Sovereignty, Certainty & Opportunity:
Secretary Kempthorne's
Vision for Tribal Water Rights
Settlements in the West
Third Annual Indian Law Conference
University of Idaho,
Moscow, Idaho
October 24, 2006
Northwest Tribal Water Rights Conference
University of Oregon,
Eugene, Oregon
October 27, 2006
The President and Secretary Kempthorne extend their warmest greetings to those of you gathered here today.
When President Bush nominated Governor Kempthorne to serve as the 49th Secretary of the Interior, he specifically noted that one of his qualifications to serve was his previous work to resolve a long-standing water rights issue, which was, of course, the Nez Perce agreement in Idaho.
We will further discuss that particular settlement in a moment.
Before we talk about the future, I thought it would be appropriate to talk about the commitment by the Bush Administration to issues in Indian Country generally.
During the past 6 years, interior-led tribal water rights settlements have resulted in hundreds of millions of dollars worth of commitments to resolve some of the most difficult issues surrounding water and future economic development for tribal governments as well as those who depend on resource-based economies.
Because the Secretary was once a governor, it should not come as a surprise that he strongly supports local, on-the-ground solutions to difficult issues.
Stated differently, he is not a fan of top-down dictated outcomes from the federal government.
The President and the Secretary both understand that those who live and work on the land offer the best perspective on issues involving the very resources that they depend on for their economic survival.
We call this model of problem solving cooperative conservation.
In June of this year, President Bush said: “We believe cooperative conservation is the best way to protect the environment. This means we must focus on the needs of tribes and states, and respect the unique knowledge of local authorities, and welcome the help of private groups and volunteers.”
Recently, the Departments of Interior, Agriculture, Commerce and the EPA completed nine weeks doing something that could be cynically portrayed as the rarest of commodities in government: listening.
With the support of the President, we abandoned Washington, DC, and traveled across the country.
From Fairbanks, Alaska, to Orlando, Florida, we asked citizens how we are doing with making our nation’s environmental laws work.
We heard from our partners in Indian Country, and, not surprisingly, their perspective is one that was not surprising.
Cooperative conservation works best, we were advised, when together we listen, ask questions, learn, and trust the instincts of those who deal day-to-day with the issues.
We also heard from those who told us that their experience is that reasonable people sitting down together will look beyond their differences to their common interests and find ways to overcome the challenges they face.
Secretary Kempthorne realizes the importance to the tribes and regional stakeholders in resolving tribal issues, and he understands the failings of resolving issues through a judicial process designed to determine winners and losers.
The Secretary believes that settlement discussions resolve more than just tribal water rights claims.
He has first-hand experience in this regard.
In Idaho, we fostered a close working relationship with our sovereign tribes on a variety of fronts, from species co-management, treatment as a state under the clean water act, and executive orders reaffirming government-to-government relationships.
There are very few moments that one can describe as truly watershed, but I can say with confidence that the Nez Perce agreement was one of those significant moments for then-Governor Kempthorne.
When we started the settlement discussions, few thought we’d be successful.
Our original mediation timeline was seven months, but, as we later found out, seven months became six years.
As you can well imagine, there were moments when we thought the settlement talks were without a pulse.
The Secretary is fond of recalling a moment where he invited the water users into his office to discuss the future prospects of our negotiations.
The lawyers for the water users insisted they had to accompany their clients to the meeting.
The governor said fine, except that all of the lawyers – including myself – had to sit in a corner of his office so that he could visit directly with the decisionmakers who were wrestling with their own economic future.
He advised them that he could not presume to know more about their livelihoods and water rights than they did, but if they stayed at the table he would work with president bush and congress to ensure the success of the agreement.
Ihe final result was that we stayed the course, were patient, talked more, compromised more, and completed the task.
That was the easy part.
The arena for our settlement then moved to Capitol Hill.
More talks, more patience, more compromise, then, with no small amount of divine intervention - success in congress and then later at home.
The Gila River settlement, of which many of you are aware, also involved similar moments of courage and inspiration from all involved.
That settlement is also an outstanding success for the Bush Administration and is notable in that it provides fundng for future Indian Water Rights Settlements in Arizona.
So where does this home-grown experience bring us today?
At the Secretary’s direction, I recently had the opportunity to travel to New Mexico and Arizona to extend the Secretary’s greetings and best wishes to those involved with several complex water settlements.
In window rock, I saw and heard the needs of the Navajo Nation.
Presently, many of the people of the nation are trucking water for use in homes.
In Albuquerque, I learned more about the effects of ground water pumping on traditional tribal water interests, including cultural uses.
I heard the horror stories about difficulties in moving water rights litigation through the courts, for example, seventeen years for one single motion to be decided.
In Santa Fe, I met with state representatives who explained the importance of these settlements to New Mexico, something I completely understand given my Idaho experience.
I also met with non-governmental parties, and I asked them what these settlements mean to them.
I was told that these negotiations are an opportunity to resolve outstanding issues that many of their own branches of state government have been unable to conclude or administer for them.
I well understand that a successful outcome to these negotiations will mean a re-affirmation of tribal and state sovereignty.
Settlement of these issues will bring peace between fellow neighbors and thus certainty to the relationships among governments as well as between the governments and the governed.
Finally, these agreements will provide economic development and thus opportunity for all.
So while the Bush Administration and the secretary can certainly take a moment to reflect on past successes, we understand that there is much work to be undertaken.
There are presently nineteen outstanding tribal water rights settlement negotiations looming on the horizon.
We know that each settlement is unique, and that there is no “magic bullet” to address the remaining controversies.
We know well that through these negotiations our tribal partners seek assistance in building and rehabilitating their aging water storage and distribution systems and restoring riparian and wetland habitat.
For example, in the San Luis Rey settlement, the goal is to obtain water by lining the Coachella Canal.
The Zuni settlement will meet a cultural need by rehabilitating and area sacred to the Zuni known as “Zuni Heaven,” and restoring riparian habitat for religious purposes.
And the Nez Perce agreement contained express provisions for a municipal water treatment facility for the tribe and their neighbors.
The Administration generally, and the Secretary specifically, understand the concerns expressed by tribes and others that the path to sovereignty, certainty and opportunity will be less clear as long as the issues underlying these settlements are unresolved.
The development of infrastructure to deliver and use water, as with the Navajo-San Juan agreement, hangs in the balance.
Eeconomic self-sufficiency and the benefits of tribal federal reserved water rights, while gaining certainty, will minimize impacts to their neighbors.
Also, we know tribal governments are appropriately demanding that they control the destiny of natural resources on their tribal lands.
So what are the challenges ahead for the administration and the department of interior as we address these ongoing negotiations?
We must first consider what settlements are truly ready to pursue to conclusion.
In my brief time at Interior, I have observed that there seems to be a rush to the Department of Interior and federal treasury, with a “first come, first served” motivation by all sides to a prospective agreement.
Not surprisingly, we will be looking at settlements that have the support of all the parties, including the respective congressional delegations.
In our view, the settlements that appear to be ready for federal consideration within the next year are several settlements in California, Montana, and New Mexico.
We will also be considering a more holistic problem-solving approach to those issues, and some settlements could include discussion of strategic approaches to the endangered species act and the clean water act.
We will also consider non-monetary elements such as land transfers, habitat management and facility operations. These were key ingredients to the success of the Nez Perce agreement.
As the Secretary of Interior, former-Governor Kempthorne supports the difficult work good people in the states have achieved in coming together, because that support is exactly what he expected of interior when we were once on the other side of the negotiating table.
But there is more to consider than just the path to success of local negotiations.
As we assess the current landscape, proposals for tribal water settlements now exceed billions of dollars.
Also, we acknowledge the conundrum of involving the federal government at early stages of discussions.
We know there is a constant competition for resources: people, funds for modeling, studies, policy support, and other essential ingredients. And we know that any official federal position must be coordinated with the department of justice and the office of management and budget.
These dynamics sometimes produce a scenario in which the parties come to agreement without the support or full participation of the United States Government and later result in a significant federal price tag.
Sometimes we hear that the parties will rely on congress to “roll” the department into achieving success.
While we have great respect for our co-equal branch of government, this is not always the best game plan for the sovereignty, certainty and opportunity that should be the hallmark of those settlements I mentioned earlier.
We need to understand that the secretary will consider the value of settlements beyond mere “costs.”
The Department’s 1990 policy guidance tells us that the total cost of a settlement to all parties should not exceed the value of existing claims as calculated by the federal government, and that is our policy.
Further, we know that federal contributions should not exceed the calculated legal exposure as well as costs related to federal trust and programmatic responsibilities.
The Secretary believes that non-federal cost-share should be proportionate to the benefits received by the non-federal parties, unless a different cost ratio is justified.
We understand that this policy has raised concern by some in Indian Country and the States.
But we also know that it has brought a greater sense of financial partnership and ownership of the structure of these agreements, while also providing flexibility on a case-by-case basis.
The Secretary knows that tribal water rights settlements are neither easy nor swiftly concluded.
So let’s talk about how we will approach the daunting tasks at hand during Secretary Kempthorne’s tenure.
We will be looking into permanently institutionalizing the Secretary’s Indian Water Rights Office into the structure of the Department of the Interior.
This approach will avoid more bureaucracy and instead offer a better and more efficient structure to resolve these issues.
Further, some of our senior negotiators in the Indian Water Rights Office are already based in the West in order to provide a more visible presence on day-to-day management of these negotiations.
Also, we will be examining the opportunity for greater partnership with other federal agencies who have similar working relationships with tribal governments to address needs or other concerns that would be satisfied by water settlements.
Our sister agencies - EPA and HHS - come immediately to mind.
In short, we will look to all of the available resources in order to meet the needs of our partners in these negotiations, with the understanding that we will not dismiss any creative and innovative approaches to resolving settlement discussions.
In conclusion, the President and Secretary Kempthorne remain committed to continuing the legacy of success on settlements such as the Arizona Water Settlements Act and Nez Perce agreement while making substantial progress on those settlements that are ready for final action.
But we cannot succeed without our partners.
We understand that these negotiations take courage and commitment, and these settlements require no small measure of trust between all of those engaged in discussions.
We need your help in ensuring that these settlements meet the federal government’s responsibility to our tribal partners, our water rights stakeholders, and the taxpayers, who, by the way, are also all of us.
But the President and Secretary Kempthorne know that there is no shortage of inspiration and commitment when it comes to resolving these issues.
We know that these agreements are inherently imperfect because they involve compromise of fundamentally-held beliefs by all sides.
But in the end, we are grateful for your friendship, leadership and partnership as we work toward more accomplishment in the years ahead.
Thank you.