlanders

The Highlanders are an aboriginal hunting and fishing people of the Blue Riverhighlands of Ourplace. Their ancestral home is the Green Mountains, an area richin water and mineral resources.

Steve Harris

Eileen Gauna

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Peter Pino currently serves as Governorof the Pueblo of Zia. He is a boardmember of Education Fund, Inc., asubsidiary of the Council of EnergyResource Tribes, and a board member ofMesa Verde Foundation, as well as amember of the New Mexico Game and FishCommission. Governor Pino is a graduateof New Mexico Highlands University andreceived an MBA from the University ofNew Mexico.

Shirley Solomon is co-founder of theSkagit Watershed Council, a not-for-profitwith 41 members ranging from the federalgovernment to local farming and fishinggroups, whose mission is to restorefunctioning natural systems throughvoluntary participation. Solomondeveloped the Friendship Circle model tobuild understanding between Indian andnon-Indian neighbors, electedrepresentatives and key policy staff.

Hilary Tompkins was born in Zuni, N.M.and is an enrolled member of the NavajoNation. Presently deputy legal counsel toGovernor Bill Richardson, Tomkins waspreviously a private sector attorneyrepresenting pueblos and tribes on a widevariety of issues including tribal self-governance, water and environmental law,and general civil litigation.

Vincent Toya, tribal administrator for the Pueblo of Jemez, is a former governorand serves as ex-officio on mostcommittees and boards on behalf of thePueblo of Jemez.

John Utton, a partner in the Albuquerquelaw firm of Sheehan, Sheehan & Stelzner,P.A., focuses his practice on water rightsadministrative law and water planning;water rights litigation and adjudications;and land use planning and developmentlaw. Utton has taught seminars onadvanced water law and natural resourceswriting at UNM’s Law School.

Jennifer Wellman, hydrologist and Water Resources Division manager for thePueblo of Santa Ana, conducts watershedmonitoring and water resource planningprojects which apply hydrologic principlesto technical objectives in the context of abroad understanding of social issues andpolicy implications.

John Utton (and Son)

Vincent Toya

Michael Benson works for the NavajoNation in Water Resources Management.He has been an active liaison between theNation and New Mexico regional waterplanning initiatives and serves on theboard of the New Mexico Water Dialogue.Previously, Michael worked in the privatesector, specializing in public relations,Navajo reservation business consulting,and publishing.

Michael Campana directs UNM’s WaterResources Program. He does waterresources research on developingcountries, transboundary issues, andclimate change. He works internationallyin Honduras, Panama, and the southCaucasus, where he directs a six-countryNATO-funded project. He is thepresident/treasurer of the Ann CampanaJudge Foundation, a non-profit working inwater, health, and sanitation in developingcountries.

Paula Garcia directs the New MexicoAcequia Association, a statewideorganization of acequias that promotessocially-just community development byprotecting acequias’ historic water rightsand by strengthening local self-determination. She is a member of theN.M. Water Trust Board and the N.M. StateLand Trust Advisory Board. Garcia wasraised in northern New Mexico where sheand her family have a working ranch.

Ray Gilmore chairs the Navajo NationWater Rights Commission. Ray has beenbranch chief of the Navajo Nation BusinessPreference Program, a member of theNavajo Nation Council, chair of the NavajoAgricultural Products Industry, the NavajoFilm and Media Commission and theNavajo Tribal Utility Authority Manage-ment Board, and a member of theNavajo/Hopi negotiating team.

Callie Gibson, formerly Callie Gnatowski,is the field representative for Senator PeteDomenici on land and water issues, andserves as the Senator’s liaison with majorlocal initiatives such as the Middle RioGrande ESA Collaborative Program.

David Guy has been executive director ofthe Northern California Water Associationsince January 1999. He works closely withthe U.S. Congress, the state legislature andstate and federal agencies. In 2001, Davidwas appointed to serve on the CaliforniaBay-Delta Public Advisory Committee.

Estevan López was appointed to directthe N.M. Interstate Stream Commission byGovernor Bill Richardson in January 2003;he also serves as the deputy StateEngineer. He has been both countymanager and utility director for Santa FeCounty. A native of Peñasco, López serveson four New Mexico acequia committeesand is president of the Peñasco MutualDomestic Water Consumers Association.

Roger Madalena is a member of theHouse of Representatives for District 65 inthe New Mexico State Legislature. Inaddition, he serves as the executivedirector for Five Sandoval Indian PueblosInc. and currently chairs the Tribal WaterNegotiation Team.

Francis McGovern was among the firstin the nation to write about and to usealternative dispute resolution (ADR)techniques to avoid or to improve thelitigation process. Acting either as a court-appointed special master or as a neutralexpert, he has developed solutions in mostof the significant mass claim litigation inthe U.S. McGovern is a member of theDuke University School of Law faculty.

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Michael Campana

Callie Gibson

Michael Benson

Valley Folk

The Valley folk are an aboriginal agricultural people of the Blue River lowlands ofOurplace. They live in one town and on 150,000 hectares of agricultural lands andhave two diversion dams for irrigation. Located downstream of the other Ourplace

communities, they are most likely to be water-short in drought or when upstreamdemands grow.

29

Jerry Muys, the president of Muys &Associates, P.C. in Washington, D.C.,practices public land, water resource, andenvironmental law, fields in which he haslectured and written extensively. Jerry hastaught federal land and natural resourceslaw at the University of Virginia Law Schooland water law at George WashingtonUniversity Law School.

Cathy Newby is the Native Americanadministrator for PNM’s GovernmentAffairs Department. She is charged withdeveloping relationships with tribal leadersand expanding PNM’s community outreachto New Mexico’s 22 tribes who are valuedPNM customers. A Navajo from Tohatchi,New Mexico, Cathy has 15 years ofutility/tribal government-relatedexperience

Alex Puglisi is the environment directorfor the Pueblo of Sandia, managingprograms concerned with water resources,water quality, solid waste, bosquerestoration, endangered species, and GIS.He has extensive experience with federal,municipal, tribal and state naturalresources agencies as well as Los AlamosNational Laboratories.

John Redlinger is presently specialprojects officer for the Bureau ofReclamation’s Regional Office. He hasworked for Reclamation on Colorado RiverBasin projects and issues for 28 years. Hisprimary background is as a project/studyteam leader in water operations andplanning projects.

Michael Schoessler has worked for theDepartment of Interior Solicitor’s Office inWashington, D.C., Minneapolis, andAlbuquerque, focusing on issues involvingIndian water rights and ESA issues. Hechairs Interior’s Federal Negotiation Teamon the San Juan River Basin, has workedon the Aamodt litigation and settlementefforts, and on ESA issues in New Mexicoas well Arizona.

Brian Shields was a founding boardmember of Amigos Bravos, for which hehas served as both president and vicepresident and, presently, as executivedirector. He was born and raised inBarcelona, Spain and is fluent in Spanish,English, and French. Brian’s multiculturalperspective supports and informs hisauthentic cultural and geographicalknowledge of New Mexico’s rivers.

Michael Schoessler

John Redlinger

Jerry Muys

Alex Puglisi

Conci Bokum directs 1000 Friends ofNew Mexico’s Water Project. She is authoror coauthor of several basic New Mexicowater policy documents and served on thecommittee that developed New Mexico’sRegional Water Planning Handbook.

Conci is board president of the NewMexico Water Dialogue, a member of theJemez y Sangre Regional Water PlanningCouncil and of the Governor’s Blue RibbonWater Task Force.

Jesse Boyd practices law in Santa Fe,New Mexico. Jesse received a certificatein Natural Resources Law along with hisJ.D. from the University of New MexicoSchool of Law in May 2003. In the yearsbefore law school, Jesse owned asuccessful environmental consultingbusiness in Los Angeles.

Susan Cottingham has directed the staffof Montana’s Reserved Water RightsCompact Commission since 1991, directingthe negotiation of five Indian water rightssettlements as well as three other majorcompacts for federal reserved water rights.She has advised the States of Alaska andWashington on tribal relations and wateradjudication, and speaks at conferences/symposia around the West.

Dede Feldman is a former environmentalreporter and teacher who was elected tothe New Mexico State Senate in 1996. Shehas been a member of the Interim Waterand Natural Resources Committee forseven years, and is the sponsor of theAquifer Storage and Recovery Act (1999)and the New Mexico State Water Plan(2003).

Kyle Harwood is an assistant Santa FeCity attorney with primary responsibility inland and water issues. He has a lawdegree and a Water Resources Mastersdegree from UNM. Kyle has been anenvironmental health scientist forBernalillo County and a law clerk in theAamodt litigation. He has consulted onTasmanian water policy and representedmunicipalities, schools and individuals inprivate practice.

Elaine Hebard returned to school afterpracticing law for ten years and travelingfor three, to focus on regional naturalresource planning. She has worked onbinational watershed managementbetween New Mexico and Chihuahua,particularly in fostering a groundwaterdialogue between Columbus, New Mexicoand Palomas, Chihuahua and has beenactive in regional water planning in theMiddle Rio Grande.

James Hena, former governor of thePueblo of Tesuque and former chairman of the All Indian Pueblo Council, has been involved in tribal government since1957 and has been active in the Aamodt

litigation since it was filed over 35 years ago.

John Jackson is a member, tribalcouncilman, and current vice chairman ofthe Pyramid Lake Paiute Tribe. He hasdirected the Los Angeles Indian Center,managed a tribal enterprise, and served astribal planner, and is presently the directorof water resources for the Pyramid LakePaiutes, working with the tribe’s waterissues and serving as liaison with federalagencies, the State, and private waterinterests.

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Conci Bokum

Kyle Harwood

James Hena

John Jackson

Gallegos

The Gallegos, an agricultural/mercantile people originating in a region north ofOurplace, colonized the Blue River valley in the 15th century, building irrigationsystems, villages, and churches. This community seeks water storage on the Blue

River’s upstream tributaries.

Leonard Loretto is currently employedas the director of Public Works for thePueblo of Jemez. He is a former Governorand serves as a Jemez Tribal Councilmember.

Marcia Macomber directs programdevelopment and coordinates research andeducation programs for the UniversitiesPartnership for Transboundary Waters—an international consortium of universities.She has worked with the University ofMichigan’s Population, EnvironmentalChange, and Security (PECS) Initiative,with the Oregon commercial ground-fishfishery, and with subsistence farmers inWest Africa.

Stanley Pollack represents the NavajoNation on all water rights mattersincluding five general stream adjudicationsin Arizona and New Mexico. He ispursuing litigation and/or negotiated waterrights for the Navajo Nation in Arizona,New Mexico, and Utah in both the Upperand Lower Colorado River basins.

José Rivera is a professor at UNM wherehe teaches graduate courses in publicadministration, community and regionalplanning, and water resources. He focuseson common property resources, traditionalirrigation organizations, and mutualassistance societies, and is the author ofAcequia Culture: Water Land and

Community in the Southwest (UNMPress, 1998).

DL Sanders is chief counsel to the NewMexico State Engineer and director of theLitigation and Adjudication Program, inwhich he has worked for 14 years. He hasresponsibility for the prosecution of allNew Mexico water rights adjudications andprovides legal counsel to the StateEngineer on all matters related to thesupervision of water-rights administrationin New Mexico.

Jerry Sherk has served as a trial attorneywith the Environmental and NaturalResources Division of the U.S. Departmentof Justice, been a visiting scholar at theUniversity of Wyoming College of Law, anda visiting professor at Georgia StateUniversity. Now in private practice, he isan adjunct professor at the University ofDenver College of Law.

Jerald Valentine is currently a NewMexico State Court District Judge,presiding over the Lower Rio Grande BasinAdjudication. In addition to trial work,Judge Valentine is active in developingways to streamline the court system andimprove its efficiency. He is presentlydeveloping education materials for NewMexico’s new water law judges.

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Marcia Macomber

Stanley Pollack

Mr & Mrs DL Sanders

José Rivera

Jim Davenport, chief of Nevada’sColorado River Commission Water Division,has served as assistant Attorney Generalfor Washington State, associate counsel forthe Environment and Public WorksCommittee of the U.S. Senate, and Nevadaspecial deputy Attorney General for sitingof high-level nuclear waste repositories.His public and private law practiceincludes many areas of natural resourcesand regulatory law.

Laura Rose Day directs the PenobscotPartners coalition. With wide experienceon federal and non-profit environmentalcoalitions, Day focuses her training inwildlife ecology and environmental andenergy law on protecting the publicinterest in waterways. She and her familylive in Hallowell, Maine near the KennebecRiver.

Johanna Emm, water quality coordinatorfor the Yerington Paiute Tribe in Yerington,Nevada, is responsible for sampling/monitoring the Tribe’s ground and surfacewaters for impacts associated with a nearby abandoned open-pit copper mine.

Mary Helen Follingstad manages NewMexico’s regional water planning programfor the Interstate Stream Commission.Previously community planner for Santa FeCounty, Mary Helen has served on theSanta Fe Historic Design Review Board,the Santa Fe Urban Policy Board and theboard of directors for the Old Santa FeAssociation. She was recently appointedto the Santa Fe Extraterritorial ZoningCommission.

Matthew Gachupin is presently 1st Lt.Governor for the Pueblo of Jemez. He is aForest Service employee and assists withthe natural resources programs. In 2005he will return to the Jemez DistrictResources Program as a technician.

Sterling Grogan is the biologist andplanner for the Middle Rio GrandeConservancy District. Specializing in therehabilitation of disturbed ecosystems inthe U.S. as well as Chile, Costa Rica,Mexico and Venezuela, Grogan is currentlya member of the New Mexico ChihuahuaBorder Commission and the boards of theQuivara Coalition and the Rio GrandeNature Center State Park.

Dan Hurlbutt was designated presidingjudge in the Order to determine venue ofpetition for general adjudication of waterrights in the Snake River Basin in June1987. In November 1987 Judge Hurlbuttlodged a Commencement Orderestablishing the beginning of what is nowknown as the Snake River BasinAdjudication. Judge Hurlbutt is retired butcontinues to fill in on the bench as a seniorjudge.

Fidel Lorenzo is director/liaison of theHaaku Water Office, which serves as thelead entity for the Pueblo of Acoma in allwater matters including litigation. He has avery successful track record in settingthings in motion with EPA and otherorganizations on water matters.

Robert Mooney is the chair of the watercommittee of the Pueblo of Laguna.

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Marks

Originally occupying a military outpost during the 19th century, the Marksdeveloped coal mining operations in the Highlands before the turn of the century,and established an urban center between the agricultural communities of the

Gallegos and the Valley Folk.

Sterling Grogan

Laura Rose Day

Johanna Emm

Matthew Gachupin

Dale Pontius is an attorney with theDepartment of Interior Solicitor’s Office,and was formerly assistant solicitor forLand and Water. He has served as acongressional advisor and as executiveassistant to Governor Bruce Babbit duringthe adoption of the Arizona GroundwaterManagement Code. Pontius has also beenconservation director of American Riversand consultant to the Western Water PolicyReview Committee

Hilario Rubio directed planning andzoning for San Miguel County for over tenyears, and oversaw the first Mora/SanMiguel Water Plan. Presently he is theState Engineer’s acequia liaison officer,assisting participants with the adjudicationof water rights in Northern New Mexicoand helping acequia associations withgovernance, distribution and other issues.He is also president of the Las Vegas LandGrant Board of Trustees.

Gil Sandoval is a lifelong resident ofJemez Springs, New Mexico, a fifthgeneration descendent of Spanish settlers.He attended Colorado A&M in Fort Collinsand has worked in a professional capacityfor the Santa Fe National Forest for 35years. He has been involved in the JemezBasin adjudication of water rights since1983 as chairman of the Jemez River BasinWater Users’ Coalition.

Jeanette Wolfley’s law practice focuseson Indian law, natural resources protectionand environmental regulation. A Shoshone-Bannock tribal member, she has workedwith the Native American Rights Fund, and served as general counsel for theShoshone-Bannock Tribes, whom shecontinues to represent as special counselon water rights. She is an adjunct associateprofessor at Idaho State University in theIndian Studies Program.

David Yepa is an enrolled member of thePueblo of Jemez. He has practiced Indianlaw since 1987 in matters concerningwater law, environmental issues, childabuse cases, taxation, land issues, housing,jurisdiction, protection of culturalresources and religious sites, and draftingordinances and tribal codes for varioustribal clients.

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Mary Helen Follingstadt

Jeanette Wolfley

Hilario Rubio

Fidel Lorenzo

Laurence Brown, a member of theNavajo Nation, manages tribal/governmentrelations at Sandia National Laboratories.Brown’s current responsibilities includestate and tribal government interactions invarious research and developmentprograms that include water. He has atechnical background with degrees inchemical and materials engineering.

Paul Chinana, currently Governor of thePueblo of Jemez, also served as Governorin 1983 and 1995. He served as 2nd Lt.Governor in 1977 and has been a tribalcouncilman since 1983. He retired after 28 years from Los Alamos NationalLaboratories, where he worked withcontractors for technical support. He is a member of the Jemez Tribal WaterNegotiation Team.

Carlos Cisneros has served District 6, inNorthern New Mexico, as State Senatorsince 1985. He is chairman of the Conser-vation Committee and vice chair of theWater and Natural Resources Committee(interim). In January 2005 he received theNew Mexico Earth Science AchievementAward for his outstanding contributionsadvancing the role of earth science in areasof public service and public policy in NewMexico.

John D’Antonio was appointed NewMexico State Engineer by Governor BillRichardson in January 2003. He alsoserves as secretary of the InterstateStream Commission, chairman of the NewMexico Water Trust Board, and NewMexico Commissioner to the Rio Grandeand Costilla River Compacts. John is aregistered professional engineer.

John Echohawk directs the NativeAmerican Rights Fund (NARF), founded in 1970. NARF currently represents theNez Perce tribe of Idaho, the KlamathTribes of Oregon and the Tule River Tribeof California on water rights issues, andworks with federal, state, tribal, andnongovernmental agencies andorganizations to promote favorable Indianwater-rights settlement policies.

Kara Gillon is water counsel withDefenders of Wildlife in Albuquerque working on water, endangered species,public lands in the Sonora Desert and U.S.-Mexico borderlands. She is a keymember of their Lower Colorado RiverBasin Ecosystem Campaign, andrepresents the Alliance for the Rio GrandeHeritage on the Middle Rio Grande ESACollaborative Program’s SteeringCommittee.

Lisa Gover directs the National TribalEnvironmental Council’s SuperfundResearch Program, which includesresearch on contaminated sites and federalfacilities’ impacts on tribal governmentresources. She has worked with tribal,federal, state, local and internationalagencies concerning tribal governmentissues related to environmental justice andother concerns.

Rhea Graham is water resourcesmanager for the Pueblo of Sandia. She was previously the N.M. Interstate StreamCommission’s first director of planning.During the Clinton administration, Grahamserved as director of the U.S. Bureau ofMines. She is a member of the NationalResearch Council’s board on EarthSciences and Resources, and is a registered geologist and engineering geologist in Oregon.

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Love

LOVE, Leave Ourplace’s Virgin Ecosystems, is an environmental-preservationmovement that emerged among the Mark communities during the 20th century,which attracted wide support from the aboriginal and Gallegos communities. Due

to deep cultural differences, this multicultural preservationist alliance is loosely organized.

Kara Gillon

John Echohawk

Sen. Carlos Cisneros

Rhea Graham

Tom Kinney’s Colorado and New Mexicolegal practice focuses on water-rightsadjudications and water-qualityregulations. Before practicing law, Kinneyworked as a hydrologist for the WyomingState Engineer, a GIS specialist with theCity of Albuquerque, and a geologist forthe Army Corps of Engineers on a largepower and flood control reservoir.

Michael Nelson is the settlementjudge/mediator in New Mexico’s Aamodt

adjudication in Federal District Court.Before retiring, Judge Nelson wassettlement judge in Arizona’s LittleColorado and Gila River adjudications.Widely published in the area of Indianwater rights, tribal law and tribal-staterelations, Nelson has been active ineducation and training of state, tribal andfederal judges.

Maria O’Brien practices naturalresources law at Modrall Sperling, Roehl,Harris, & Sisk, P.A. She represents clientsprimarily in the water resource arenabefore the N.M. State Engineer, the N.M.Public Regulation Commission, and in stateand federal court. Prior to joining ModrallSperling, she served as law clerk to theHonorable James A. Parker, U.S. DistrictCourt, District of New Mexico.

Darrell Riekenberg is district counselfor the Army Corps of Engineers’Albuquerque District, where he isresponsible for issues related to civil work,interagency, and military constructionprojects, operation of Corps reservoirs, andother federal activities in the District. His duties include interagency work onenvironmental and water resource issuesincluding reservoir operations andcompliance with interstate watercompacts.

Peter Sly is author of the Reserved Water

Rights Settlement Manual, which hewrote as director of the Conference ofWestern Attorneys General. He hasspoken widely on legal ethics, water rights,Indian law, and is an active participant inthe ABA Water Law Section. Sly recentlymoved his practice from California toMaine where he teaches Indian and naturalresources law at Colby and College of theAtlantic.

Glenn Tenorio is a tribal member fromthe Pueblo of Santa Ana. He served asLieutenant Governor during the Pueblo’s2003 Administration. Glenn is currentlyworking for the Department of NaturalResources as the Water ResourcesTechnician and enjoys the combination offieldwork and water resource planning inhis job.

Antonio Trujillo owns and manages afarm and vineyard in the village of SanFidel, N.M. President of the San José deLa Cienega Acequia Water Association andvice-chair of the Association of CommunityDitches of the Rio San José in CibolaCounty, Trujillo is also a board member ofthe Acoma Boys and Girls Club. Antoniowas a Franciscan priest for ten years,serving as pastor for both Acoma andLaguna Pueblos.

Anne Watkins was appointed specialassistant to the N.M. State Engineer byGovernor Richardson in 2003. She directsthe N.M. Drought Task Force, serves aslegislative liaison, and coordinates waterproject funding and water-developmentplanning as well as interagencycollaboration on drinking water, waterquality, and watershed issues for the State Engineer. She was previouslyAlbuquerque’s transit director.

35

Anne Watkins

Glenn Tenorio

Michael Nelson

Tom Kinney

Conference Staff and VolunteersConference planners felt that the breakout groups’ decision of how to runthemselves would in itself be a communitybuilding experience, so the breakoutgroups were not facilitated. However, each group was assigned a “coach,” a professional with experience in cross-cultural group work who was available toreflect back to the group on their processand to help with the interpretation of thehypothetical. All coaches were trained bythe facilitation team, Roberto Chené andLucy Moore. Each group was also assigneda recorder. Most recorders were lawstudents; Michele Minnis, the assistantdirector of UNM’s Water ResourcesProgram, also took a role of recorder. Theefforts of these volunteers are muchappreciated.

Facilitation Team and CoachesRoberto Chené has deep roots andextensive experience in social justice workwithin the Chicano-Latino community.Roberto has himself organized and beenpart of various multicultural coalitions. Heis currently consulting and training withseveral organizations committed to becomemore culturally competent and inclusive.He is a former co-chair of the NationalConference on Peacemaking and ConflictResolution.

Lucy Moore is a mediator, facilitator andtrainer specializing in natural resourceissues, who has worked with federal, state,local and tribal governments as well aspublic and private interests on endangeredspecies, hazardous waste, water rights, airand water quality, forest planning, andschool policies and regulations. Lucy isthe author of Into the Canyon: Seven

Years in Chinle, Arizona, a memoir of her time in Navajo country from 1968-1975.

Chris Garcia was co-founder with LucyMoore of the New Mexico Water Dialogue.She has edited its newsletter, Dialogue aswell as the State Engineer’s WaterLine

and is presently editor of theConservation Current. She was amember of the planning team for the UttonCenter’s first Interstate Waters conference,and co-edited the proceedings for thatconference with Michele Minnis. She isalso editor for these proceedings.

Sharon Hausam is the economicdevelopment planner for Sandia Pueblo.She was the first executive director of theNew Mexico Water Dialogue and hasworked on the water plans for NorthwestNew Mexico and the City of Grants. Herdissertation topic in the University ofWisconsin Urban and Regional Planningdoctoral program is “Native American andnon-Native Interactions in PlanningProcesses.”

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Sharon Hausam

Chris & Albert Garcia

Lucy Moore

Roberto Chené

Nicasio Romero is the current mayordomo of the El Ancón AcequiaAssociation, and a past president of theNew Mexico Acequia Association and theHealth Centers of Northern New Mexico.He is a past board member of the NewMexico Water Dialogue, the New MexicoAcequia Commission, the Governor’sWater Task Force and the New MexicoCommunity Foundation.

Blane Sanchez is the first pueblo/tribalmember of the New Mexico InterstateStream Commission. He has coordinatedthe Southern Pueblos Council WaterResources Technical Advisory Group andserved as water quality officer for SandiaPueblo and as director of the All IndianPueblo Council Office of EnvironmentalProtection. He lives on the Isleta reservation as a tribal member and hasfamily connections with Acoma Pueblo as well.

Stephen Snyder is an attorney, mediator and policy-development consultant specializing in complex naturalresources litigation. He is the specialmaster for the Pecos and Lower RioGrande Water Rights Adjudications. He has done training of judges, specialmasters, and stakeholders on mediationand complex case managementthroughout the western United States.

37

Recorders:

Nicasio Romero

Stephen Snyder

Kathryn Benz, UNM School of Law(photo middle left)

Paul Bossert, UNM School of Law(pictured standing above)

Darcie Johnson, UNM School of Law

Geoff Klise, UNM Water Resources Program

Marcos Martinez, UNM School of Law

Michele Minnis, AssistantDirector, UNM Water Resources Program(pictured far left)

Jeanine McGann, UNM Water Resources Program

Tom Ringham, UNM School of Law

Rachel Winston, UNM School of Law(pictured above at computer)

38

Stills from the video, Voices of

the Jemez River, produced forthe conference by Mary Lance(New Deal Films, Inc.),executive producer andcameraman Tom Zannes, andDale Kruzic, editor. They retainthe copyright to the film andmay develop it into a full-lengthdocumentary suitable fortelevision. VHS or DVD copiesare available for $30 bycontacting Dale Kruzic atdale@thunderprod.com or TomZannes at tzannes@efcrew.com.

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Hilary Tompkins is Governor BillRichardson's deputy legal counsel.Tompkins began her law career asan honor program trial attorney forthe U.S. Department of Justice inenvironmental enforcement, andlater served as a special assistantU.S. Attorney for the EasternDistrict of New York, where shewas lead counsel for a number ofcivil lawsuits in federal courts. Herprivate practice focused onrepresenting pueblos and tribes asa general counsel.

A Community Agreement

Voices of the Jemez River

Hilary Tompkins, moderator

The opening panel of the conferencebrings together four of the majorplayers in the Stipulation Agreement

reached in 1996 as part of the ongoingfederal adjudication of the waters of theRio Jemez. These players include: JohnD’Antonio, the present State Engineer, whowas the Albuquerque District Engineer atthe time of the agreement; Peter Pino,Governor of the Pueblo of Zia; PaulChinana, Governor of the Pueblo of Jemez;and Gilbert Sandoval, who represented the“Jemez River Water Users,” a coalition ofacequia irrigators which includes: JemezSprings Ditch Association; NacimientoDitch Association; San Ysidro CommunityDitch Association; CanonDitch Association; and thePonderosa DitchAssociation.

The Jemez River Adjudication ispresently taking place in federal courtunder the title United States v.

Abouselman (No. 83cv01041-JEC). For the history of theadjudication, the StipulationAgreement, and details on thehydrology of the region, see The

Rio Jemez Background Papers

on the Adjudication and Water

Rights Issues at http://utton center.unm.edu/pdfs/Rio_Jemez_Background_Papers.pdf/

The Stipulation AgreementAs a living document, the agreementcontrols the annual, seasonal, and daily useof surface waters of the Rio Jemez for

Ponderosa

Santa Ana Pueblo

SANTA ANA

JEMEZ

JEMEZ

JEMEZZIAZIA

ZIA

Jemez Rive

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Redondo

Creek

Rio

Salado

Rio Grande

San

Antonio Creek

Rio

Gua

dal

upe

Rio

dela

s

Jemez River

Sulp

hurCreek

0 2 4 8 12 mile

JemezRiverWatershed

NEWMexico

San Ysidro ZiaPueblo

JemezSprings

RioRancho

Vac

as

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The New Deal Films team and afan: Mary Lance,Tom Zannes, N.M.Senator DedeFeldman, and Dale Kruzic

irrigation purposes. It is a temporarysettlement, pending a final decision inAbouselman, but it contains the expressedintention that it “may become part of alarger settlement of all issues.” Anegotiating body of the parties is presentlyworking towards this end.

What the Agreement ProvidesThe agreement asks for a neutral watermaster to see that its terms are compliedwith and the Office of the State Engineerhas assigned a staff person to this job. Itprovides that all parties will agree to a“starting rotation schedule,” based onwater-supply projections drawn from snow-pack and other observations, at a meetingin the early spring. Under the agreement,either Jemez or Zia Pueblos, who have thesenior rights among the parties to theagreement, can ask that this rotation bemodified at any time, in response to awater shortage. Any increase in irrigationdays for non-pueblo water users requiresapproval of both pueblos. The ditchassociations and their members agree notto withdraw any ground water for irrigationexcept in accordance with the agreement’srotation schedule. Domestic (household)uses are not limited under the agreement.Adherence to the agreement is a duty ofhonor, though there are legal remedies tofailure to comply. In fact, compliance ismaintained by social pressure and periodicwatermaster inspections.

Voices of the Jemez River The Utton Center worked with filmmakersto create a video for the conference aboutthe 1996 agreement and about the droughtsituation in the Jemez watershed that ledup to it. The video beautifully tells the storyof how the Pueblos and the non-Indian irrigators were able to reach an agreementto share river waters in times of drought. It also addresses the potential impacts ofurban growth on the Jemez Valley. Thevideo was shown at the conferenceimmediately preceding the Jemez Panel.

The Utton Center would like toacknowledge the contribution of those whowere featured in the video and who helpedin the background, especially: StateEngineer, John D'Antonio; Michael Garciaof the San Ysidro Community DitchAssociation; Gilbert Sandoval, acequia

mayordomo at Jemez Springs; GovernorPeter Pino, Zia Pueblo; Governor PaulChinana, Jemez Pueblo; Jim Owen, Mayorof Rio Rancho; Spenser Shaw, Office of theState Engineer; Governor Leonard Armijo,Santa Ana Pueblo; Bill deBuys of the VallesCaldera; Emmett Cart of Jemez Springs;and Pete Balleau, hydrogeologist.

John D’Antonio was appointedState Engineer by New MexicoGovernor Bill Richardson in January2003. John was the district engi-neer of the Albuquerque Districtduring the time the Rio JemezAgreement was negotiated, afterwhich he served as chief of theWater Rights Division of the Officeof the State Engineer. Before hisappointment as State Engineer,John was Cabinet Secretary of theNew Mexico Environment Depart-ment.

John D’Antonio, N.M. State Engineer

41

My involvement in this agreementcame when I was approached bythe participants collectively about

the State providing a water master. Theparties voluntarily accepted a watermaster, even without a specific court order,which is an unusual outcome. Theseneighbors worked together and understoodhow to share the water in times ofshortage. They put together severaloptions on a rotation schedule.

All the pueblo governors went to Washing-ton to visit New Mexico’s congressional delegations, seeking additional funding todo additional hydrologic work and developinformation—groundwater studies, surface-water studies. They were all onthe same page, going to congressionaloffices looking for support and thenecessary resources. Because there wasagreement about what was needed, it waseasy to get approval.

William Toribio, the former governor of Zia,was with this group. He passed away lastDecember. It was wonderful to work withGovernor Toribio. The group had a verypositive experience.

We could have a multi-year droughtbefore us. We’re going to have tomanage our river systems. Whenan agreement is possible insteadof the State going in andadministering priorities, theagreement outcome has got tobe preferable. We’ve done it onthe San Juan, we go back everyyear, and it’s worked well. At thesame time, not all parties areprepared to share in this manner.Acequias and tribes are typically thesenior water users on the system, andwhen there is the basis for workingtogether to put some practical solutions inplace, it makes my job a lot easier. Thanks!

It feels good to see a concept come toreality. This video has been in themaking for a long time, and I’ve looked

forward to seeing the final product. Thevideo didn’t show that sometimes it was

the attorneys who were the obstacle toour reaching agreement. We had tothrow out some of those attorneysto have meaningful dialogue. Mymessage to the many attorneys hereis “You have to listen to your clientssometimes.” We don’t have a crystalball, we’re not all-knowing, but we

have lived with the situation.

Based on the agreement, we have beenable to call on the water from the Jemez

River. The sharing we’re doing on theJemez gives six days to the Indians andone day for the non-Indians. I wouldn’thave thought that was possible. But weappreciate that. We’re able to putharvested food on our tables for ourfamilies.

Our forefathers taught us not to depend onthe grocery store’s delivery truck.“Provide for your families,” they said. Howmany of you can provide for your familiesif the grocery truck doesn’t come? Howmany of you can catch small game and biggame and put them on the table for yourfamilies, so that you can survive? Ourforefathers taught us “Stay who you are.Don’t become acculturated until you’re likethe mainstream.”

The day we reached the agreement, wewere before Judge Vickie Gabin and weasked one attorney after another torequest a recess, and they wouldn’t. ButGilbert Sandoval and I are country boysand we didn’t know what was right orwrong as far as court procedures wereconcerned. Gilbert went up to his attorney

while he was addressing the judge so thathe could ask for a five-minute recess. Thejudge gave us fifteen minutes, and we tookthirty. We sent runners to bring back themayordomos who were already leaving theparking lot. At the end of the recess wehad an agreement and the judge smiledand thanked us for resolving the issueamong ourselves.

When I went to college I was a shyreservation Indian. I felt at a disadvantage.Today I feel the others are at adisadvantage because they never got togrow up in their homeland and be taughtby their elders what is important in life.Our elders told us “You will learn becauseyou will have teachers.” We are fortunatethat the teachers were there. I want to tellthe lawyers that you need to listen to yourclients. Sometimes they will be yourteachers.

For many years New Mexico used poisonin the stream system to kill off the fish. Ifthe kill wasn’t 100% they went back anddid it a second or a third time. Who gaveus the right as human beings to make thisdecision on who lives and who dies? I toldthe Game and Fish officers “I like whatyou’re doing here—you’re eliminating allthe foreign fish in the stream system, andputting back the natives. Maybe we shoulddo that in America—eliminate all theforeign people here, and put back thenatives?” He didn’t think that was such agood idea. If it won’t work with people, itprobably won’t work with fish.

We have the opportunity to learn differentways to get out of our ruts. It’s going totake more than one of us to figure out thesolutions. Law is but one tool. There areother tools: relationships, community, andcommunication.

Governor Peter Pino of Zia Pueblo

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Peter Pino served as Governor ofthe Pueblo of Zia at the time of thisconference. He is a board memberof Education Fund, Inc., a sub-sidiary of the Council of EnergyResource Tribes, and a board mem-ber of Mesa Verde Foundation, aswell as a member of the NewMexico Game and Fish Commis-sion. Governor Pino is a graduateof New Mexico Highlands Univer-sity and received an MBA from theUniversity of New Mexico in 1975.

Good afternoon. We are talkingabout something everyone has abasic need for—water. That’s why

we’re all here now and will be here for thenext two days. I want to talk about thePueblo of Jemez and the Rio Jemez, whichstarts at the Valle Caldera, and flowsthrough Jemez Springs, San Isidro, Zia andSanta Ana. If there’s any left, the waterwill flow into the Rio Grande.

The drought years have gotten us to aplace where we need to work together, toshare the water. As far as Jemez, Zia andSanta Ana are concerned, we have beencommunicating with each other and withGilbert Sandoval who represents thecommunities of Jemez Springs and SanIsidro. Communication is the key. Wehave started rotation systems, and asGovernor Pino mentioned, non-Indiansonly have one day to use the water. Westill have little problems. Jemez gets touse the water six days of the week. We’vetalked about how to keep everyone happy,and we’ve talked with the non-Indianwater users and they’ve picked out the daywhen they can use the water. The issuesthat come up about sharing the water,resolving the disagreements we have, canbe worked out by communication. Weneed to learn how to communicate.

We have a good model with the Rio Jemezin United States v. Abouselman (1983).We’ve been working together over theyears. Back in 1992 all the partiesmade a trip to Washington to meetwith the congressional delegates forfederal funding. We were blessedwith success. They gave us somefunding to do technical studiesfor each community that isrepresented on this panel thisafternoon, and since then we’vebeen doing the technical studies.

Communication is the key. We’veworked together; we’ve beensuccessful in talking with the federaljudges in Santa Fe to negotiate oursettlement, and we are stillcommunicating. The pueblos’ represen-tatives have all agreed we should go forthe negotiated settlement instead ofhaving a ruling by the judge. I am proudto say I have been working with the non-Indian communities and with the Pueblo ofZia and Pueblo of Santa Ana. Thank youfor the opportunity to speak to you all.

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Paul Chinana, Governor of JemezPueblo, also served as Governor ofJemez during 1983 and 1995 andas 2nd Lieutenant Governor in1977. He worked at Los AlamosNational Laboratories for 28 years,and is now retired. GovernorChinana is a member of the JemezTribal Water Negotiating team.

Governor Chinana of Jemez Pueblo

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By now you are pretty familiar withwhy this agreement came about,how it was hammered out with

lawyers. We live in the Jemez Valley; ourlawyers don’t. I had a lawyer joke, but

there are so many of you here that I amafraid for my life.

I am more relaxed since we reachedthis agreement. I can relate to myneighbors without reservation.When the adjudication came aboutwe saw the lawsuit as an actionagainst us and that created an

animosity with our neighbors. JamesPino, Peter’s father, used to be a Zia

member of our joint fire suppressioncrew. My responsibility was to look out forfirefighters’ welfare, to get them fed, keepthem safe. They were my neighbors, mypeople. I lived with them, I understoodtheir culture, I understood their needs.When this issue came up that caused thedivision in our amity, it was hard to take.

The acequia parties decided to form acoalition to raise money, and the money topay our lawyers came directly out of ourpockets. Because of the misery of thedrought in ‘96, we were ordered to closeour ditch to serve the senior water rightsof our tribal neighbors. We were lost. Notjust Jemez Springs, but all the acequias

on the Rio Jemez. Rather than turning toour attorneys to fight the temporaryrestraining order that bound us, we tookthe opportunity to talk with our neighbors.At the end of the day, we went to see thedelivery systems on the reservations.

What happened there is one of the pillarsof the four cornerstones on which I basemy service to my people—understanding.I had never dreamed that the Jemez Riverwould be dry. It was dry from thecommunity of Cañon, south. We went toJemez Pueblo, and there was no waterthere. The river was dry. At the PecosDitch diversion there was no water todivert. Dry. San Isidro—dry, no water. AtZia there was a trickle of water runningdown. I realized we no longer could divertwater without realizing that peopledownstream had no water.

Then we hammered out the agreementand it was accepted by the judge. If wehave near-average snowfall, we don’t haveto implement the rotation, we all havewater. Water is so precious; people arewilling to fight for it. They hold meaccountable for my decisions. So when Iexplain the situation to my people, I tellthem about the four cornerstones of myfoundation for making the best decisionsfor the people I represent whilemaintaining amity, neighbor-to-neighbor.

The first is that we must go into thenegotiation with sincerity. We have tohave understanding, be intimatelyinvolved with the problems of others, andappreciate the bitter pill they have had toswallow. Then we need determination;

we have to be determined to follow thisthrough. Finally we have to have commitment.

John D’Antonio didn’t tell you all that wasinvolved in our trip to Washington. It wasa fruitful trip, mainly because we showed

Gilbert Sandoval of Jemez Springs acequias

Gilbert Sandoval was born andraised in Jemez Springs. A fifthgeneration New Mexican, he livestoday in the same homesteadgranted to his grandmother and herfamily by Spain. Mr. Sandoval hasbeen chairman of the Jemez RiverBasin Water Users Coalition since1983. Professionally, he hasworked with the Santa Fe NationalForest for 35 years. As avolunteer, he has served the JemezSprings Fire Department for 25years, been emergency medicalcoordinator for 15 years, andcoordinated the search and rescueteam for 10 years.

unity. We of the acequias didn’t take ourlawyers; the Pueblos did take their lawyers.When we got to Senator Domenici’s office, Iwas one Mexican, with a bunch of Indiansand some gringo lawyers. The Senator said“Didn’t you bring your counsel?” I answered“No, I left my wife at home.” He said, “Imean your attorney.” “No,” I said, “Icouldn’t afford to.” And I decided if therewas trouble I couldn’t deal with, myattorney couldn’t either.

Soon I’m growing old. I’ll have to go homeand do the honeydew jobs. When we handit over and let the lawyers and judges dotheir bit, I hope they recognize that together

we have the courage and integrity tomanage our resource, that we can share it,that we can defend it against urbanizationand non-management. If we let those thingsgo to waste, we will see the disastrous firestake over and destroy our resource, destroyour watershed’s capability of producing ourgreatest resource—our water. The secondthing we’ll lose is the companionship ofpeople, their confidence and dependence.

Thank you.

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Discussion

Leadership and

communication

John D’Antonio: What makes this workbetter in Jemez than it might work in otherplaces is that Gilbert Sandoval has influenceand respect in the sixteen acequias that areinvolved on the non-Indian side. It’s veryunusual for one person to influence thatmany water users. In the Navajo Nationsettlement, with a great variety of waterusers on either side, reaching agreement isvery challenging.

Governor Chinana: We look at how ourgrandfathers worked it out in the sameplace on the same system. Sometimes theacequias call my office and ask me “It’s anoff-day for the non-Indians, but we needsome water. Can we have some water?” Ifwe don’t need the water that day, we’ll lookthe other way. Then they cross over ourboundaries, they open the gates and theytake the water. If we don’t need it, then

they use it. It’s a gentleman’s agreement.We don’t outright talk about it, but we turnthe other way when the neighbors needwater. So long as they let us know, it’ssomething that we can do.

Effect of introducing

urban demand

I was interested in the statements on the

video by the mayor of Rio Rancho. How

will that shortage-sharing agreement

hold up under pressure to send water to

Rio Rancho?

There is such a proposal—to fallow 120acres in San Ysidro to offset Rio Rancho’spumping. Letting 120 acres lay fallowmakes a difference in a number of ways.That owner will not be contributing to thework of irrigation, and it decreases recharge

as well. The biggest future factor is thatparties may give water away—well, theywon’t give anything away, it’s a million-dollar deal—but they may reallocate thewater from those 120 acres, which will besubdivided for domestic use.

How would the actual transfer affect the

shortage sharing agreement?

John D’Antonio: It’s not clear, but theState Engineer will look at impairment. Allthat could be transferred off the landwould be consumptive use of water. If thetransfer is appropriately limited toconsumptive use, there would be noimpact on the shortage-sharing agreement.

Instream water rights

New Mexico does not have instream

water rights. Are there actions in

process to bring about instream water

rights?

John D’Antonio: Though we don’t haveinstream water rights, there is an AttorneyGeneral Opinion that instream rights areconsistent with our system. We have beenable to require federal agencies to lease orpurchase water for a given year to offsetthe impact of federally-imposed minimuminstream flows on the system, particularlythe impacts on our compact deliveries.Essentially, we have established aninstream-flow use by allowing thegovernment entity to lease water toprovide minimum flows.

It is the position of New Mexico that whenthere is a direct clash between endangeredspecies requirements and the Rio Grandeor Pecos River Compact obligations, theendangered species has to share in theshortage also. The Biological Opinion onRio Grande water operations has allowed

some drying in recognition of that principlethat shortage must be shared. Over 8,000minnows have been salvaged from thosedried areas and propagated in captivity.

Spiritual dimensions of water

Governor Pino: We can’t make rain.Powers beyond us do that. We believe thatif you pray for water and pray for rain, itwill come. The communities in the RioJemez and Rio Puerco drainages pulled outof the Middle Rio Grande regional waterplan so that we could do our own planning.We especially wanted to say that we givewater spiritual and cultural importance.Every time we go out on field visits to talkabout water, it rains on us. This makes usfeel we’re doing the right thing and we’rerewarded by the spirit world. Prayers areimportant – it seems the more educationand money we get the less religious webecome.

As Zias, we believe that power is inprayers. When you go to Acoma all thosedancers are dancing for rain—the hope isthat dance will be rewarded by rain. You,too, need to do this in your own ways,however you feel that’s appropriate. We allneed the blessing of one another’sprayers—it doesn’t take money, it’s free—we can all do it. Water does not belong toanybody. Land does not belong toanybody. I am hoping you can share yourprayers with the spirit world so we all canshare the blessings.

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47

Living in Community

Examples of SuccessfulWater AllocationCollaborationsPeter Sly, moderator

In several conference calls and e-mailexchanges prior to the conferencemembers of the panel decided to lead

off by describing their work, their personalhistories, and the ways in which theircurrent efforts have yielded success, andto go on to discuss how we measuresuccess, what issues can be successfullyaddressed, and how to sustain thesettlement in implementation.

Sly introduced himself by saying that hehas represented states, the Conference ofWestern Attorneys General, cities,ranchers and environmental groups; he hasnever represented a tribe, though not bychoice. Identifying one type of “success,”Peter described the “7/10 process” on theColorado River Basin, which brought apartnership of ten major tribes intonegotiation with the seven states in thebasin. “Success” in this case was toestablish the negotiation process. Slyrepresented Nevada cities with an urgentgrowing need for an assured municipalwater supply. Nevada successfully begandiscussion of potential off-reservationwater leases with the tribal partnership.While this process has yet to lead to watertransfers, the “success” of this effort was

to create a new process forsubstantive discussions betweenColorado Basin tribes and states.

Peter also described a processthat was not successful. Herepresented non-Indian ranchersin an effort to negotiate asettlement for water use and theadministration of rights among theIndian and non-Indian irrigators onthe Flathead Reservation of theConfederated Salish and KootenaiTribes in Montana. A series of lawsuitshad created an interest in reaching anegotiated settlement, but the negotiationcould not get beyond the fights over tribaljurisdiction and control over non-memberwater use. It became a battle over turf andcontrol, and was derailed.

Peter concluded “I have thought a gooddeal about how we measure success.Perhaps I would look at whether thegrandchildren of all the people involved(not just those I identify with) will thinkwe’ve done a good thing. When I hearsuccess stories they often aren’t aboutmoney or even water. They’re aboutpeople.”

Peter Sly was an importantcontributor to the planning of thisconference in addition to moder-ating this panel of participants insuccessful negotiations. As directorof the Conference of WesternAttorneys General, he wrote theReserved Water Rights SettlementManual. Sly recently moved hispractice from California to Maineand is also teaching college courseson Indian and natural resources lawat Colby and College of theAtlantic.

48

After decades of lawsuits,negotiations, and administrativeactions, the Truckee River

Water Quality Agreement was signedin 1996, settling some important issuesrelated to quantity and quality on theTruckee River and Pyramid Lakewhich are home to theendangered cui-ui and thethreatened Lahontan cutthroattrout. Under the agreement thePyramid Lake Paiute Indian Tribedropped its lawsuits regarding the Reno andSparks wastewater treatment plants. Inturn, the cities and the U.S. Department ofthe Interior agreed to spend $24 millionover five years to purchase Truckee Riverwater rights, with the cost shared by thecities, Washoe County, and the Departmentof Interior. The 24,000 acre feet of waterexpected from these purchases will bestored in upstream reservoirs and releasedduring low-flow periods to dilute treatedeffluent discharges from the treatment plantand to provide more water for PyramidLake, a closed system into which theTruckee River flows. The Pyramid LakePaiute Tribe manages the lake and 25 milesof the Truckee River.

Through this agreement, Jackson said, thetribe has moved from seeing Truckeeirrigators and the other upstream waterusers, including municipalities, asopponents to seeing them as partners inprotecting the Truckee River. Litigation toimprove water quality for the Lahontancutthroat trout has been pending since1984. It’s expensive to litigate, andoutcomes are uncertain. The Departmentof Interior and the cities each put up $12million to buy water from the NewlandsProject which supplies Churchill Countyirrigators. They determine irrigation needs

for the year, and the Bureau determineshow much water will be taken from theCarson River for that demand. Water rightsfrom the Truckee are purchased during the summer months when needed.The 4,500 acre-feet of water was boughtfrom willing sellers in Newlands and dedicated to the Lower Truckee Riverthrough the Nevada State Engineer office.

For John, success is measured in the attitude of tribal membership. There isflow in the Truckee River right through thePyramid Lake reservation. People who livealong the Truckee River see it every day. Ifthe river has good quantity and quality, ifthere’s a good canopy, they see that andthey think the tribe has been successful,and so does John.

John Jackson, Vice Chairman Pyramid Lake Paiute Tribe

Truckee River Water Quality Agreement

John Jackson works with the waterissues of the Pyramid Lake PaiuteTribe and serves as liaison withfederal agencies, the state, andprivate water interests. He gradu-ated from the University of Nevadaat Reno. For five years John directedthe Los Angeles Indian Center. Hethen managed a tribal enterprise forfive years and served for five yearsas tribal planner. He has presentlyserved eight years as the director ofwater resources for the Pyramid LakePaiutes. He is also a tribal council-man.

Las Vegas

NEVADACarson City

Walker RiverReservation

Moapa RiverReservation

Pyramid Lake Paiute Reservation Duck Valley

Reservation

PyramidLake

WinnemuccaLake (dry)

LakeTahoe

Reno

LakeMead

.ReekcurT

Walk

erR.

Humboldt River

GoshuteReservation

Color

ado R.

Susan Cottingham opened with a briefhostory of Montana’s CompactCommission. The nine-member

Commission was created 25 years ago bythe legislature, when it was very uncertainwhether reserved water rights would belitigated in state or federal courts.Montana hoped to negotiate rather thanlitigate. The process began naïvely. TheCommission was originally created forthree years and told to “Go forth andsettle.” But settlement was much morecomplex than that. The availability of goodtechnical support from legal and politicalexperts, hydrologists, and agriculturalscientists who understand the informationneeded for tribal allocations has helped agood deal. The most important part of thenegotiations is practical: How will we livein the same watershed? Do we need todevelop new supplies?

Montana is somewhat unique becausenegotiations have been sovereign-to-sovereign between the state,the United States, and thetribes; other settlementsoften have multipleparties at the table. Thetribes find the government-to-government structureimportant in the discussions; itelevates the negotiation, so theTribes are not just another player atthe table. The Commission’s process isopen, with several hundred peoplepresent as well as television cameras,involving the public early on in theprocess. By the time an agreement getsto the first step—the Montana StateLegislature’s approval—there’s been a lot

of interaction. There is demand for theinclusion of other stakeholders. Non-Indian irrigators at Flathead, for instance,have gone to the legislature twice to get aseat at the table; but the legislature hasn’topened the process to non-sovereigns.

Susan noted that while there are someconcrete measures of success innegotiation—“We got ‘this’ through thelegislature; we avoided litigation; we got‘that’ much money”—the negotiation isreally a means to an end. The end isbetter dialogue between the Indian nationsand their white neighbors; to come out of ahostile situation with people who areworking together. The work of culturalunderstanding and education, she said, isthe most demanding as well as the mostrewarding.

49

Susan Cottingham, Staff Director

Montana Reserved Water RightsCompact Commission

Susan Cottingham has been staffdirector of the Commission since1991. The Commission’s nine-member staff develops legal andtechnical background for the com-plex Indian water rights settlementsand compacts for federal reservedwater rights held by the NationalPark Service, Bureau of LandManagement and the U.S. Fish andWildlife Service. She is a member ofthe Ad Hoc Group on Indian WaterSettlements, a national coalition.

FlatheadReservation

Fort PeckReservation

Fort BelnapReservation

NorthernCheyenne

Reservation

Rocky Boy'sReservation

CrowReservation

MONTANA reviRenotswolleY

reviRiruossiM

reviRkliMreviRkliM

.Rda

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BlackfeetReservation

Jeanette came into the 1990 Fort HallWater Rights Agreement when it wasstill in negotiation, near finalization.

The tribal governing body was concernedthat the tribal membership did notunderstand and would not approve theagreement. Her task was to help finalizethe agreement by educating thecommunity about the importance of thewater agreement so that it would beapproved. The agreement was approvedby the tribes and enacted by Congress onJuly 18, 1990.

Fort Hall was originally 1,800,000 acres, amuch larger reservation. Land was cededover time, bringing the reservation to itspresent 544,000 acres, 96% of which istrust land. The agreement provides for581,000 acre feet of water for the Fort HallReservation, delivered from varioussources including natural flows from theSnake, Blackfoot and Portneuf Rivers,federal storage contract water such asPalisades Reservoir, the Blackfoot andAmerican Falls Reservoirs, and groundwater. Later in the season, the tribe mayuse storage. It has ground water andinstream flow rights. The agreementprovides for water leasing, sets out waterbank rules, and other uses for water on theReservation. Idaho has a water bank and

water bank rules. The tribes negotiatedthe right to have their own water bank

and rules to allocatesurplus water forleasing purposes.The tribes wereapproached bymany off-reservationentities,particularlyfederal entities.Reclamation

leases 3,000 acre feet a year, particularlywhen they need to augment flows forspecies of fish listed under the ESA. Thetribes have also had leases for irrigation.

In the Idaho negotiations it was importantto be very open and candid in discussionsand negotiations. Once you reach a levelof comfort where you can be candid, youcan move forward. The tribe saw thenegotiations as informal as well as formal—formal with the lights and cameras,informal in a restaurant over food.Partnership building was important.

Some of the provisions of the agreementwere very creative. Since that time otheragreements have gone forward with similarprovisions. The Fort Peck and Shoshone-Bannock agreements were made, and thenthere was a long time when no agreementswere negotiated. Currently, there aresome new agreements before Congress.The Fort Hall Agreement specificallyincluded funding for implementation. Thiswas correctly considered an essentialelement for success.

Jeanette would measure success, she said,in a way very similar to John Jackson’s.The Shoshone-Bannock Tribes chose FortHall because of its water. They had forthousands of years camped in this area inthe summer and fall, and were very awareof water there. Success for this agreementis community acceptance, which requiresthat community members feel satisfiedthat what was negotiated in the FortBridger Treaty of 1868 reserving thehomeland is still being met today and thatthere is a guaranteed plentiful supply ofwater for present and future communityneeds, from spiritual needs to irrigation forthe tribal membership.

Boise

Nez PerceReservation

Coeur D'AleneReservation

Fort HallReservation

reviRekanS

reviRekanS

reviRnomlaS

American FallsReservoir

Pendd'Oreille

Lake

reviRetteyaP

rev

iRraeB

IDAHO

50

Jeanette Wolfley, Shoshone-Bannock tribal member and legal counsel

Fort Hall Water Rights Agreement

Jeanette Wolfley was an attorneywith the Native American RightsFund when she was asked to returnhome and help finalize the 1990water agreement between Idahoand the U.S. in the Snake RiverAdjudication. She has served asgeneral counsel for the Shoshone-Bannock Tribes and continues torepresent them as special counsel onwater rights and other naturalresource matters. She is an adjunctassociate professor at Idaho StateUniversity in the Indian StudiesProgram.

Penobscot Partners includes thePenobscot Indian Nation, AtlanticSalmon Federation, American Rivers,

the Natural Resources Council of Maine,Maine Audubon, and Trout Unlimited. Itsobjective is to restore a free-flowingcharacter to the lower Penobscot River byremoving two dams and decommissioninganother.

While the project is legal in nature, Lauraobserves that most issues concernrelationships rather than law. Early in hercareer she became interested in finding waysto integrate laws which apply to particularenvironmental resources—land, water, air—to get amelioration. She uses a “multimediaapproach,” looking at all statutes that applyto a compliance issue.

This conference has reinforced her previousfeelings that though the eastern and westernstates have very different systems, we look atvery similar issues; issues which have muchmore to do with communities and relation-ships than with water law and statutes.

The flow of the Penobscot River is about 13million af/year. (To appreciate the scale,recall that the flow of the Colorado is about15 million af/year.) It drains 8,750 squaremiles, or 1/3 of Maine. It is also the spawn-ing ground for the Atlantic salmon, andhabitat for shad, alewife, blueback herring,American eel, short-nosed sturgeon, rainbowsmelt, striped bass and tomcod. But accessto the spawning grounds and habitat forthese sea-run fish has been progressivelyrestricted by hydropower dams, with corres-ponding declines in fish populations as wellas frequent contamination incidents. ThePenobscot Indian Nation has been unable toexercise its treaty rights to fish for the past100 years. The fish in the impoundmentsbehind the dams are contaminated, and inany case, can’t reach the reservation.

A large-scale multiparty agreement wasreached in October 2003 and filed in thesummer of 2004, providing for the purchaseof the three dams from PPL Corporation,which will also have the right to increase itsenergy output at other hydroelectric projectsin Maine. It will significantly improve accessto over 500 miles of river habitat, allowingfor recovery of native varieties of sea-runfish. It will also strengthen the river’secological connection with the ocean,helping feed fisheries and wildlife in the riverand the Gulf of Maine.

Like other panelists, Laura had dualmeasures of success. “On theconcrete side, when the damsare gone, that’s a success.But ultimately successwould be if thegrandchildren of thePenobscot and theirneighbors have adifferentrelationship tothe river.”

MAINEHowland Dam

dam purchasedecommission

innovative fish bypass

Milford Damnew upstream passage

increased power

Great Works Damdam purchase

removal

Veazie Damdam purchase

removal

West Enfield Damexisting fish passage

increased power

Little or no commercial, recreational, or tribal sustenance fisheries

Limited passage of shad, alewife, blueback herring, striped bass, sturgeon, smelt, tomcad and eel.

Improved AccessThrough Agreement

Fishery Access Problems

Penobscot River Watershed

Peno

bsco

t Riv

er

Mattaw

amkeag R

East BranchPenobscot R .

Piscataquis River

Diminished upstream salmon and eel spawning

51

Laura Rose Day, Director of the Penobscot Partners

Penobscot Partners

Laura Rose Day is trained in wildlifeecology and environmental andenergy law. She began her careerwith EPA in Chicago, working withindustrial communities on environ-mental equity issues involving steelmills and paint factories. Laura hasalso served as manager of theNational Wildlife Federation’s LakeSuperior and Biodiversity Project,and as water-shed project director forthe Natural Resources Council ofMaine.

52

53

Judge Valentine prefaced the Judges’panel with a round of disclaimers,noting that every state has a code of

judicial conduct. New Mexico’s code, forexample, states:

“ A judge shall not, while a proceeding ispending or impending in any court,make any public comment that mightreasonably be expected to affect itsoutcome or impair its fairness or makeany nonpublic comment that mightsubstantially interfere with a fair trial orhearing. … This … does not prohibitjudges from making public statements inthe course of their official duties or fromexplaining for public information theprocedures of the court.”

N.M. Code of Judicial Conduct, 21-001-B-10.

In keeping with that code, he urged thatwe be aware that nothing said here speaksto what any judge might decide in a casepresently before him.

He opened the panel with a trio of quoteswhich spanned a significant slice of judicialhistory. The first was from the Eumenides

written by Aeschelyus in 458 AD. Athenapacifies the vengeful Furies who seekrevenge outside of justice for the violationof law, urging them to accept “Fair trial,fair judgement,” and to “Calm this blackand swelling wrath.”

The second was from an articlefound that morning, in theSeptember 1st USA Today

regarding the Kobe Bryant case.The editorial writer urged thatthe “judge should havecompelled the victim to testify,”and that “victims have theresponsibility to testify.”

Judge Valentine calls on Athena’sposition in the Eumenides asrepresenting the courts as a forum forresolving conflicts without vengeance andwithout violence. The court cannot serveas prosecutor, as the enraged writer on theKobe Bryant case would wish it to be. Thecourt’s role is to provide access to justice,as set out in his third quote from the 3rdJudicial District’s 2004 strategic plan,which opens with the mission statement:

“ The mission of the New MexicoJudiciary is to provide access to justice;resolve disputes justly and timely; andmaintain accurate records of legalproceedings that affect rights and legalstatus in order to independently protectthe rights and liberties guaranteed bythe constitution of New Mexico and theUnited States.”

The Legal Community

Why Judges Decide the Way They DoJudge Jerald Valentine, moderator

Judge Jerald Valentine moderatedthe conference’s final panel, whichbrought judges and other officers ofthe court together to look at howwater cases are decided. Born andraised in Clovis, Judge Valentinereceived a B.S. in MechanicalEngineering from NMSU and a J.D.degree from the University ofTexas. After over twenty years inprivate practice, Judge Valentinewas appointed, and later elected,district judge for the Third JudicialDistrict of the State of New Mexico.In addition to trial work, he focuseson developing ways to streamlinethe court system and improve itsefficiency; he is presently develop-ing education materials for NewMexico’s new water law judges.Judge Valentine presides over theongoing Lower Rio Grande Basinadjudication.

Professor McGovern drew on theSnake River Adjudication, as well asseveral other large lawsuits he has

worked with, to provide conferees with aconceptual structure for what judges and

mediators do. Alternative processescan be employed for resolution of adispute. The process that’s “right” isthe one that yields truth at the endof the day. Strategic mediation,which Professor McGoverndescribes, is one process used bymany judges and mediators. It

begins with defining the parties andthe issues to the mediation, which are

related, but not necessarily identical, tothe parties and the issues in the lawsuit.

PartiesIn a lawsuit, the parties are defined by thejudge and the rules of procedure;mediators have more flexibility. There maybe parties with no standing in the lawsuitthat the mediator wants to have at thetable; conversely there may be parties tothe lawsuit that you would rather not haveat the table. In the Snake Riveradjudication, the parties met in bothformal and informal forums, in a ratio ofperhaps 25/75 formal/informal. One reasonfor that ratio was that there was a partythat didn’t want a settlement. It’simportant for those who want to settle tobe able to talk without the nay-sayers atthe table. But this option is tricky, for thesettlement will have to deal with thosenay-sayers. Any alternative the mediatorchooses—whether it is accepting theparties as given by the lawsuit orexpanding or contracting that group—is adecision, one to be made with the end of asuccessful resolution in mind.

IssuesJudge Hurlbutt’s decision on the SnakeRiver concerned reserved water rights, butthere were Endangered Species and CleanWater Act issues on the basin as well. Thejudge must address solely the legal issuebefore the court; a mediator, however, canbring in related issues if it appears theywill help the parties to reach a settlementor that their omission will make asettlement, once reached, impossible toimplement.

ProceduresThere are standard models for how youproceed with a lawsuit, and mediation hasstandard models as well. To begin, youtake the list of parties and issues; you meetwith the parties jointly, and both makepresentations. Then you separate themout and do some shuttle diplomacy, andproceed from there.

There are strategic decisions made aboutprocedure as well. McGovern mediatedUnited States v. Michigan 30 years ago,which was a case about who owns theGreat Lakes. He recalled that a relatedlitigation had taken place in WashingtonState recently. He invited the Washingtonlitigants to Michigan to tell the partiesabout how difficult it was.

DiscoveryThere are strategic techniques fordiscovery as well. A model of fisheries wasdeveloped jointly by the parties in United

States v. Michigan. That’s not in therules, but the fisheries model was materialin reaching a conclusion.

54

Presently a professor at the DukeUniversity School of Law, FrancisMcGovern has served on the facultyof many American law schools. Hewas at the forefront of thedevelopment of “alternative dis-pute resolution” or ADR techniquesto avoid or improve litigation, andhas served as special master orneutral mediator in many massclaim lawsuits. He says he ismoved in his work by his concernabout the public’s decreased faithin traditional government disputeresolution systems, and seeksavenues to make those systemswork better in the sense of beingmore efficient and leaving theparties satisfied with the processand results.

Francis McGovern

Strategic mediation in large lawsuits

Snake River AdjudicationParties: Professor McGovern presented apartial list of the parties to the Snake RiverAdjudication. It included the State ofIdaho, the U.S. Department of Justice, theNez Perce, the Shoshone-Bannock Tribe,65 cities and municipalities, 22 irrigationdistricts, 15 water users’ associationsand/or canal companies, 16 corporations,16 agricultural firms/ranches, and theNative American Rights Fund. There wereindividual parties as well.

This list raises a wealth of questions. First,of course, how to organize these parties?Since there were only 8-12 water lawyersin Idaho, one option was to do thenegotiation with the lawyers. It was clearthat this option involved risk. As ProfessorMcGovern observed, lawyers want to sendtheir kids to school just like everyone else.

Second, what to do about parties inWashington, Oregon, and Montana, and thefour dams on the Snake outside of Idaho?Should this litigation be expanded or not?It was decided that this settlement had tobe restricted to the State of Idaho. Whilethere should be communication with theother parties, bringing all the parties to thetable would be too much.

Issues: In the Snake River adjudicationthe necessary issue was water rights. Butit would do the parties little good toresolve their water rights if they would beabrogated for endangered species. Herethe decision was to expand the issues, toinclude these additional water claimants,the endangered species and water quality.This expansion changes the structure ofpower, and the mediator has to be carefulhow power is redistributed. Rule #1 forthe mediator is “do no harm.” In the end,the settlement addressed water rights,

water quality standards, and a HabitatConservation Plan. This jointly determinedthe law and the facts to be addressed.

Facts and Discovery: Decisions can’t be made in the absence of a certain confidence level. The Snake River is asalmon river, one that should be preservedin perpetuity. It was essential to get theinformation needed, and to work with theparties. Unlike normal rules of discovery,the focus here is on where to addinformation to make people confident thatwhen they do stick their necks out, theywon’t get hurt. Mediation deals with thesame variables as do the courts, but themediator can put them together so as toenhance the possibility of settlement.

Procedure: The art of designing astrategic mediation is in how one proceedson the issues defined with the partiesidentified. Should we use the standardmodel? Hold preliminary discussions,arrange joint session presentations? Areprivate caucuses needed? How thesequestions are answered both depends on,and determines, the mediator’s techniquesor style. The mediator may question,suggest, educate, propose solutions,evaluate claims, identify where the bestthe parties can do is “agree to disagree,”lead “brainstorming” sessions, create“decision trees” to help the partiesevaluate possible outcomes. As thepossibility for settlement approaches, themediator may seek to expand theresources available for settlement;depending on the parties’ styles, themediator may choose a concession-huntingor a one-text approach; conditional offersor two-step offers; a mediator-proposedsettlement.

55

Judge Hurlbutt addressed the role ofthe judge and the judge’s relation tothe settlement process.

What are the limits on judicial authority?

In major stream adjudications the roleof the judge is to set up a fair andimpartial tribunal with open accessto all parties and to create a levelplaying field. Traditionally, inadjudications the judge has sat as apotted plant to rubber-stamp the

administrative agency’s decisions.This traditional role has been largely

discarded. Increasingly, judges see theirrole as to be sensitive to all those speakingand to be very careful in retaining the factand appearance of impartiality. We musttake care not to express sensitivity thatappears to be biased.

Conflict is a transcendent quality of thehuman condition. Conflict is not inherentlygood or evil—that depends on what we doto resolve it. Courts provide a dispute resolution service. The role of the judge is to shape a process unique to the partiesand issues and necessary outcomes in theparticular case before him.

A significant externality is that most judgesfeel a responsibility to the public ingeneral. When an adjudication is filed theconsiderable resources of the courts areengaged. The judge feels responsible tosee that those resources are used wisely,that they are guarded, and that theadjudication moves along sensibly and isnot abused.

We judges recognize that we can be sittingducks. During the Snake Riveradjudication, in every legislative session,legislative leadership would go to the

Supreme Court to request my removal.The lead judge would refuse to remove me,and then the legislators would draftlegislation to diminish my power andauthority. The legislation ranged fromestablishing statewide elections for my seatto replacing me with a three-judge panel.

There are limitations on judges. Thejudiciary has a role as a coordinate branchof government. We only rule with respectto existing law, constitutional, statutory,treaties, and rules placed on us by theSupreme Court. We only deal with actualcases or controversies. There are manyaspects to conflicts that are not justiciablebut demand to be addressed by the partiesto potential settlements. The judge isrequired to see that a case is ultimatelydecided.

Do judges prefer settlements?Judges are challenged to use and control the litigation process to create asuccessful resolution of the issues.Settlement is preferred, to the extent thatif the parties can find common ground,common resources, mutually acceptablemechanisms, it’s better to do so. The judgecan only provide legal answers based onthe law and the facts, while the parties canmodify, combine, and alter their rights by agreement.

While preferring settlement, judges have tobe cautious. I like to tailor every case tothe issues. Settlement can be used as asword by some parties. Exercisingadministrative authorities, the judge or theagency can browbeat people intosettlement. The agency proposes thesettlement and the judge signs off as apotted plant.

56

Judge Dan Hurlbutt had abackground in large, complexlawsuits in 1987, when he agreedto take on the Snake RiverAdjudication. After more than adecade at work on the adjudi-cation, he resigned from the benchin 1998. Although retired, hecontinues to fill in as senior judge.

Judge Daniel Hurlbutt

How the judge relates to the settlement process

57

Alternative dispute resolution is one routeto settlement; others include mediation,arbitration, etc. The nature of the case,timing, and other factors suggest whichmanner of settlement is desirable.

When do the parties want todiscuss settlements andactually settle?In the vast majority of cases it is thependency of litigation that forcessettlement. To go forward with asettlement requires:

1. The appropriate parties are at thetable;

2. Issues must be defined and redefined;

3. All the pertinent facts are available.

Administrative agencies have controlledthese processes in the past because theyhad the knowledge, and could beat us overthe head with it. There are ways to levelthis playing field. Until that card has beenplaced face up on the table, fear of theunknown can inhibit settlements.

There are legal issues that must beresolved before settlement can go forward.There were four tribes filing claims on theSnake River Basin. Three objected to thefourth having standing. The judge had todecide “Who is a tribe?”

What can judges sign off on in a settlement? Terms that are agreed to as a matter of private contract become enforceable whenput into a court order, in a way a privatecontract is not. Courts can provideongoing jurisdiction to oversee thesettlement. Can a judge sign off on asettlement that is counter to priorappropriation? Perhaps. Counter to theconstitution? Perhaps not.

Settlement is no panacea. Litigation canbe positive if it’s tailored to your needs inyour case.

58

Iam a special master, appointed byfederal district court. The State ofNew Mexico and the United States of

America, as co-plaintiffs in thesecases, split my fees and those of mystaff. The order of referenceoutlines the authority and issues Ican deal with. The federal districtjudge that presently has my fouradjudications is a hands-on judge

and has taken over many of the legalissues, leaving me free to work in the

field and work with the parties so that I,too, can take a more hands-on approach

in the field. This involves letting theparties explain what is going on and going“hmmmm,” while the parties come to seewhat’s going on in a more neutralperspective as they explain.

[Gabin was the special master who ruledon the Rio Jemez Agreement.] At the timeof the agreement, unadjudicated waterrights were considered by many, includingsome members of the State EngineerOffice, to be administrativelyunenforceable. This was an argumentagainst this process. The State Engineerand I read the law differently, but weagreed that if anything could be done tosupport the parties, it would be done.

The settlement agreement was sprung onme at the hearing. It gave the court threealternatives with respect to enforcementand agreement, but no agreement as towhich to employ. I was to decide. Mycriterion was which alternative would beself-executing; which would be most likelyto keep the parties out of the court. I wasaware that these were people withoutmuch money, with little access to technicalexpertise, and that most of the data theywould rely on was in the hands of state andfederal agencies.

I discussed the three alternatives with theparties, and instructed the lawyers andtheir clients to go back and thinkcreatively, looking for the most efficientand the least costly option. The StateEngineer was overcommitted as he alwaysis. The hearing was held on July 2nd.

When Gilbert Sandoval asked for therecess, and the tribes and the acequias

came back with an agreement, I simplysmiled and blessed it.

On July 18th I wrote to the parties with mythoughts on how to proceed. On July 31stthe U.S. asked to be allowed to withdrawthe application for a temporary restrainingorder and that the agreement be adopted.In September, the court adopted theagreement. In October, we held a hearingon enforcement. There was a consentorder providing for appointment of a watermaster by the State Engineer, with thebudget to be determined and split betweenthe State Engineer and the Bureau ofIndian Affairs. All agreed on enforcementand on the water master. The latestversion of the order, dated September 3,1997, basically continues the consent orderuntil 2005.

The agreement seemed reasonable. Every-one gave; some gave the most. There was arecognition of relative rights and priorities.The previous special master’s report ontribal claims had priority dates andamounts of water use. The non-Indiansknew those dates weren’t going to change.

In these adjudications the law is not clear.Proceedings sometimes meander in noveldirections. When the parties engage innegotiation or mediation they give thejudge a chance to be fair as a human being.Judges want to be fair. As an attorney withthe State Engineer in the mid-eighties I was

Vickie Gabin serves as specialmaster for the U.S. District Court inNew Mexico in the Zuni River andin four northern New Mexicostream systems: Taos, Chama,Santa Cruz/Truchas, and Jemez.She also has a longstanding in-volvement as a citizen in NewMexico water management. Typicalof these activities is her member-ship on the citizens’ group thatdrafted the State Engineer’s Re-gional Water Planning Handbook;she also co-authored the 1992study Living Within Our Means: AWater Management Policy for NewMexico in the 21st Century.

Vickie Gabin

Reflections of a Special Master

Discussion

Absent parties

Judge Jerald Valentine: I was struck bythe huge list of people who were part of theSnake River adjudication. While that list islong, it is not 250,000 parties long, andthere were 250,000 water rights claimsaffected by the adjudication. Did thoseparties that were not set out on the listhave access to justice? What criteria does ajudge use to decide whether or not to placethe stamp of approval on a proposedsettlement? To the extent that any judgecan accept a settlement, the judge mustconsider the law and the absent parties.

Judge Dan Hurlbutt: There isn’t aperfect way to make sure all wishes tochange a settlement are expressed, butsome ways make it easier. There is a rightto be heard according to law.

I invented a mini-court system to handlethe Snake River Adjudication. Notice toeveryone was a physical impossibility. Isegregated disputes into subcases: noticewas served on the parties to the subcases;global issues were identified in a globalnotice. The notices were publicly postedand parties could subscribe to the noticeselectronically. If a party felt adequatelyrepresented by other parties, they couldsimply track the global notice to keepinformed. This strategy attempted to givenotice as fairly and completely as possible.

Special Master Vickie Gabin: On theJemez, I was concerned about whether theacequia coalition was able to bindindividual parciantes. I created theopportunity for individuals to protest.

There are tensions between individualparciantes and the acequias—thisquestion of the coalition’s authority to bindthe individual is very much present. It’s theelephant in the room. The Rio Jemezagreement was on the edge here. I wasassured that the basin water users’association has the authority to bind itsmembers. There were no objections andthere still have been no objections.Whether this means there is no inequity toindividual members remains an open issue.

Gilbert Sandoval: Given the restrainingorder and the tribes’ senior rights, I had tocommunicate to parciantes that they had no alternative but the agreement. Ifthey had chosen to argue, they would have carried a great burden of litigation,and again would have had to rely on their lawyers for answers. Fighting therestraining order was an expensive option.I felt that the acres determined to havesenior rights—1,600 acres or so in JemezPueblo and some 400 acres in Zia Pueblo—could be served given the flow on the river,and there could still be water available foracequias. My toughest job was to convincethe other irrigators that these were thealternatives.

I made a list of parciantes who signed theagreement. It would have been harder forJudge Gabin to accept the coalition asspeaking for irrigators if I hadn’t gottenevidence of this support. I’m grateful toJudge Gabin for understanding the un-spoken words in the courtroom on the dayshe gave the agreement her blessing—thatthe agreement can create the conditions ofa life with more amity in the basin.

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involved in litigation in which one party’sposition basically gave the judge thealternative of all or nothing. Given thatchoice, the judge decided against the party,

leaving the party nothing, but neverthelessfashioning some relief for the all-or-nothingparty.

Leveling the playing field

How does a judge review a proposed

settlement that the parties have agreed to

sign, to determine whether the playing

field was in fact level, that no party is

getting railroaded?

Judge Dan Hurlbutt: First, you don’twait until you’ve got a settlement agree-ment to develop an understanding of whothe parties are and when it’s appropriatefor settlement discussions to begin. Thejudge needs to evaluate the informationthat is available to all and decide whethermore information needs to be developed.

The critical function is at the front end. Ifall issues are presented fairly and fully andall framework issues are resolved in thesettlement discussion, then, if the partiessign on to the agreement, the judge has topresume they did so voluntarily.

Cognitive psychology teaches us thatframing and ordering of the issues willaffect the outcome. A judge is concernednot to frame the issues in a way thatchanges the power balance.

Some judges are pragmatists, seeking thegreatest good for the greatest number;others want to make sure everyone getstheir day in court.”

Courts apply the law

Judge Jerald Valentine: In Jemez, if thecase had come before a judge for decision,the judge would have had to apply the priorappropriation doctrine. In New Mexico,prior appropriation is not just a statute—it is established by the constitution. The legislature can change a statute, butamending the constitution to change priorappropriation would be the most majorchange in the law since New Mexicobecame a state. A judge could not havereached the outcome reached by the Jemez agreement.

A judge’s duty is to look at a factualsituation and apply the law to it. Districtjudges are the first to rule on the law, thenthe Court of Appeals, the State SupremeCourt, and the U.S. Supreme Court. Thereare difficult decisions that need to be madeby the courts, the legislature, and theexecutive. If you don’t like the priorappropriation doctrine, going to court with your concerns is not the way to resolve that.

Francis McGovern: Unlike judges,mediators and negotiators don’t have to sortout conflicting facts or claims. The purposeof a strategic plan for mediation is toprovide justice. The Jemez settlement usedan equitable basis that would not have beenreached by applying the prior appropriationdoctrine. Courts are to resolve conflict. Ifyou can resolve the conflict by agreementbefore you get to court, that can be betterfor all parties.

Another model is to view the settlementprocess, not as a problem solving process,but as a process where you take opinionleaders and go out for approval. In thisview, settlement is consensus building,bringing everyone to the table to negotiate.

Government-to-government

settlements

Blane Sanchez: Perhaps settlement couldbe approached in a government-to-government context. In the Snake RiverAdjudication this would leave only the fourtribes, the state and the feds. Eachsovereign would then deal with the rights ofits constituents.

Francis McGovern: There were 2.5million claimants over the Gulf war; theUnited Nations dealt with nations, not withindividuals. It can be done both ways.

Take baby steps?

Blane Sanchez: Most water rightsadjudications are based on a comprehensivesettlement which takes years and a lot offunding. An alternative might be to take astep-by-step approach. Decide on one issueand implement it, building trust and givingyou a basis to go forward. If it doesn’twork, you can step back, fix it, and goforward to the next step. The Jemezagreement between the Indians and non-Indians allowed them to go forward.

Francis McGovern: A “baby step”methodology to sanity has been proposedby psychologists as well. But someproblems are polycentric; you can’t do onepart without knowing how the others will fittogether. For these you need the whole ballof wax; but it has to be made manageable.We need to devise procedures to doconfidence-building, and to break babysteps out of the polycentric problem.

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Chris (Nunn) Garcia has twice beendirector of the New Mexico WaterDialogue and editor of its newslet-ter, Dialogue. She has also editedthe State Engineer’s newsletter, theWaterLine (1997– 2001), co-authored the Value of Water studyfor the City of Albuquerque(1996), the Middle Rio GrandeConservancy District Water PoliciesPlan (1993), and a number ofacademic and research papers onwater administration and watertransfers. While a faculty memberof UNM’s Economics Department,she was among the organizingfaculty of UNM’s Master of WaterResources Program. Garcia’s partici-pation in this conference waspartially supported by New MexicoHighlands University’s emergingWatershed and Forestry Institute.

Communities Create Success

Lessons Learned

Chris Garcia

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To find sustainable settlements intransboundary water issues we arechallenged to bridge the gap

between water law and other issues crucialto sustainability, justice, and community.For example: Water law sets out terms ofownership; communities may see theirentitlements to water in much broaderways. Water law, evolved to allocatequantities of water, deals with emergingcrises in water quality and ecologicalrelationships through regulation;communities may need a more holisticapproach to their complex water resource.Part of the answer to bridging this gap liesin broadening the menu of issues to bedealt with in the agreement beyond thoseincluded in the law.

The planning for this conference beganwith a desire to hear about successes inmulticultural water agreements. Inreviewing the conference products, welooked for what these successes had incommon and how these commonalitiesmight be characterized with a view to usingthem to help the parties in similaragreements. Several common themesemerged:

Success is about people: Each of thetellers of “success stories” measured theirsuccess, not necessarily in terms of howmuch was won or lost, but in terms of howtheir constituents feel, now and in thefuture, about the results. As Peter Sly, whochaired the panel, said: “When I hearsuccess stories, they often aren’t aboutmoney or even water. They’re aboutpeople.”

• John Jackson of the Pyramid LakePaiute Tribe measured the successof the Truckee River agreementby how tribal members feel asthey see good quality flow inthe Truckee River rightthrough the reservation.

• Susan Cottingham of theMontana CompactCommission said thatnegotiation is really a meansto move out of a hostilesituation with people who areworking together, to achievebetter dialogue between the Indiannations and their non-Indianneighbors.

• Jeanette Wolfley measured success bycommunity acceptance, which requiresthat there be a guaranteed plentifulsupply of water for present and futurecommunity needs, from spiritual totribal irrigation.

• Laura Rose Day said “ultimatelysuccess would be if the grandchildrenof the Penobscot and their neighborshave a different relationship to the river.”

Respect among the parties is essential:This follows from “success is about people.”To reach a settlement that satisfies thebasic needs of the parties, the parties mustbe able to put their needs forward candidly,confident they will be heard with respect.An honest discussion of this kind is theopposite of the strategic positioning oftenassociated with negotiation, which David

Guy called the mine vs. theirs approach.While there are many benefits of opencommunication, there are also dangers. A foundation of respect for one another’svalues and traditions is essential tobuilding the trust on which an opendiscussion is based.

• Estevan López said: “Preservation ofenvironmental qualities depends ondeveloping trust with one another.The only way to do that is torecognize that the perspectives webring are valid. … There is no oneview about [water]. The perspectivesothers value highly shouldn’t be setaside with ‘My view is the right view.’Too often we don’t allow ourselves todevelop the trust necessary to workon resolution of issues. That’s ourchallenge, and I hope we’re up to it.”

• George Britton dared to use the much-maligned word “political, with a smallp,” for this sort of exchange, reclaim-ing what was once an honorable termfor the negotiation of the socialcontract. In such a process, he said,“Ownership may become stewardship;exploiters may become conservators;adversaries may become partners;conflicts may become collaborations.These key phrases recognize the corepolitical meaning of the disputes.”

• David Guy described the landmarkagreement between northern andsouthern California water interests as“a major cultural change, a recognitionthat we couldn’t pursue mine vs.

theirs. It manifested a culture ofsuccess. No one was thinking failure.No one wants to go back to the sameway of doing things.”

This point is well-illustrated by theinteractions that resulted in the Jemezagreement. These neighbors already knewand respected one another—many hadbeen high school comrades. But in theheat of the adjudication, feeling that theirwater, the lifeblood of their connection tothe land, was threatened, this sharedhistory was temporarily forgotten. GilbertSandoval tells movingly about the momentwhen a negotiating team went out to walkthe ditches, when he realized that thepueblo ditches were dry and had beenbone dry for months. Gilbert knew in hisguts what a dry ditch means. As a

neighbor he knew that something had tobe done. The pueblo was no longer theadversary in the litigation, but a neighborin trouble, and discussions began inearnest once the parties’ commonlandscape was revealed.

Several thoughtful commentators haveobserved that the Rio Jemez agreementwas not made among parties who arediverse at their core, but among neighborswho, though based in different cultures,share essential values of connection to theland, the river, and to agricultural life. Itremains to be seen whether truly diversecommunities can also recognize them-selves as neighbors sharing a commondependence on the river, in a way that willmake possible really sustainableagreements. This seems a worthwhilequestion to explore.

We need to hang in there: If success islargely found in healthy ongoingrelationships among the basin’scommunities, the parties must stay aroundto experience success.

• Gilbert Sandoval, who has 35 yearswith the U.S. Forest Service,described the agency’s career ladderas “promotion and relocation”. Careerforesters “never saw the result of theirefforts, whether they were a failure ora success. My decision was to stay inmy area, where I have five generationsof roots—so I suffered the agony offailure in my projects where theydidn’t realize their promise, but I alsoenjoyed the fruits of successes. Imade a lifelong commitment so I canimprove my relationships and so mychildren do not have to do this again.I can’t tell you how important it is tobe intimately familiar with theproblem from the perspective of thosewith me.”

• Peter Pino, a party to the sameadjudication, put it more bluntly. “Inmany of your introductions you said‘in my previous life.’ … That tells meyou guys are temporary, mobile. Ifyou’re going to make an agreementyou have to be here when we’re tryingto work it out. If you’re mobile, Iwonder what you’re running from.Please stay where you are if you’regoing to work on this.”

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We need a common understanding of

the facts: It is essential for the parties todevelop a common understanding of thelaw, hydrology, history, ecology, andgeology of the transboundary water basinin order to reach an agreement that standsup over time. While no one suggested thatresearch, data, and education wouldproduce a successful agreement, we heardover and over again how essential theseare to creating an environment for asuccessful agreement.

These observations drawn from successfulagreements suggest an approach totransboundary water negotiations,especially in multicultural contexts, thatthe Utton Center proposes to test out onthe ground. Consider the fourobservations above:

• success is about people

• respect is essential

• those who make the agreement should stay around to implement it

• we need a common understanding of the facts

As we reviewed these commonalities, itappeared to us that a stronger foundationfor developing a water agreement might bebuilt by bringing the parties together priorto negotiation to learn jointly theimportant facts about their sharedresource and to learn about one another.Since it is the community that will live withthe agreement, our thought is that it iscommunity members and their leaders whoshould come together for this process.Lawyers and advocates may join thecommunity members, but they are not theprime actors in this foundation step. A series of encounters in a mutually-respectful learning and teachingenvironment, focused, not on hammeringout settlement terms, but on creating acommon understanding, could reveal alandscape that contains settlement optionsthat adversaries might never uncover.

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11 Steps to a

Successful

Settlement

The following list isdrawn from a paperused to support a

presentation by MarilynO’Leary on principles ofwater rights settlements,based on this three-dayconference. Thepresentation was given atMcGeorge Law School’sconference, “TransboundaryFreshwater EcosystemRestoration: The Role ofLaw, Process and Lawyers”February 18-19, 2005.

64

Recognize that water plays differentroles in different communities.

(Estevan López)

Respect and recognize the relativerights and priorities of the parties;attempt to find commonalitiesbetween the parties and their overall goals.

(Vickie Gabin)

Decide whether to expand theissues—expansion of the issues“changes the structure of power, andone has to be careful how power isredistributed.”

(Albert Hale)

Decide which parties you will inviteto the table. Too many parties couldcause the settlement to becomeinefficient; failing to identify all theinterests involved could mean thatthe settlement will not besustainable.

(Francis McGovern)

Have committed participants and leadership capacity, as well as sound structure and process.

(Shirley Solomon)

Educate the community about thewater agreement’s importance.Success is community acceptance.

(Jeanette Wolfley)

Successful negotiation consists notonly in reaching a settlement, but inimplementation of the settlement.

(George Britton, Albert Hale)

Settlement processes need to bewell-funded; otherwise some whoneed to be at the table may not beable to participate.

(Eileen Gauna, Paula Garcia)

A step-by-step approach may be lesstime-consuming and resource-intensive than a comprehensivewater-rights settlement.

(Blane Sanchez)

Recognize that “litigation can bevaluable; looking for alternatives tolitigation shouldn’t itself be a goal.”

(David Guy, Dan Hurlbutt)

The change must be regional andnational as well as local. “We have to talk about developing a better system that can provide for a greatvariety of uses.”

(Dale Pontius)

To The Larger Community

Next Steps for theUtton CenterMarilyn C. O’Leary, Director, Utton Center

As I went from group to groupworking on the hypothetical duringthe conference, I observed two

phenomena. First, the nature of the discus-sion varied greatly with the composition ofthe group. If the group was comprisedmostly of men, or of women, or of tradition-al water users, or of newer water users, thediscussion had a particular emphasis. Thecorollary was that the more diverse thegroup, the more people spoke up. In groupswith little diversity, the “minoritymembers,” were quiet. It was clear that iffull participation by all stakeholders isdesired, the group must be balanced.Second, the less political power the groupperceived it had, the more creative were itssolutions. I believe this fact speaks to thelack of necessity to be creative when one isin a power position. Having seen theseeffects will allow us to constitute groups inways to more effectively manage difficulties.

Focusing on successes allowed participantswho were involved in seemingly intractablewater disputes to consider different waysof approaching issues. Many people toldme how refreshing it was to see that thesedifficult issues could be successfullynegotiated. It was also apparent thatcertain common themes cut across all ofthe success stories: an understanding andacceptance by all parties of the basic law orfacts at issue; the importance of an attitudeof respect; building or maintainingrelationships during the negotiationprocess; and keeping the public informedas the negotiations proceeded were only afew of the important messages.

It became clear to me that eachstakeholder to a water rights negotiation

brings his or her own culture to thetable, whether it is a racial, historicor governmental culture. Thesedifferences affect our approachesto water use, our values, and ourneeds. Acknowledging andunderstanding our differencesallows us to see our similaritiesmore clearly and enhances ourability to work toward a commongoal. And so while we presentedcultural differences we also werecognizant of the similarities that bringpeople together over water.

The Utton Center intends to take this kindof workshop into real-life situations, suchas adjudications or other water disputeswhere the parties could benefit fromeducation, training, and examples ofsuccess. It is an excellent model forconveying information, educating parties,and building relationships — all of whichare necessary for successful resolution ofcomplex disputes. Our goal in continuingwith this work is to bring parties togetherfor educational purposes and to provideinformation and experiences to allowparties to move into the settlement mode ifthey so desire. This is one way of using AlUtton’s method of preventive diplomacy.

During the last afternoon of theconference, in the midst of a hot, dry, latesummer day, we first heard, then lookedout the windows of the meeting room tosee, a lovely, soft rain, blessing the land,watering fields, and filling the streams. Inthe beautiful setting at Santa Ana Pueblo,many of us felt fortunate to have had theexperience of working together on suchcomplex issues with a vision of success. 65

66

It is not disturbance

that destroys a watershed.

Destruction comes when

connections are broken.

– Shirley Solomon

Skagit Watershed Council

Reprinted with permissionfrom Edward R. Tufte,Envisioning Information,

1990. Graphics Press,Cheshire Connecticut.

Original printing JosephHutchins Colton, Johnson’s

New Illustrated Family

Atlas with Physical

Geography (New York,1964), pp.10-11.

NON-PROFIT ORG

U.S. POSTAGE

ALBUQUERQUE, NM

PERMIT NO. 39.

PAIDThe Utton Transboundary Resources Center

University of New Mexico School of LawMSC 11-60701 University of New MexicoAlbuquerque, NM 87131-0001