Truth or Consequences: Settling Water Disputes in the Face of Uncertainty

Negotiations to resolve intergovernmental natural resource issues, like those concerning the water rights of the Nez Perce Tribe, occur in the face of both legal and scientific uncertainty. Legal uncertainty is necessary because it is the potential risk of a litigation loss that gives parties the political will to settle. As such, legal uncertainty is the room within which parties negotiate. Scientific uncertainty that is sufficiently narrow, can serve the same purpose as legal uncertainty by providing room to negotiate. However, in many instances scientific uncertainty must be addressed during negotiation as an issue. This arises from the differing roles of law and science in resolving natural resource issues. Both lawyers and scientists speak of the process they engage in as a search for truth. However, consider the possibility that, at least in the natural resource setting, the legal process is a search for finality whereas the scientific process is a search for truth. Those turning to science to solve a resource problem may place higher values on the right answer than on an end to the dispute. This divergence between law and science -- one toward a final solution, one toward the true solution -- may create barriers to achievement of a settlement if not addressed. In 2005, the Nez Perce Tribe, State of Idaho, and United States entered an agreement settling the water right claims of the Tribe in Idaho. Among the claims asserted by the Tribe were off-reservation instream flow rights stemming from the treaty right to fish at the “usual and accustomed places,” and a historic reliance on salmon and steelhead. The claims encompassed much of the Snake River water basin, the primary surface water supply in southern and central Idaho. The U.S. Supreme Court has not been called upon to rule on whether treaty fishing rights translate to instream flow water rights. Thus, considerable legal uncertainty surrounded these claims. At the same time, arriving at a negotiated solution pitched the parties headlong into the decades-long scientific struggle to define the needs of anadromous and resident fish in the Columbia River basin, which includes the listing of eight salmon, four steelhead and one resident trout populations on the endangered species list. The final settlement includes: state-held instream flow rights on two hundred and five stream segments in the Salmon and Clearwater drainages; funding for habitat restoration; voluntary measures in a forest practice program (Idaho Forestry Program) that is supplemental to the Idaho Forest Practices Act to improve and protect riparian corridors on salmon spawning streams; flow augmentation from Reclamation projects on the Snake River in the amount identified as necessary by the U.S. Fish and Wildlife Service (FWS) and National Oceanic & Atmospheric Administration, Fisheries Service (NOAA Fisheries, formerly National Marine Fisheries Service or NMFS); and transfer of aspects of fish hatchery management to the Tribe. Arriving at these solutions required scientific analysis on such questions as: the importance of various streams in the salmon life cycle; the level of flow needed for the stage in the salmon lifecycle relevant to that stream; effects on the salmon lifecycle of modifications to the riparian corridor and the amount of modification acceptable; and the amount of additional flow needed in the Snake River to prevent jeopardy to salmon -- questions without black and white scientific answers. This paper uses the treatment of off-reservation instream flow claims in the Nez Perce water negotiations as a case study for analysis of the role of legal and scientific uncertainty in natural resource dispute resolution and discusses potential options available to governmental parties seeking final resolution of complex natural resource disputes in the face of scientific uncertainty.