Santa Fe, New Mexico                       April 5–6, 2018

 

At the 18th Annual Law of the Rio Grande Conference in Santa Fe—a gathering of stakeholders from Colorado, New Mexico, and Texas—several professionals took advantage of the opportunity to weigh in on Texas v. New Mexico & Colorado, an ongoing case before the United States Supreme Court.  Three presenters, one from each state, gave a formal update on its status.

The presenter from Texas provided a brief orientation to Supreme Court jurisdiction and procedure as it relates to the case in question. The Supreme Court has exclusive and original jurisdiction over actions among states.  Because that jurisdiction is discretionary, a state must petition the Court for permission to file a complaint against another state.  If the Court grants the motion to file, it then appoints a Special Master to hear the case and make a report with recommendations for how it should be resolved.  The parties then file any “exceptions” to the Special Master’s Report.  The Court reviews the exceptions and issues its Order.

Overview presentations of the Rio Grande Basin provided background for the facts of the case.  The Rio Grande Compact is an interstate agreement between Colorado, New Mexico, and Texas that apportions Rio Grande Basin water among the three states. Under the Compact, Colorado must deliver a specific quantity to New Mexico, and New Mexico must deliver a specific quantity to the Elephant Butte Reservoir, from which water is distributed to New Mexico and Texas.  Elephant Butte Reservoir, located in southern New Mexico, is a federal Bureau of Reclamation project.  Texas v. New Mexico & Colorado is based on Texas’ allegation that New Mexico has violated the Compact by allowing diversion of surface water and pumping of groundwater that is hydrologically connected to the Rio Grande below Elephant Butte Reservoir, thereby depleting Texas’ share of water.  Given the case’s pending status, New Mexico did not delve into its position at the conference, however, in its 2014 Motion to Dismiss, it asserted that the Compact does not require New Mexico to preserve conditions on the Rio Grande below Elephant Butte Reservoir.

The Colorado presenter provided a timeline for the procedural history of Texas v. New Mexico & Colorado:

 

2013     Texas moved for leave to file

 

2014     The Supreme Court granted Texas’ motion to file

United States filed Motion to Intervene, which the Court granted

New Mexico filed Motion to Dismiss

Court appointed Special Master

Elephant Butte Irrigation District filed Motion to Intervene

 

2015      El Paso Water District 1 filed Motion to Intervene

Special Master heard oral argument on all Motions

 

2016     Special Master issued draft First Interim Report on all Motions

Parties provided comments for consideration

 

2017     Special Master issued final First Interim Report with the Court

Parties filed exceptions to First Interim Report

The Court denied Motion to Dismiss and Motions to Intervene

The Court sustained the United States’ and Colorado’s exceptions concerning the scope of compact claims the United States can assert

 

2018     January – The Court heard oral argument on exceptions

March – The Court granted the United States’ right to file compact claims under certain circumstances

April – The Court discharged the Special Master and appointed a new one

 

Next     New Mexico and Colorado to file answers with any counterclaims

Steps    Responses to any counterclaims

 

Colorado

Karen Kwon, First Assistant Attorney General from Colorado, was the first to take the podium for the formal presentation of the case update.  Kwon started off by reminding the audience that, although the case is more frequently referred to as “Texas v. New Mexico,” the audience must not to forget that it is actually Texas v. New Mexico & Colorado.  She addressed Colorado’s interest in the case even though the controversy is between Texas and New Mexico.  She explained that because Colorado is a signatory to the Compact, how the case is decided could affect its interests.  Kwon outlined Colorado’s concerns to be: (1) protecting the State and its water users’ interests in the Rio Grande Basin; and (2) protecting the State’s sovereign interests in compact law more broadly.

Speaking to the second of the two concerns, Kwon clarified Colorado’s rationale for taking exception to the United States’ ability to pursue claims for Compact violations.  She specifically noted the State’s motivation to avoid “compact challenges by non-signatories, or by third-parties who may frustrate the purpose and intent of the signatory states.”  She further emphasized that the Court’s March 5, 2018 opinion did not grant the United States ability to assert compact claims in all cases.  It found only that intervention was appropriate in this case, considering the United States’ “distinctively federal interests” in this particular Compact, which concerns a federal reclamation project and international agreements with Mexico.  Kwon concluded by emphasizing that Colorado does not want to be “dragged into the litigation any more than it has to” in order to protect the interests she discussed.

 

Texas

Second to speak was Jon Niermann, Commissioner of the Texas Commission on Environmental Quality.  Niermann provided a more detailed summary of Texas’ allegations: (1) the 1938 Rio Grande Compact affects equitable apportionment of waters between states; (2) the Compact is predicated on the understanding that water released from the Elephant Butte Reservoir would not be subject to depletion in excess of what existed in 1938; and (3) New Mexico has taken water to which Texas is entitled by increasingly allowing diversion of surface water and extraction of groundwater below the reservoir.  Niermann also outlined New Mexico’s arguments in its Motion to Dismiss that: (1) the Compact contains no language requiring New Mexico to preserve conditions on the Rio Grande below the reservoir; and (2) Texas’ sole recourse is legal and administrative remedies under New Mexico state law.

Niermann discussed the Special Master’s recommendations.  In recommending that the Court deny New Mexico’s Motion to Dismiss, the Special Master noted, “New Mexico . . . may not divert or intercept water it is required to deliver pursuant to the 1938 Compact to Elephant Butte Reservoir after that water is released from the Reservoir,” and “it is unfathomable to accept that Texas would ‘trade away its right to the Court’s equitable apportionment’ had it contemplated then that New Mexico would be able to disown its obligations under the 1938 Compact and simply recapture water it delivered to the Project.”

Nierman also discussed the exceptions to the Special Master’s Report, noting that Texas filed no exceptions.  Niermann touched on a topic that came up at various points throughout the entire Conference, the fact that the Special Master’s Report included extensive outside analysis and history of the Compact.  Niermann explained that both New Mexico and Colorado took exception to “the detailed analysis undertaken by the Special Master,” but that in its reply, Texas noted the analysis was sound and necessary to understanding the Special Master’s recommendations.

 

New Mexico

David Roman of Albuquerque New Mexico law firm, Robles, Rael & Anaya, was the final presenter.  Roman’s presentation was the most limited, given the status of the case.  Roman did not weigh in on New Mexico’s legal arguments or whether they would be in line with those from its Motion to Dismiss.  He did offer some input regarding the ethics of the outside research reflected in the Special Master’s Report.  He noted that the Supreme Court has held that judges are free to conduct whatever research they want.  However, a December 8, 2017 ABA Formal Opinion titled “Independent Factual Research by Judges Via the Internet,” concludes that “[i]ndependent investigation of adjudicative facts generally is prohibited unless the information is properly subject to judicial notice.”

 

Questions Posed

The presenters fielded questions at the conclusion of the presentation.  One discussion involved speculation as to why the Supreme Court had assigned a new Special Master.  It was suggested this could have been in response to the previous Special Master’s extensive outside research, but the actual reason remained a mystery to all parties.  The timing of the Conference, in the midst of Texas v. New Mexico & Colorado, led to the case being laced into almost every presentation and made for some tense moments.  During his presentation, New Mexico state Senator and gubernatorial candidate Joseph Cervantes prodded all stakeholders to “cut to the chase” and seriously consider what the inevitable settlement will look like.  Another attorney for Texas concluded her presentation with a picture of a New Mexico groundwater well from south of Elephant Butte Reservoir apparently pumping water directly out of the Rio Grande.  In spite of the tension, all parties did seem to share some optimism that after more than five years, the appointment of a new Special Master could help to move the case toward resolution.

 

 

Elaine Nolen


Tribal Water Law: Cutting Edge Insights from Practitioners in Indian Country

Las Vegas, Nevada                  October 12-13, 2017

Conference Sponsor: CLE International

Ethical Considerations: Water as a Human Right

 

Presented by: Heather White Man Runs Him, Esq., Native American Rights Fund.

Dressed in the business attire of many varied cultures, a group of western tribal leaders, attorneys, and government officials came together to discuss tribal access to clean water. An examination through the lenses of legal-minded objectivity and humanitarian efforts for change revealed a clear and undeniable conclusion: tribal water law is an uphill battle. Most U.S. Representatives and practicing attorneys would be far from proclaiming that tribes have less right to water than other users and their right to water is legally established by the Winters doctrine. This doctrine, established in Winters v. United States, 207 U.S. 564 (1908), makes clear that Native American reservations are accompanied with the necessary water rights sufficient to fulfill the purpose of the reservation. Heather White Man Runs Him, an attorney for the Native American Rights Fund in Boulder, Colorado, presented her concerns over issues of legal ethics in the multi-faceted practice of tribal water rights settlement.

Federal Indian law is founded in international law. As such, the underpinnings of Heather White Man Runs Him’s presentation came from modern, international human rights declarations. In 1999, the United Nations General Assembly (“UNGA”) affirmed that “the rights to food and clean water are fundamental human rights” and declared their promotion a “moral imperative.” In 2010, the UNGA formally recognized the fundamental right to water and that “clean drinking water and sanitation are essential to the realization of all human rights.” In the same year, President Obama changed the position of the United States to support the UN Declaration on the Rights of Indigenous People (“UNDRIP”).

The UNDRIP recognized that indigenous peoples and individuals have the right to: (1) the full enjoyment of all officially-recognized human rights and fundamental freedoms; (2) the enjoyment of the highest attainable standard of physical and mental health; and (3) the continued enjoyment of their strong, distinctive spiritual relationship with their traditionally used or occupied lands, territories, and waters. This last item is expanded in Article 26 of UNDRIP, which recognizes the right of indigenous peoples to own, use, and develop the lands, territories, and resources that they have traditionally occupied or otherwise used or acquired.

As illustrated by these legal precedents, the federal government has twice recognized that indigenous people have the right to own and use water. This recognition represents both a right in and of itself and a necessary means by which indigenous people can enjoy other guaranteed human rights. Only 0.6 percent of the United States population lacks access to safe drinking water and wastewater disposal. However, in 2011, a grossly disproportionate thirteen percent of Native Americans lacked access to drinking water and wastewater disposal. Meanwhile, between 2008 and 2010, the U.S. Government spent more money on foreign water projects than it has on Native American water projects in the last twenty years.

Recent case law has cast doubt on the government’s commitment to these promises as well. In Standing Rock Sioux Tribe v. Army Corps of Engineers, 205 F. Supp. 3d 4 (D.D.C. 2016), the plaintiff tribe asserted the right to spiritually pure water. The facts of the case recognized the historical and contemporary use of waterways, artifacts, and landmarks in spiritual practices, and how the construction of a pipeline will irrevocably damage the usability of water for spiritual purposes. However, the court held that there was no right to “spiritually pure” water. In Hopi Tribe v. United States, 782 F.3d 662 (Fed. Cir. 2015), the tribe claimed that past executive orders and the Winters Doctrine created a fiduciary duty on the part of the government to ensure the quality of tribal waters. The U.S. Court of Federal Claims dismissed the case, and the Court of Appeals affirmed. The ongoing litigation of the Agua Caliente case in California further justifies the doubts many people harbor regarding the government’s commitment to tribal water rights. In Agua Caliente, the tribe is litigating for its right to groundwater, as well as surface water, under the Winters doctrine. Water is of paramount significance to the Agua Caliente Band of Cahuilla Indians—they live in a desert.

Heather White Man Runs Him included a discussion of the ABA Model Rules of Professional Conduct in her panel presentation. These rules make no explicit references to human rights. However, human rights issues are a driving force for many people in their decision to attend law school. Simultaneously, legal ethics do recognize inherent human dignity as a component of the attorney-client relationship. Further, while Rule 2.1 of the Model Rules of Professional Conduct only allows for moral counsel to clients, comment 2 states that “it is proper for a lawyer to refer to relevant moral and ethical considerations in giving advice.” Comment 2 goes on to explain the close relationship between moral and ethical considerations and their influence on the application of the law.

Another presenter brought pictures drawn by Native American children to show what they thought was the true source of water: trucks. A generation of children believe that pick-up trucks loaded with water jugs is the most reliable source of water—they are being taught that they cannot rely on the land. Evidence of such skewed perceptions created by a lack of clean water further emphasizes the necessity for efficient litigation and settlement of water disputes involving indigenous people.

Heather White Man Runs Him’s presentation brought to mind questions of how one can ethically represent clients responsible for projects that damage water quality or limit peoples’ access to water. The ABA recognition of contemporary principles of ethical considerations has oscillated between being slow to change and progressing rapidly. In 2012, the ABA adopted UN guiding principles on human rights. Practitioners like Heather White Man Runs Him are at the forefront of questioning exactly how these ethical principles will be implemented.

Garrett Kizer

Image: The Cannonball River in North Dakota, near the Standing Rock. Flickr user, Jimmy Emerson, DVM. Creative Commons.


Western States Water Conference and Native American Rights Fund 15th Biennial Symposium on the Settlement of Indian Reserved Water Rights Claims

Great Falls, Montana                                              August 8-10, 2017

 

Every other year since 1991, the Western States Water Conference (“WSWC”) and the Native American Rights Fund (“NARF”) hold a symposium to discuss the complexities of settling tribal water claims and to celebrate successes from the recent years. During the three-day symposium, various panels discussed the specific details of recent settlements and the logistics of negotiating and passing Indian reserved settlements in the contemporary political climate.

The location of the WSWC-NARF Symposium changes each year to coincide with a recent settlement.[1] This year, the Symposium highlighted the passage of the Blackfeet Water Rights Settlement (“Blackfeet Settlement”).[2] Congress passed the Blackfeet Settlement as part of the Water Infrastructure Improvements for the Nation Act (“WIIN Act”)[3] as their last action of the session in December 2016. In addition to the Blackfeet Settlement, the WIIN Act approved the settlements of three other tribal water rights: the Pechanga Band of Luiseño Mission Indians, five tribes from San Diego County, California, and the Choctaw and Chickasaw settlements.[4] Representatives from the tribal, state, and/‌or federal negotiating teams of each of these settlements presented in Great Falls, Montana. Despite passage in the same bill, the Symposium presenters stressed the unique historical contexts, negotiation histories, and impacts of the four settlements. While each Indian water rights settlement is unlike any other settlement, mutual respect and cooperation by the parties are the key ingredients to any successful negotiation. In that spirit, this note will highlight the four settlements of the WIIN Act, presenting the individuality of these four historic deals and the cooperative successes of the negotiating teams from each settlement.

Blackfeet Settlement

Attorneys from Brownstein Hyatt Farber Schreck, the Montana Office of the Attorney General, the Department of the Interior, and the Department of Justice discussed the process of their negotiations and the logistics of the Blackfeet Settlement, while tribal leaders presented the Blackfeet historical and cultural perspectives leading up to and throughout the negotiations.

The Blackfeet Settlement represents over thirty years of litigation, discussion, and compromise in a complicated legal context. The Blackfeet initially resisted the compacting process beginning in the 1970s over concerns of tribal sovereignty and state intrusion, but after years of stilted litigation, the Tribe agreed to negotiate in the 1980s. The Blackfeet-Montana Water Rights Compact established tribal rights on all surface and groundwater within the exterior boundaries of the reservation, subject only to previously established state rights on a few rivers that support irrigation in highly profitable agricultural lands, which are protected from calls by the Tribe. There were previous decrees and even international treaties the negotiating teams had to account for in the compact as well.[5] Although overall nearly ninety-five percent of the water from six basins is now under tribal jurisdiction, it is important to give the tribe opportunities to bring drinking water to reservation communities and market water off-reservation for revenue. These future projects, however, are not strictly delineated in the compact: the parties worked hard to create sufficient flexibility for forthcoming tribal governments to meet the needs of the tribe in the future, rather than tying funding to predetermined plans.

Another unique aspect of the compact is the recognition of tribal water rights in the Lewis and Clark National Forest and Glacier National Park: the Blackfeet ceded the lands in 1895 but did not cede their reserved water rights, which are now formally protected. At $422 million in federal funds, the Blackfeet Settlement represents the largest federal allocation in an Indian reserved water rights settlement to date.[6]

The presenters again and again expressed gratitude, respect, and admiration for the hard work and dedication of the negotiating parties over the years. The negotiations were born out of contentious litigation and required deliberate cultivation of trusting relationships between the Montana Compacting Commission, tribal leaders, and federal stakeholders from various agencies. It took nearly nine years after the conclusion of negotiations between the parties in 2007 to get federal recognition in 2016.

Choctaw-Chickasaw-Oklahoma City-Oklahoma Settlement

Senior Counsel for the Chickasaw Nation discussed the particularly unique agreement—both in terms of process and outcome—between the Choctaw Nation, the Chickasaw Nation, Oklahoma City, and the state of Oklahoma that resolved long-standing questions over water rights and regulatory authority in the historic treaty areas of the Choctaw and Chickasaw nations. This settlement[7]—the first Indian water rights settlement in the state that is home to thirty-nine federally recognized tribes—came together in lightning speed compared to the usual course of Indian reserved water rights negotiations, which, in many cases, can take decades to finalize. Tribal and state officials worked through five years of state and federal litigation and negotiation to develop the plan, which allows Oklahoma City to draw water from nearby Lake Sardis for municipal use with limits to protect valuable tourist attractions and ecological resources. In return, the tribes renounced any reserved rights to the water, but gained a seat at the table for future decisions about the use of the water at the state level.

The agreement created a five-person commission, comprised of representatives from the city, state, and both tribal governments, to oversee future out-of-state transfers of water in the settlement area as approved by the state legislature, which covers twenty-two counties of southeast Oklahoma—the most water-rich region of the state. These resources are the backbone of vibrant tourism and recreation markets that generate significant economic activity in the area. Thus, this commission was also charged with ensuring that future consumptive use does not unduly compromise the recreational value of the waters. This mutual desire to protect cultural, recreational, and ecological resources formed the foundation for successful negotiation and mutual respect between the tribes and the state and city governments, who, prior to negotiations, had strained relationships.

By renouncing claims to reserved rights, the settlement came to Congress without the need for any federal appropriations. Because of this lack of financial input, the congressional review process was very quick: the negotiation team announced their settlement in August 2016 and it was approved in the WIIN Act only four months later. Counsel for the Chickasaw Nation noted that, while this settlement was particularly unique in its speed and lack of federal reserved rights, it demonstrates what parties can accomplish if they approach a common interest with creativity and a desire to negotiate a solution.

San Luis Rey Settlement

The last two Indian reserved water rights settlements included in the WIIN Act both hail from southern California. In a series of cases from the 1960s, 70s, and 80s, the La Jolla Band of Luiseño Mission Indians, Pauma Band of Luiseño Mission Indians, Rincon Band of Luiseño Mission Indians, and San Pasqual Band of Mission Indians (collectively, the “California Tribes”) challenged diversions of water from San Luis Rey River to profitable agricultural areas in Escondido and Vista. These diversions left the reservations, once abundant in water, wildlife, and vegetation, high and dry since the late 1890s. Temet Aguilar, chairman of Pauma Band of Luiseño Mission Indians, remarked on a panel focused on identification of stakeholders for successful negotiation groups, that his people watched the explosion of exceedingly prosperous agriculture and residential areas in southern California from their parched and deeply economically depressed missions. Without reliable access to water since the diversions began nearly 130 years ago, the California Tribes lacked drinking water for their peoples, water for agriculture, and water for economic development.

The California Tribes, federal government, city governments, and irrigation districts involved in litigation reached a partial settlement in 1988, which earmarked federal funds to create and operate the San Luis Rey Water Authority to regulate the river. However, questions still existed about how to allocate an already fully used river: the California Tribes received paper rights, but no wet water came to the reservations.[8] The parties persisted and eventually lined an already existing canal to prevent seepage, creating an additional 100,000 acre feet per year—more than enough to satisfy the California Tribes’ reserved rights—which now allows the California Tribes to sell excess water back to the municipalities, generating a much needed source of additional revenue. In 2014, when the parties presented this settlement to Congress hoping to access the millions of federal funds set aside in the 1988 settlement, new budgetary constraints and considerations forced the parties to comply with new requirements by amending the 1988 settlement, which ultimately passed in the WIIN Act.[9] Because the amendments made it possible to access the already allocated money, no new or additional federal funding was necessary. The 1988 fund with interest now amounts to $60 million available to the California Tribes for infrastructure.

For Aguilar and his tribal counterparts, this fight for water spanned generations. He expressed deep sadness that many of the tribal leaders who initiated the process so long ago have passed away and were not able to see the culmination of their hard work. According to Aguilar, the conclusion of their efforts reinforced his peoples’ rightful place in 21st century Southern California for generations to come. “We’re not going anywhere,” Aguilar said.

Pechanga Settlement

The final Indian reserved water rights settlement passed in the 2016 WIIN Act resolved the oldest civil lawsuit in the country. In 1951, the federal government sued thousands of landowners and several Indian tribes in the Temecula Valley of Southern California to secure its exclusive use of the Santa Margarita River for the Camp Pendleton military base. In 1963, a federal court issued a decree affirming—but not quantifying—many rights including tribal reserved rights. In 2007, the Cahuilla Band of Indians, the Ramona Band of Cahuilla Indians, and the Pechanga Band of Luiseño Indians all filed motions to quantify their reserved rights in the watershed. Being a particularly complicated lawsuit, a technical consultant addressed the Pechanga settlement on a panel dedicated to the importance of technical information in legal negotiations.

The Cahuilla and Ramona are still negotiating, but the Pechanga received nearly 5,000 acre feet of quantified reserved rights and $28 million in federal appropriations to build necessary infrastructure to bring that water to the people as part of their settlement approved in the WIIN Act.[10] The parties reached their settlement in 2008, just one year after the Pechanga moved for quantification, but the arduous process of federal approval took another eight years. The agreement is a unique collaboration between the sovereign Tribe and local state water providers to manage water in the basin: the Tribe agreed that water allocated to them by the eastern water district outside this settlement would count towards its reserved rights. Individual allotees are also protected and may access the high-quality groundwater for drinking or agricultural uses.

Overall, the WIIN Act put the cherry on top of the Indian water rights sundae of the Obama Administration: under the policy directives of President Barack Obama, twelve Indian water rights settlements were completed during his tenure, more than any other administration to date. While the quantity is impressive, the quality of each settlement is what really matters: water is a vital component to public health and economic development that is at the heart of many tribes’ quest for recognition of their reserved rights, and negotiations serve as a means for tribes to access necessary resources while developing positive relationships with state and federal counterparts.

Aubrey Ryan Bertram

Image: Badger Creek in Lewis and Clark National Forest. Flickr user, Forest Service Northern Range. Creative Commons.

       [1].    This year’s symposium was held in Great Falls, Montana, about two hours southeast of the Blackfeet tribal headquarters of Browning, Montana. The early August symposium coincided with peak tourist season in Glacier National Park, which is adjacent to the Blackfeet Reservation in northwest Montana. The busy tourist season precluded available hotel and conference space on the reservation.

       [2].    Water Infrastructure Improvement for the Nation Act, Pub. L. No. 114-322, §§ 3701–24, 130 Stat. 1628, 1814–45 (2016) (“WIIN Act”).

       [3].    Id.

       [4].    See generally WIIN Act §§ 3401–13, 3605–08, 130 Stat. at 1755–71, 1793–14; Because of the federal oversight of tribes’ limited sovereignty and tribal interests, Indian reserved water rights settlements must be approved by congressional legislation, per Congress’s plenary power over Indian affairs. United States v. Kagama, 118 U.S. 375 (1886).

       [5].    Birch Creek, which is the southern boundary of the reservation, is subject to a 1908 decree contemporaneous with Winters, but it failed to recognize the Blackfeets’ reserved rights. Conrad Investment v. United States, 161 F. 829 (9th Cir. 1908); The St. Mary River and the Milk River are subject to the 1909 Boundary Waters Treaty, Treaty between the United States and Great Britain relating to boundary waters between the United States and Canada. U.K.-U.S., Jan. 11, 1909, 36 Stat. 2448.

       [6].    The Blackfeet Settlement allocates $420.2 million from the federal government. The Confederated Salish-Kootenai Compact, approved by the Montana state legislature in 2015 and currently pending before Congress, asks the federal government to invest $2.3 billion dollars. See Corin Cates-Carney, Interior Balks at Cost of CSKT Water Compact, Mont. Pub. Radio (June 29, 2016), http://mtpr.org/post/interior-balks-cost-cskt-water-compact.

       [7].    WIIN Act § 3608, 130 Stat. at 1796–14.

       [8].    WIIN Act § 3605, 130 Stat. at 1793–94.

       [9].    Id.

     [10].    Id. §§ 3401–13, 130 Stat. at 1755–71.


Tribal Water Law: Cutting Edge Insights from Practitioners in Indian Country

Las Vegas, Nevada                  October 12-13, 2017

Conference Sponsor: CLE International

The Dakota Access Pipeline: A Panel Discussion

 

Presented by: Bret Birdsong, Esq., Professor of Law at the University of Las Vegas, Nevada (UNLV) William S. Boyd School of Law; Constantinos (Dean) DePountis, Esq., In-House Counsel for the Standing Rock Sioux Tribe.

A multiplicity of scholars, academics, and attorneys convened in Las Vegas for the annual Tribal Water Law Conference to discuss the major failures and successes in the field. Bret Birdsong, Professor of Law at the University of Las Vegas, Nevada (UNLV) William S. Boyd School of Law, and Dean DePountis, in-house counsel for the Standing Rock Sioux Tribe, led a meaningful panel discussion on the Dakota Access Pipeline. Through fascinating lectures, they explored the weaknesses of the legal system in dealing with this situation and assessing the relevant environmental and cultural implications. Although the pipeline stands as a tragic defeat in the eyes of tribes all across the country, the struggle can be viewed as a learning experience in many ways.

Perhaps one of most contentious and recognized disputes in Native American history, the Dakota Access Pipeline, also known as the “black snake,” has exposed the complex nature of tribal water law beyond the periphery of the public eye. While disputes over Native American land and water rights often go unnoticed, the pipeline has certainly brought attention to issues that are often hidden in plain sight: constant undermining of tribal sovereignty, lack of consultation, and a disregard to environmental and human safety on the part of both the U.S. government and private corporations.

The Dakota Access Pipeline is a $3.8 billion project developed by Energy Transfer Partners and Dakota Access, LLC. The pipeline is approximately 1,100 miles in length, transporting crude oil from northwestern North Dakota through South Dakota, Iowa, and ending in Patoka, Illinois. The most contentious segment of the pipeline, which has become the focus of media attention, is in fact a very small portion of the entire project. This segment burrows under the Missouri River at Lake Oahe a half-mile north of the Standing Rock Sioux Reservation in North Dakota. Lake Oahe is federally-owned land managed by the United States Army Corps of Engineers (the “Corps”), but it has significant spiritual value to the Tribe’s culture and history.

Dean DePountis explained that the issue with the pipeline’s proximity to the reservation is twofold. First, the pipeline trespasses through culturally and historically significant lands. Second, a leakage or rupture in the pipe would have disastrous effects on the Tribe’s water supply. Under the Garrison Diversion Unit Reformulation Act of 1986, Congress authorized the construction of a rural water system to serve the Tribe. This includes several water intakes on Lake Oahe, which the Tribe uses for drinking water and irrigation purposes. In addition, the Act protects tribal treaty rights to hunt and fish. The effects of a pipeline spill into a waterway with treaty-protected hunting, fishing, and water rights would be disastrous.

The Corps had initially planned to conduct an Environmental Impact Statement (“EIS”) on the pipeline that would allow for “robust tribal and public engagement.” The EIS would have included a catastrophic spill analysis prepared by an independent expert with the task of evaluating the risk of a rupture in the underground portion of the pipeline. However, in early 2017, the Corps issued a memo stating that it intended to withdraw its notice of intent to prepare an EIS and thereby terminated the public comment period. Instead of making legitimate, comprehensive assessments of the environmental impacts by the pipeline, the White House ordered immediate completion of the remainder of the pipeline, with oil flowing through it as soon as possible.

It is important to note that the pipeline does not technically cross tribal lands. If the pipeline did cross tribal lands, tribal consent would be required pursuant to 25 U.S.C. § 324. In that case, tribes could negotiate for financial or alternative compensation. However, the pipeline slithers through land less than a mile outside the reservation. Even though the pipeline falls so close, the Corps and the United States government have used this distance to sidestep the most important issue: cultural and historical ties to the land outside the borders of the reservation. In response, the Standing Rock Sioux Tribe has relied on the National Historic Preservation Act (“NHPA”), the National Environmental Policy Act (“NEPA”), and the Religious Freedom Restoration Act (“RFRA”) as legal tools to object to the construction of the pipeline. This is why the Dakota Access Pipeline is such a complex debate—”the laws don’t have teeth,” DePountis said.

Over the last couple of years, the Tribe has experienced a series of disappointing decisions in the courtroom. In August 2016, the Tribe filed for a motion for a preliminary injunction against the Corps in the U.S. District Court for the District of Columbia based on NHPA § 106 claims. The Tribe noted that the pipe crosses ancestrally sacred lands, many of which have not been fully evaluated by Tribal archaeologists to determine the lands’ cultural and ancestral significance; they argued that there would be irreversible harm if the court did not grant the injunction. In September 2016, the court denied the motion and ruled that the Tribe failed to demonstrate that an injunction was warranted. In March 2017, the court again denied a preliminary injunction on the RFRA claims, holding that, though members of the Tribe may feel unable to use Lake Oahe’s water in religious ceremonies, the pipeline poses no specific ban on their religious practices.

DePountis made it clear that the court is evading the issue that the pipeline’s presence still violates cultural and spiritual tribal identity and undermines tribal sovereignty. Since the pipeline does not technically cross through tribal lands, the court concluded that the Tribe lacks a persuading religious or cultural legal argument. DePountis stated that it is extremely difficult to be successful on religious freedom claims.

Massive infrastructure projects such as the Dakota Access Pipeline have become such a stimulating case study for historians, scientists, economists, and a variety of other academics because of the complexity and nature of the affair. The legal debate over Dakota Access is multifaceted because it is, at its core, a water rights issue, but one that is encircled by a multitude of religious and cultural concerns. However, the most powerful laws the Tribe had on their side were the NHPA and RFRA, otherwise known by DePountis as the “look before you leap” laws.

At the end of the panel discussion I asked, “Even if the pipeline had planned to cross tribal land, would it have been possible to reroute the pipeline, or would it have been too late?” Professor Birdsong answered by saying, “If our country can extract buildings from the dust in the middle of a desert to develop a city [Las Vegas], then we can certainly re-route a pipeline at the expense of human justice.” This answer emphasized the fact that nothing is set in stone, and the government undoubtedly had the power to re-route the pipeline so that it could have avoided critical sites of historical significance. While the story of the “black snake” highlights significant failures in the United States legal system, the fight is not over. In many ways, the Dakota Access Pipeline has influenced attorneys and other legal academics to find new ways to litigate an issue like this so that Native Americans and other silenced minorities in the United States receive a fair opportunity to be represented in the legal system.

Haley McCullough


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

Protecting and Restoring Free Flowing Rivers

 

Presented by: Douglas W. Wolf, Center for Biological Diversity; Drevet Hunt, Lawyers for Clean Water; and Konrad Fisher, Klamath Riverkeeper.

This panel explored a series of legal tools available for attorneys to protect and restore instream flows.

To begin, Douglas Wolf discussed legal tools that the Center for Biological Diversity (the “Center”) and other organizations use to fight harmful seasonal flow diversions on the Gila River. Specifically, Wolf explained how the Center uses critical habitat of the endangered fish to protect Instream flow using the Endangered Species Act (“ESA”). The Gila River begins in an arid watershed in New Mexico. Heavy spring flows from snowmelt safeguard the river’s water quality. However, under a series of settlements and agreements, water users are allowed to store the heavy spring snowmelt from the Gila River and divert it for irrigation and other purposes. In addition to harming the Gila River’s water quality, diverting spring snowmelt harms the loach minnow, a tiny fish listed as a threatened species. To avoid being flushed down the river during heavy snowmelt, the loach minnow spends most of its time near the Gila River’s banks where the flow is less intense. But snowmelt diversions pose a risk to this habitat because the water gets diverted from these same edges of the river.

Wolf explained how the Center used the risk to the loach minnow’s critical habitat to help protect the Gila River’s instream flows. In 2009, the Center won a lawsuit against the United States Fish and Wildlife Service arguing that the previous designation of five hundred river miles of critical habitat for the loach minnow was insufficient. In 2012, The Fish and Wildlife Service not only designated 710 miles of critical habitat, but also listed the loach minnow as an endangered species. Saving the loach minnow’s critical habitat and adding it to the endangered species list helped protect instream flows in the Gila River.

The next panelist, Drevet Hunt, discussed three examples of litigation tactics used to restore instream flows: the ESA, California’s constitution, and the state’s fish and game code. First, Hunt discussed how petitioners sued under Section 9 of the ESA to increase instream flows on the Shasta River below the Dwinnell Dam in California. They argued the dam blocked historic runs of the endangered coho salmon and constituted an unpermitted taking. In 2013, petitioners settled with the dam’s operators, who agreed to obtain an incidental take permit and create a long-term flow and habitat restoration plan to encourage coho salmon populations.

Hunt next discussed how California attorneys use the state’s constitution to protect instream flows. In 2014, Lawyers for Clean Water used a section of the constitution that forbids waste and the unreasonable diversion and use of water to sue the State Water Resources Control State Board over the City of Buenaventura’s over-pumping of the Ventura River. Buenaventura’s over-pumping affected eleven endangered species and reduced local steelhead populations by ninety-six percent. This litigation is still pending, but the state has made some efforts in working to enhance Ventura River flows.

Third, Hunt explored how petitioners successfully used Section 5937 of California’s Fish and Game Code against dam operators to restore instream flows. This section of the code mandates that owners of dams “allow sufficient water at all times to pass . . . over, around or through the dam, to keep in good condition any fish that may be planted or exist below the dam.” In one example, a federal court even enforced this law against a federal dam operator, the United States Bureau of Reclamation.

Last, Konrad Fisher discussed the impacts of diversions on the Klamath River. Fisher began by discussing some fundamental changes he would like to see in how the public approaches water quantity issues. Fisher acknowledged that rivers provide food and recreation, create jobs, improve ecosystems, and play integral roles in human culture and religion. One way to protect those values, Fisher suggested, is to frame water diversions through percentages rather than total quantities. He argued the public would be more understanding of water quantity issues if, for example, water settlements apportioned seventeen percent of flows for fish. Fisher encouraged a cultural shift and a movement towards voluntary instream flow restoration as the only way to properly approach a long-term sustainable water use model.

Matthew Kilby

Image: Section of the Middle Gila River in Arizona. Flickr user Desert LCC, creative commons.


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon         March 2–5, 2017

Western Water and Livestock Production: A Destructive Past and Unsustainable Future

 

Presented by: Josh Osher, Western Watersheds Project; George Wuerthner, Public Lands Media; Julia DeGraw, Food & Water Watch.

This panel discussed the destructive impacts of large-scale cattle operations on landscapes and ecosystems. The panel focused on cattle grazing and industrial farming as some of the lead causes of environmental destruction in the American West.

Josh Osher spoke about the widespread damages caused by cattle grazing. Not only does cattle grazing affect more than two hundred million acres of land in the American West, but it has also contributed to the damage of eighty percent of streams and riparian areas in the region, which he described as “corridors for plant and animal species.” One way cattle destroy riparian areas is through “step-down,” which occurs when cattle walk over streams and incise stream or riverbanks. When cattle destroy banks, water channels become flat, which degrades instream flows and alters stream morphology. This, along with a reduction in water quality, can fundamentally change landscapes and eliminate local plant and animal species. Osher contended that the only way to prevent further degradation of western ecosystems through cattle grazing is to remove the cattle from the land. Once cattle are removed, he argued, lands have shown a surprising resilience and ability to rebound from substantial degradation.

George Wuerthner discussed how legislators and government agencies have failed to combat the cattle industry. Wuerthner highlighted this failure by exploring the Clean Water Act’s exception that allows industrial agricultural producers to operate without obtaining discharge permits, despite the fact that a single cow can produce up to one hundred pounds of feces in one day. He noted that cattle in Montana produce waste equivalent to a human population of 100 million. In addition to allowing the cattle industry to thrive without necessary environmental regulations, Wuerthner also discussed the disproportionate access the industry has to water. In Nevada for example, the cattle industry only provides some 25,000 jobs but it may take up to eighty-five percent of the state’s water. Wuerthner concluded his segment by imploring the attendees to fight this inequity by eating more fruits and vegetables.

Last, Julia DeGraw presented on how important it is for society to shift how we use water. To highlight this importance, DeGraw explored two mega-dairy farms, one in operation and the other slated for future operation, near Boardman, Oregon. The groundwater underneath Boardman has long been in decline, yet the combined dairy farms could withdraw an estimated 1.4 million gallons of water a day to support 100,000 cattle. This would not only severely affect local hydrologic conditions, but would also reduce local air and water quality. The cost of beef does not internalize its environmental destruction. To solve this conundrum, DeGraw, like Wuerthner, called on attendees to change their diet to help dismantle the industrial cattle industry.

Matthew Kilby

Image: Cattle at a watering hole near Conejos, Colorado. Flickr User Russ, Creative Commons.


35th Annual American Bar Association Water Law Conference

       Los Angeles, California                           March 29, 2017

The Future of Indian Water Right Settlements in an Age of Uncertainty

 

Jennifer Gimbel, a senior research scientist at Colorado State University, moderated the panel discussion entitled, “The Future of Indian Water Right Settlements in an Age of Uncertainty.” Gimbel began her introduction by acknowledging that certainty is the main goal when identifying water rights; states and water users want to know what belongs to Indians and how they want to use it. Gimbel introduced two of the most pressing sources of uncertainty—funding and resources.   Over the last few years, states “ponied up” a considerable amount for successful settlements. Nonetheless, states want to maintain control over water, making it difficult to determine how water rights should be administered.

Pamela Williams, Director of the Secretary’s Indian Water Rights Office in the U.S. Department of Interior (“Department of Interior”), began her discussion by quoting Secretary Ryan Zinke:

I believe Indian water right settlements are a critical part of the United States government’s responsibility for tribes across the country. During my time as a Montana congressman, I fought [to ratify] the Blackfeet Nation’s water compact because water is both life to the Tribe and also a key resource for the surrounding community. Not only is water an economic driver, it is an important component of [Blackfeet Nation’s] culture and traditions. As Secretary of the Interior, I recognize the importance of maturing these resources.

Williams then said that water right settlements are not over, they will continue. By Williams’s count, over the past thirty years, Congress enacted thirty-one settlements. The Department of Interior is “hard at work” on the eighteen settlement negotiations in place and are implementing the recently enacted settlements.

Williams continued by discussing the way in which the Department of Interior handles Indian water right settlements. A group called “Working Group on Indian Water Right Settlements,” which is composed of high-level decision makers, including all assistant secretaries and the Solicitor, makes recommendations to the Secretary of Interior regarding Indian water right settlements. The Secretary’s Indian Water Rights Office coordinates Indian water rights settlements through teams in the field that include representatives from, inter alia, the U.S. Bureau of Indian Affairs, the U.S. Bureau of Reclamation (“Reclamation”), the Solicitor’s Office, and the U.S. Department of Justice.

In 1990, the Criteria and Procedures for Participation of Federal Government in Negotiating for Settlement of Indian Water Rights Claims was published in the Federal Register. Williams clarified that these Criteria and Procedures are not regulations, but rather they are guidelines agencies and administrations follow to determine what settlements it will support and the extent of federal contributions. Since the 1990 publication, every administration has applied the Criteria and Procedures with varied interpretations. Williams acknowledged that some individuals think they are poorly written, while others think they are a masterpiece of flexibility.

Williams then discussed a recent development regarding negotiating water rights settlements. In February 2015, Representative Rob Bishop, Chairman of the United States House Natural Resources Committee, sent a letter to the Department of Interior and the Department of Justice outlining the process that the House Resources Committee would follow when entertaining Indian water rights settlements. Specifically, he requested a formal statement from the Department of Interior and Department of Justice affirming post-settlement compliance with his additional criteria that emphasize compliance with the 1990 Criteria and Procedures focusing on financial aspects of settlements. The Department of Interior complied and provided statements on binding water right settlements, including the four passed in the 114th Congress. Those four included Blackfeet Water Rights Settlement Act – a “tremendous victory” – Pechanga Band of Luiseno Mission Indians Water Rights Settlement Act, amendments to the San Luis Rey Indian Water Rights Settlement Act, and Chocktaw Nation of Oklahoma and the Chickasaw Nation Water Settlement. Williams noted the Bishop process is functioning—although it is not followed in the Senate, it is followed in the House.

Vanessa Ray Hodge, an attorney at Sonosky, Chambers, Sachse, Endreson & Perry, continued the discussion by focusing on the Criteria and Procedures applied to Indian water rights settlements. The 1990 Criteria and Procedures purport to guide Indian water rights settlement negotiations. Hodge noted that the sixteen criteria were developed in response to a Federal executive branch desire to have a more principled negotiating role and intended to outline general policy goals that water settlements should reflect. These include substantive goals such as federal waivers, legal claims, appropriate financial contribution (including federal government and non-Indian parties), and procedural goals such as how to budget the settlements, types of funds to create settlement, and calculating infrastructure cost.

At the time the 1990 Criteria and Procedures were developed, Congress passed few settlements. Indian water rights settlements significantly increased and, over time, the Department of Interior and Department of Justice developed a specific approach to their application of criteria and procedures for settlements. Hodge opined that Department of Interior generally applies those procedures to all Indian water rights settlements, notwithstanding factual histories or circumstances related to individual tribes and their specific negotiations. In that regard, Hodge believes that, although the 1990 Criteria and Procedures are useful, they should be updated to reflect a more holistic approach to Indian water rights settlements.

Maria O’Brien of Modrall Sperling in Albuquerque, NM, took a step back from the technical discussion and first asked, “Why should we care about Indian water rights settlements?” The answer, she said, “Start[s] with the premise that Indian water rights require a source and certainty of access to supplied water to sustain homelands and economic development.”

Indian water rights settlements play a significant role by acting as a mechanism for solving a “complex conquest over water.” Thus, O’Brien continued, irrespective of ever-changing administrations, we will continue needing Indian water right settlements. Conflicts over water are consistent, and a myriad tribes throughout the United States are still without water rights settlements.

Settlements allow flexible, creative approaches and solutions to issues involving infrastructure and water allocation—issues that could not be addressed by simply quantifying Indian water rights in the context of litigation. Settlements, as opposed to litigation, unite states, the federal government, tribes, and other significant water users, which can provide varied resources not limited to financial contributions, such as modeling resources and technical assistance. These broad contributions enable the settlements to move forward and solve disputes over Indian water rights as well as local concerns about the water supply in a way that is not possible when resorting to litigation.

O’Brien then discussed a recent success in Indian water rights settlement arena — Oklahoma’s first Indian water right settlement between Choctaw Nation of Oklahoma and Chickasaw Nation. Congress enacted this Indian water right settlement in December 2016, after five years of negotiation. It started with litigation, but Oklahoma and the Tribes decided to “roll up their sleeves” and reach a settlement. The federal government participated in the negotiation and was instrumental in its success. O’Brien considers every settlement to be unique, and in this one, Oklahoma and the Tribes needed work through policy issues that sourced their mutual conflict for many decades. Although settlements are unique, common issues do prevail, such as a mutual desire to reach a resolution and identify core principles at issue. It can take a substantial amount of time for parties to articulate their individual needs. Even so, settlements are favored over litigation because they encourage resolution rather that frame settlements as purely adversarial.

Next, Williams discussed the way in which the federal government funds these settlements. In 2009, from the same Omnibus Appropriations bill that enacted the Navajo Water Rights Settlement Act, Congress created a reservation settlement fund that is apportioned from the Bureau of Reclamation fund containing billions of dollars. The reservation settlement fund only applies to settlements with a Bureau of Reclamation component and does not relieve financial pressure on the Bureau of Indian Affairs. The reservation settlement fund is intended to last until 2029 and provide roughly $120 million per year for certain identified settlements. These include the Crow and Blackfeet Tribes in Montana that settled for roughly $400 million each, and the Navajo Tribe in Arizona that settled for one billion dollars.

Finally, O’Brien extended the dialogue by differentiating the types of available funding. She first explained that congressionally enacted settlements rely on discretionary funding which only authorizes appropriations for each individual settlement. This discretionary funding is given to the Bureau of Indian Affairs and the Bureau of Reclamation (when projects involve a water settlement component) when the agencies ask for funds in their programmatic budget to fulfill financial obligations when settlements are enacted.

On the other hand, the 2010 Claims Resolution Settlement Act provided mandatory congressional funding for Indian water rights settlements enacted under this statute. For Congress to appropriate mandatory funding, it must find a same-year offset, meaning Congress reallocates funding from one program into another needing the mandatory funds. One of the first Indian water settlements receiving mandatory funding was the Crow Tribe Water Rights Settlement Act, which is almost fully funded, unlike the discretionary funding for the Pechanga and Blackfeet Tribes water rights settlements which are funded over time.

 

Gia Austin

Image: Lake Powell and Grand Staircase-Escalante as seen from space. Flickr user NASA, not copyrighted.


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

Transboundary Water Issues: Challenges and Opportunities

Presented by: Eric Benjaminson, former United States Ambassador; Todd Jarvis, Oregon State University; Austen Parrish, Indiana University School of Law; Fatima Taha, Oregon State University.

This panel consisted of four panelists who discussed separate challenges that attorneys and other professionals face when solving transboundary water issues.

Todd Jarvis, a hydrologist and professor at Oregon State University, began the discussion by outlining six issues anyone working in transboundary water agreements should be ready to face. Jarvis began by explaining the issue of conceptual models, which can be important—especially for groundwater—as they help fill in the gaps for our imperfect knowledge of groundwater formations. The problem, he noted, is that professionals working in different countries often use incompatible conceptual models and thus cannot even come to a basic mutual understanding. Second, Jarvis addressed the scope of regional authority. Some countries allow local management, whereas others use national legal frameworks, and while transboundary issues suffer from political tensions, local management can be particularly political. Third, a lack of data can prevent countries from wanting to agree to solutions. Fourth, boundaries can change, which can compound other issues associated with transboundary water agreements. Fifth, Jarvis discussed how “dueling experts” can hold back transboundary water agreements. He noted that hydrologists in particular can often come to different results depending on who is asking them to make a specific finding. When experts fail to come to a consensus, politicians and other stakeholders can cherry pick data and use it to their advantage indefinitely. Sixth, Jarvis stated that transboundary water agreements are expensive to reach. Small issues can delay agreements by decades and cost millions of dollars.

Next, Eric Benjaminson, a former United States Ambassador to Gabon and to São Tomé and Príncipe and former United States Economic Minister Counselor in Canada, discussed how international disputes over Devils Lake in North Dakota reflect the challenges that professionals working in transboundary water disputes must face. Following a local plan to allow a spillway to help drain the lake during times of high water, an international fight began. The plan for Devils Lake would have had a negative impact in Canada, notably on Lake Winnipeg, the eleventh largest freshwater lake on Earth. The Canadian government opposed the plan for decades and believed that it violated the international Boundary Waters Treaty. In 2005, North Dakota constructed the spillway. To protect their interests, Canadian diplomats requested, among other things, that the United States submit the case to the International Joint Commission. The United States refused to do so, but it agreed to conduct some studies on invasive species that could spread as a result of the spillway. But for the United States, the fact that the federal government largely lacks jurisdiction over the lake making it more difficult fto intervene than would be the case with other lakes. Despite Devils Lake being relatively small, it has exhausted a massive amount of diplomatic energy between the United States and Canada.

Austen Parrish, dean of Indiana University’s Maurer School of Law, presented next, arguing that one way to solve transboundary water issues is to shy away from a model that encourages local authorities. He stated that small scale attempts to fix transboundary water issues invariably fail, and such challenges require large-scale and complex solutions. Local authorities can be hyper-political, and lose perspective of the end goal. To show how localized solutions are ineffective, Parrish discussed difficulties that the Confederated Tribes of the Colville Reservation faced when a Canadian mining company, Teck, polluted the tribe’s water supply. Teck intentionally discharged more than ten million gallons of slag and effluent into the Columbia River.

The tribe sued Teck under the Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA”) more than ten years ago. It is uncertain how CERCLA will apply across an international border. Despite Teck’s admission that it intentionally dumped slag and effluent, the tribe has yet to receive any payments or other remedy. The Confederated Tribes of the Colville Reservation won an award in federal district court last year, but the case is currently under appeal. The appeal will further delay any chance the tribe has at remedy. There are likely two ways that this litigation could conclude: the court could find Teck liable and impose massive fines under American domestic law, or there may be a diplomatic resolution between the two countries before the court reaches a decision. Regardless, what is evident is that old treaties and strategies to solve transboundary issues may no longer work. Without a transboundary agreement over actions such as Teck’s, it is much harder for United States citizens to seek justice. Parrish used this example to show how vital it is to have transboundary agreements that are respected at a high level of international policy. Without such an agreement, citizens are left to fight under domestic laws and uncertain precedents.

Fatima Taha, a graduate student at Oregon State University, concluded the presentation by discussing her research into resolving transboundary water issues. Taha has developed a live-action “serious game,” designed to encourage effective transboundary negotiations. In this game, players participate on teams of three. Each team represents a country and its three players participate as a head of state, an agriculturalist, and an environmentalist. Each country must work with other countries to coordinate the development of food grains, meat, dairy, and a healthy environment. This development is symbolized by each team’s accumulation of “notes,” which can represent water and commodities. Negotiations between teams can quickly fall apart through news of extreme drought or war. Overall, Taha’s game helps participants de-politicize issues and seek an equitable solution that makes sense for all parties involved. Taha believes the game’s simplicity and practical use—as well as the enjoyment its players report—add to the growing understanding that “serious games” can develop critical thinking among participants in ways that other experiences cannot.

Matthew Kilby

 

Image: Sunset at Devil’s Lake in North Dakota. Flickr user Jimmy Emerson, DVM, Creative Commons.