Where Whiskey is for Drinking and Water is for Cooperating Over. An application of the Institutional Analysis and Develo...

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Title: Where Whiskey is for Drinking and Water is for Cooperating Over. An application of the Institutional Analysis and Development Framework to the struggle over Pacific Northwest water allocation.
Physical Description: Book
Language: English
Creator: Dexter, Michael J.
Publisher: New College of Florida
Place of Publication: Sarasota, Fla.
Creation Date: 2011
Publication Date: 2011


Subjects / Keywords: Water Law
Water Allowcation
Pacific Northwest
Institutional Analysis and Deveopment Framework
Genre: bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: The allocation of water among multiple users has generated several water conflicts or "water wars" in the Western United States. The failure to cooperate over water resources has led many to criticize the property rights system in place under the doctrine of prior appropriation. However, such arguments neglect to consider federal recognition of tribal and environmental rights as a legitimization of stakeholders. The recognition of resource rights to multiple actors can facilitate a cooperative arrangement over water allocation. Through applying the Institutional Analysis and Development framework to four Pacific Northwest watersheds, this thesis argues that the primacy of hydropower interests negatively affects actors' ability to enact cooperative arrangements.
Statement of Responsibility: by Michael J. Dexter
Thesis: Thesis (B.A.) -- New College of Florida, 2011
Bibliography: Includes bibliographical references.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The New College of Florida, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Local: Faculty Sponsor: Alcock, Frank

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Source Institution: New College of Florida
Holding Location: New College of Florida
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Classification: local - S.T. 2011 D5
System ID: NCFE004372:00001

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Material Information

Title: Where Whiskey is for Drinking and Water is for Cooperating Over. An application of the Institutional Analysis and Development Framework to the struggle over Pacific Northwest water allocation.
Physical Description: Book
Language: English
Creator: Dexter, Michael J.
Publisher: New College of Florida
Place of Publication: Sarasota, Fla.
Creation Date: 2011
Publication Date: 2011


Subjects / Keywords: Water Law
Water Allowcation
Pacific Northwest
Institutional Analysis and Deveopment Framework
Genre: bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation


Abstract: The allocation of water among multiple users has generated several water conflicts or "water wars" in the Western United States. The failure to cooperate over water resources has led many to criticize the property rights system in place under the doctrine of prior appropriation. However, such arguments neglect to consider federal recognition of tribal and environmental rights as a legitimization of stakeholders. The recognition of resource rights to multiple actors can facilitate a cooperative arrangement over water allocation. Through applying the Institutional Analysis and Development framework to four Pacific Northwest watersheds, this thesis argues that the primacy of hydropower interests negatively affects actors' ability to enact cooperative arrangements.
Statement of Responsibility: by Michael J. Dexter
Thesis: Thesis (B.A.) -- New College of Florida, 2011
Bibliography: Includes bibliographical references.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The New College of Florida, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Local: Faculty Sponsor: Alcock, Frank

Record Information

Source Institution: New College of Florida
Holding Location: New College of Florida
Rights Management: Applicable rights reserved.
Classification: local - S.T. 2011 D5
System ID: NCFE004372:00001

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Where Whiskey is for Drinking a nd Water is for Cooperating Over. An application of the Institutional Analysis and Development Framework to the struggle over Pacific Northw est water allocation. By: Michael Dexter A Thesis Submitted to the Division of Social Sciences New College of Florida in partial fulfillment of the requirements for the degree Bachelor of Arts Under the sponsorship of Dr. Frank Alcock Sarasota, Florida May, 2011


Dedication: This thesis is dedicated to my mother, Mary Jane and my sister, Jacqueline. My current sense of amazement and appreciation of the natural environment was a result of the multiple road trips across the country. Thes e experiences have ins tilled within me the desire in, and dedication to, preserving the environment. Furthermore this dedication is extended to my late grandfather, Poppa Bill, for it was from you that I gained an admiration of American history a nd an appreciation of academia. ii


Acknowledgem ents: A special thank you goes out to all of my friends at New College. The New College experience, aptly described as an expe rience of a lifetime, is one that I will not soon forget. A personal thank you must go out to the many friends to which have shared the trials and tribulations of being a thesis student. I especially want to thank Dolan Cochran, Tom McKay, Rikki Miller, Chris Pe derson and Nicole Whalen for spending many days (and nights) in Dort 104, the SSR L, or the library preparing for the culmination of our New College of Florida e xperience. Thanks also goes out to the guys always willing to play soccer or flag footba ll teams as these activities were integral for me to remain sane in the face of lifes stress. A further thanks goes out to the many friends from Sarasota that I gr ew up with and the impact that you have all had on my life. A special thanks to Dr. Fr ank Alcock, my thesis sponsor who remained with me despite being oceans apart. I thank Profe ssors Fitzgerald, Weber and Calvert for providing constructive criticism and support while on my Baccalaureate Committee. I am truly honored at the diversity of discip lines and experiences that each one of you brings to the table. I woul d also like to thank all of my professors at New College, especially Dr. Meg Lowman, for preparing me for a career in the environment. Finally, I would like to thank my entire family for always being there for me. I would especially like to thank my mother and sister for raising me to become the man I am today. I would furthermore like to tha nk my grandmother, Jane, and grandfather, Poppa Bill, for always providing a nice refuge from the stress of daily life. A thank you goes out to my father for the many experiences we have shared. Last ly, I would also like to thank Roland Dexter for his impact on my life, through him I have learned to never become complacent and to always strive for being better. iii


T able of Contents: Dedicationii Acknowledgements....iii Abstract........1 Introduction......2 Table 1: Overview of Terms9 Chapter 1: Institutional and Collective Action Theory:................10 Description of Terms.....11 What is a common pool resource... Table 2: Types of Goods........14 Property rights, rules and resources...15 Table 3: Rights and Abilities: ...17 Table 4: Bundles of Rights: .. Elinor Ostrom and Nepal Irrigation Institutions....19 Institutional Analysis an d Development Framework....20 Table 5: Institutional Analysis and Development Framework......21 Resource Boundary...21 Monitors are Accountable to the Appropriators....22 Graduated Sanctions Against Violators.....23 Modifying Operational Rules........23 Rules Congruent to Local Conditions Conflict Resolution Mechanisms.......24 Recognition of the Right to Organize.... Nested Enterprises.....26 Western Public Administration.....27 Chapter 2: Western Water Law. What Constitutes Beneficial Use...30 Administration of Water Rights....32 Brief History of Federal Invol vement in Western Water.. Tribal Rights..38 Chapter 3: Case Studies.....41 The Dungeness River.41 Tribal Actors within the Dungeness River.....42 Irrigation within th e Dungeness River...43 Initiation of a C ooperative Institution....44 Dungeness River Chelan Agreement.....45 Components of a Collective Institution..... Long Term Outcome of the Agreement.....51 Review of the Case....53 The Snake River....54 History of the Snake River Irrigation...55 Committee of Nine....57 History of the Snake Rive r Tribal Interests....... iv


v 2005 Agreement and Collabo rative Management.....60 The Nez Perce Snake River Water Act..,,, Settlement Criteria....60 Long Term Outcome of the Agreement....63 Table 6: Cooperative Case St udies and their Attributes...65 The Yakima River. Tribal Stakeholders...66 Consumptive Use Stakeholders History..69 Chelan Agreement and Failed Attempts to Cooperate.70 Conflict Rather than Cooperation.71 Current Status...72 The Klamath River...75 Overview of Relevant Stakeholders.75 Bureau of Reclamation.75 Tribal Stakeholders...76 Termination Act Tribal Rights.77 Irrigation Klamath Wate r Users Association Conflict.. Current Action...83 Table 7: Conflict Prone Ca ses and their Attributes...85 Chapter 4: Discussion and Analysis.. IAD Framework and Analyzing of the Cases....88 Component 1: Boundary of a Resource.....88 Components 4 and 5: Monitori ng and Sanctioning Violators...90 Component 6: Access to Conflict Resolution Mechanism....92 Component 7: Recognition of Rights to Organize.93 Component (8): Size, Scale and Nested Enterprises......94 Components 2 and 3: Rule Congruency and Collective Choice....96 Federal Hydropower Dams and Their Affect on Collective Action.. How Dams Alter Righ ts in Practice. Snake River Interplay.. How Alteration Affects Conflict Levels..105 Conclusion... Limits of Research and Prosp ects for Future Investigation. Table 8: Watershed Attribute Comparison..110 References...111


Abstract: The allocation of water among multiple users has generated several water conflicts or water wars in the Western United States. The failure to cooperate over water resources has led many to criticize th e property rights system in place under the doctrine of prior appropriation. However, such arguments neglect to consider federal recognition of tribal and envi ronmental rights as a legitimization of stakeholders. The recognition of resource rights to multiple acto rs can facilitate a cooperative arrangement over water allocation. Through applying the Institutional Analysis and Development framework to four Pacific Northwest watershe ds, this thesis argues that the primacy of hydropower interests negatively a ffects actors ability to enac t cooperative arrangements. In comparing four cases, this framework isolates the operational component of dams and the detrimental effects it has ove r localized rights of management. In successful cases of cooperation, multiple acto rs were found to have the ability to collectively organize and ma nage the watershed through cooperation. However, this cooperation of stakeholders was not found where dams operated in dominance to stakeholder interests. Stakehol ders inability to cooperate fo rces the addressing of claims through alternate means thus providing an explan ation for the high levels of conflict seen within these cases. Dr. Frank Alcock Division of Social Sciences 1


Introduction The quote, In the American West, whiskey is for drinking and water is for fighting about, has become synonymous w ith the infighting over water allocation between environmental and consumptive uses. Th is quote, originally attributed to Mark Twain, has been recited countless times in rationalizing the conflict so often seen over water appropriation and apportionment in the western United States This quote seems to suggest that due to scarcity relative to demand, conflict ove r the use and distribution of water in the west is an inevitable occurrence. However, regardless of property rights and allocation processes the west has often seen allocation outcomes di verge in regards to cooperation and conflict over th e resource. This thesis will seek to understand why certain areas have found success in cooperative agreements while others have degenerated into confli ct prone situations. The late 19th century saw an attempt to mitigate tension by allocating property rights through the doctrine of pr ior appropriation. This doctrine initially yielded benefits of ownership; however, it has since been faulted for inadequately evolving to accommodate social concerns over environmental and tribal water rights. The increase of actors have led to a tension over the res ource between traditional consumptive uses, predominantly irrigated agriculture, against envi ronmental requirements and tribal rights. Disagreements between consumptive and environmental/tribal property rights have increasingly found publicity as water wars. These water wars or resource use conflicts have often manifested in social, ethnic and civil contention between uses and user groups. However, while many regions have seen conf lict precipitated by litigation rather than cooperation, the trait is by no means univers al. Conflict while often generating between 2


actors ov er water allocation has, by no means, become a universally absolute and inevitable outcome. While scarcity has created tension, many cases have instituted ways to collectively manage the resource. This thesis explains that the conflict in water allocation in the West is due to the inability of stakeholder groups to collectively manage their own resource. A vast amount of literature has focused primarily on the intricacies of the property rights dynamic of prior appropriation to expl ain the conflict and c ooperation in the west (Truner 1997; Zellmer 2009). These studies ta rget the underlying property rights doctrine and attribute subpar outcomes to expected inefficiencies in water use and legitimacy of users. This thesis however will not delve into the legitimacy of stakeholders, nor the individual incentives incorporated within stakeh older groups. Instead this thesis will treat stakeholders holistically by grouping based on us er type. These groups are then defined as the beneficial use traditional consum ptive stakeholders, and the non-traditional environmental and tribal stakeholders. Consumptive uses are those us es that have historically been allocated property rights and are traditionally qualified as be neficial uses under th e prior appropriation doctrine. The term traditional or consumptive us er is meant to refer to the heterogeneous stakeholder group reliant upon st ate sanctioned property righ ts to pursue allocation claims. This group encompasses common sub-gr oups such as municipalities, irrigators, as well as commercial water uses. Inherent within each group, however, is the consistent claim of self interested pres ervation of property rights acco rding to the hierarchy under prior appropriation. Collectively the other two major stakeholders, tribal and environmental rights, are often in agreement with the desired outcome of leaving water 3


in-stream for environmental and cultural purposes. However, th ese two stakeholder groups are differentiated due to the agricultu rally developed nature of some tribal reservations. Within some of the cases trib es may utilize reserved water rights not only for environmental purposes but also for cons umptive uses. Howeve r, such distinction along this line is irrelevant due to the consistency among tribal claims for instream usage of water. The rationale for the holistic dis tinction between, consump tive use, tribal and environmental rights is that each group is qui te resolute and uniform in their "fight" against another for use of stream water. The thesis also deliberately avoids the incorporation of recrea tional "users" of rivers and othe r interests that do not "claim" water but rather claim a right of access to use the resources intrinsic to the stream flow. Conflict and cooperation will be operationalized in order to distinguish a concrete definition from abstract values and in doing so the cases will be dichotomously polarized. Conflict is defined as the realization of actors that an adequate outcome through collective bargaining is infeasib le, thus necessitating a level shifting strategy to address their concerns. Level shifti ng is a stakeholder action upon wh ich they seek to deviate from the established arena in order to best achieve a self interested outcome. Such a strategy may involve litigation fr om stakeholders to shift the level of interaction from a local arena to that of the centralized government in order to enact compulsory procedural rules. Cooperation is defined as the ability of actors to co ordinate and negotiate over the resource to come to a mutually beneficial outcome. While coopera tion is often idealized as peaceful, in reality, cooperative agreements may use the threat of level shifting (i.e. litigation) to spur the success of colla boration (Colby 1990, 21). 4


This argum ent will highlight how the current doctrine of prior appropriation and its deficiencies does not preclud e cooperation in the west. This stance is in contrast to literature focused on the individual actors a nd the inherent perverse incentives which has highlighted by Tarlock et al 2007, and prominently argued by Nueman 1998. Instead this thesis assumes that western watersheds are inherently a common property resource that under th e right circumstances are ripe for collective institutional development. The claim attributes the dete rminant over success or failure to a variable outside the common allocation dilemma (e.g. an innocent bystander in the allocation debate). This bystander in the allocation fight is the operation of hydropower dams on the river. Hydropower dams are often ideali zed for their water st orage potential or criticized for their environmental externali ties. However, their involvement in water allocation fights often go overlooked. This th esis will argue that hydropower interests and operational control over river flow pr ecludes the ability for stakeholders to collectively organize cooperati ve agreements over water al location. This thesis will claim that the negative outcomes witnessed are due to imposed hydropower operation disrupting the ability for stakeh olders to cooperate in a reciprocal manner to manage the resource. This claim is made through looking at em pirical evidence in four case studies watersheds. The prior appropria tion doctrine states that all water rights are to be assessed based on natural water basin location and thus watersheds will serve as the focal level of analysis. These natural and legal dis tinctions will serve as an effective basis on which to select cases. Each of the four cas e studies are located in the Pacific Northwest and will ascribe to the basic underlying propert y rights doctrine of prior appropriation. 5


The case s tudies are analyzed through using the Institutional Analysis and Design (IAD) framework devised by Elinor Ostrom and the Indiana University Bloomington School. This framework will focus on the issues by looking at a single arena, that of appropriation of stream water between interests. This specification is meant to separate river water allocation from othe r arenas in order to provide a specific scope of interest. In doing so the allocation of water is separated from other co nflict prone arenas, such as, groundwater appropriation, which is subject to a different property right system and water quality, which is affirmatively a public good. This thesis uses the framework to diffe rentiate stakeholder ability to modify operational rules between the cooperative and conflic t prone cases. Through using the static underlying property rights of prior appropria tion this thesis attributes the change in the dependent variable (conflict) to that of the independent va riable (hydropower operations) on the river. The claim of this thesis can be mirrored with the work upon which Ostrom based the IAD framework. That work which showed the detrimental affect of newly imposed government authority on former irrigation cooperatives in Nepal. The Nepal case showed that the government authority undermined previously successful management regimes and this outcome is comparable to the role of dams in the West. This thesis will differ though from previous work s as the level of inte raction is viewed at the watershed level and incorporates oft neglect ed resource uses as legitimate resource consumers. While government has long been imposing rules on western watersheds, the majority of government policies have sought to accommodate for asymmetries in the recognition of actors rights. Particularly, the governme nt has been active in many 6


polic ies to legitimize the rights of "paper" water users, that being both environmental and tribal rights. Thus through endangered species legislation and judici al determination of tribal rights components have evolved to legitimize environmental and tribal stakeholders. The source of the disrupti on is rather federal policy as related to hydropower management. The causal factor by hydropower operation precipitates conflict is attributed to the theoretical alteration of st akeholder "property rights." This altered property right structure subsequently necessita tes the addressing of stakeholder claims to a higher bureaucratic level. Such redressi ng of claims and concerns at a polycentric bureaucratic level is then only possible through what is seen as conflict. This thesis will be separated into four distinct chapters. The first chapter will provide a literature review in which theori es over collective acti on and collaboration are detailed. This chapter will also include a th eoretical discussion of what components are necessary for stakeholders to manage a resource system and what components effectively impede that ability. This chapter will also address the Institutional Analysis and Development framework under which the cases are analyzed. The second chapter will provide a brief in troduction to the property rights system implemented within the western United States Specifically, it will differentiate between the riparian doctrine evident in the east ern United States and the Wests prior appropriation, outlining what makes the latter a novel and unique system. Chapter two will conclude with how the property rights sy stem is implemented within the region as well as a discussion of federal involvement and the stakeholders within the system. Chapter three will be separated in order to provide a brief history and overview of each of the four differing case studies. Th e four case studies, the Klamath River, the 7


Dungeness River, the S nake River and the Ya kima River are separa ted by their success and failure in self management of a resour ce system. Furthermor e components of each case should be identifiable as contrasting w ith components of anot her case study in order to compensate for variables. While this thesis incorporates four selected case studies from a single region in the west, the Pacific No rthwest, the outcomes of the cases should not be attributed to this specific region nor should they be faulted for selection bias. The basis for inclusion of four cases within the same western region was to minimize any regional bias, maintain a static underlying legal framework to the prior appropriation doctrine as well as isolate the intended variable necessary for the research. Chapter four discusses the attributes and outcomes of each of the case studies and highlights the relevant concepts. In addition to a simple discussion the chapter will seek to empirically isolate the independent variable and attribute the outco me to the dependent variable. A section of this chapter will addr ess the results of the thesis and will present relevance to the information and why this outcome is not simply an anomaly. This chapter will conclude with the relevance to the future that such research has and what further research would be warranted. 8


Overview of Terms: Institution: An enduring regularity of human action st ructured by rules, norms, or shared strategies and the realities of the physical and biological world. Institutions include families, churches, government agencies, and most organizations since they are frequently defined in terms of rules, norms, or shared strategies. Institutional analysis: The process of analyzing the design and performance of an institutional arrangement. Institutional arrangement: The structure of the relationships between the institutions involved in some type of common endeavor (action arena). Polycentric institutional arrangement: One that has multiple centers of shared or overlapping authority. Hierarchical institutional arrangement: One that has a clear hierarchy of author ity. It could place authority at the top (centralized) or the bottom (de centralized) of the hierarchy. Action arena: Those individuals or organizations that make decisions based upon information about how actions are linked to possible outcomes and the different costs and benefits attached to actions and outcomes Rule: Prescription that forbids, permits, or requires some action or outcome and the sanctions associated with failing to follow a rule. They can be formal (e.g., laws, policies, regulations, etc.) or informal (e.g., behavioral norms). Operational rules: Decisions about when, where, and how to do something, who should monitor the actions of others, how actions should be monitored, what information should be exchanged or withheld, and what rewards and sanctions will be assigned to combinations of actions and outcomes (e.g., appropriation, provision, monitoring, and enforcement). Collectivechoice rules: They influence operational activities by de termining how operational rules can be changed and who can participate in these decisions (e.g., policy-making, management, and adjudication). Constitution al-choice rules: They influence operational rules by determining who is eligible to participate and collective choice rules by determining how they are changed (e.g., governance and modification of constitutional decisions). (Table 1; Imperial 1999, 5) 9


Chapter 1: Institutional a nd Collective Action Theory This chapter will focus on a theoretical discussion of institutions and their role in managing common property. In approaching the study with a rational choice theory this chapter will focus not on individuals but rather the overarchi ng scope of actor interests. Including a broad overview of the Rational Choice institutionalist theory, this chapter will delve into collective action problems and institutional development. Drawing on a vast theoretical framework of common pool resource and collect ive action literature, this will highlight the components upon which propert y rights and institutions are formed. This thesis overall will draw extensively on the Institutional Analysis and Development framework established by Elinor Ostrom and thus will receive focus within this chapter. The overall thesis argument is approached through a theo retical lens of Rational Choice theory. Rational Choice Theory as well as Sociologic al and Historical institutionalism are the three differing pers pectives on New Institutionalism (Koelbe 1995, 232). Rational choice theory as a theore tical construct seeks to bridge the gap between economics, sociology and political scie nce. This is achieved through providing a lens wherein actor motivations are used to explain patterns of behavior. The institutionalists who rely upon this theory assume that individual actors abide by strategic calculations [and thus should be] the central conc ern of social science (Koelbe 1995, 232). This theory has achieved acceptance by many due to its proficiency in normative description explanati ons, its simplicity and applicab ility to situations and its reliance on a simple code of utility maximization, which is familiar to cross-discipline researchers (Hernstein 1990, 2). The task of rational choice theory is to provide a coherent explanation of the emergence and persistence of cooperative behavior and 10


collective action, which, in tur n, explains the em ergence of cultural and social norms and institutions (Koelbe 1995, 240). The ave nue to which Rational Choice Theory is applicable to this thesis originates in the theorys applicability to stakeholder behavior and collective action problems. Description of Terms: A collective action problem is a situati on wherein an individual s self interested action will affect other members of society in an overall detrimen tal affect. This sort of situation is dealt with ofte n and within this research is explained through the Tragedy of the Commons" where individual incentives generate detrimental outcomes. Garrett Hardins famous article Tragedy of the Commons received widespread notoriety due to the proposition that overu se and exploitation of a common good is inevitable. This theory, while not exactly novel in academia, received widespread recognition due to the applicabil ity of the theory to recogniz e environmental problems. Hardins theory was first postulated to repr esent the overall pressure that humans were inducing on the environment through population gr owth; but has since been applied to a range of environmental resource problems. While Hardin premised the inevitability of a negative outcome, other scholars have argued th e concept is flawed and that cooperative behavior can manage the resource. The distinguished theorist Elinor Ostr om has supported the idea that cooperative behavior through institutions can effec tively govern and manage a commons sustainably. Institutions, or ru les that influence behavior, are all encompassing as they may be legally codified as laws or could simply be a normal standard procedure that lacks backing in law (Polski 1999, 2). Rules generally dictate who has rights of access to 11


a resource, where those rights refer to, as well as the corresponding actions that can be utilized with that resource. The definition of a rule posed by Ostrom within her seminal work Governing the Commons is that institutions are th e rules that people develop to specify the dos and donts related to a par ticular situation. Furthermore she stated that institutions define the intricacies of a res ource system and inevitably affect what rights develop for use of that resource. A rule "specifies both the ri ghts as well as the countervailing duties to obser ve the right. (Schlager et al. 1992, 250) In order to understand the way in which rules can lead to sustainable management the term sustainable must be defined. In general, this thesis views sustainable management as the ability of stakeholders to efficiently alloca te water that accommodates all interests. Thus sustainable governance management lies apart from the sustainable management of the resource. However the thesis is relevant to management as it believes that a sustainable institution could essentially lead to such a sustainable common pool resource. What is a common pool resource? At the heart of the tragedy of the commons and problems in natural resource management is the concept of a common pool resource. Broadly defined there are four categories under which goods can be categorized: Public, Private, Club and Common Pool. Each type of good is differentiated by the level of subtractability and degree of exclusion possible. Each type of good is attributed with a high or low degree of the component of exclusion and subtractability. Subtractibility refers to the incremental degradation of a resource as use increases, for instance consumption of water from a river will (how ever minutely) alter the amount of water which is available fo r others downstream. T hus the use of the 12


resource by one actor leads to a lesser am ount of that resource available for every other actor. The concept of degree of ex clusion refers to the ability to physically or legally limit the beneficiaries of a resource, for instance, a barbed wire fence will effectively exclude all other cattle from an enclosed pasture, t hus delineating resource extraction on that land to solely the owner. Of the four types of goods a public good is characterized by low subtractability and difficult exclusion of actors, the archet ype example of which is national defense. National defense is an oft cited public good as every actor benefits no matter their "use" of it. The rationale is that "use is not truly affected by the amount of individuals (subtractibility) nor is there an ability to limit be neficiaries to only those who support it (exclusion). A private good is the polar opposite as it is attributed with high levels of subtractability with relative ly easy exclusion opportunity. The next type of good has several names yet the most common are cl ub, communal or toll good (Ostrom et al. 1994, 6). An example of this sort of good can be visualized through a c ountry club or exclusive area where there is low subtractability of a good to use yet exclusion of foreign actors is easy. The final good and the one that has the most relevance to the focus of this paper is a Common Pool Resource. This good is charac terized by a high subtractability and relatively difficult exclusion (Ostrom et al. 1994, 7). 13


Table 2: Types of Goods : Subtractibility/Exclusion Excludable Non-Excludable High Subtractibility Private Good: example Personal Property Common Goods: example Natural Resources Low Subtractibility: Toll Good: example Country Club swimming pool Public Good: example Public Defense Common pool resources and the trage dy resulting from a high cost of exclusion and high level of subtractability have become a popular explanation for natural resource problems, receiving notoriety within both academic literature and public opinion. Current literature however s upports the idea that a true commons or common property can actually manage itself effectively and rath er a Hardin commons is the result of an open access good, where individual actors are unable to collectively organize around a resource. Such thought is the basis of th e theoretical framework of common property regimes and institutional development of wh ich will be covered within this chapter. The rationale for the tragedy of the comm ons lies within the realm of hidden or unabsorbed costs by the users of the resource. Each resource user of a commons will fully benefit from their own consumption of a resource yet shar e the cost of over extraction evenly among all actors. Thus the tr agedy of the commons is the over use of a public good because users do not suffer the full cost of their consumption (Ostrom 1990, 55). Common examples of property that often are attributed to suffer a Tragedy of the Commons are goods that are 1) owned by the government ; 2) property owned by no one or 3) property owned and defended by a commu nity of resource users (Schlager et al. 14


1992, 249 ). Natural resources such as water and forests as w ell as fishing grounds are often qualified as common pool resources and th us attributed with being a common-pool resource problem. The problems associated with open access goods and specifically the failures to exclude actors provide rationale for the assignment and implementation of property rights. Property rights, rules and resources: Property rights, or another form of actor recognition, can prove instrumental in facilitating effective institutional devel opment. Current literature on common pool resource management highlight the necessity of property rights to be conducive to cooperative behavior by stakeholders in hopes of achieving a sustainable resource use. The cases of the Nepal irrigation system coope ratives identified by Elinor Ostrom gained notoriety for their success, and failures, in resource management. The basic component of this success lies with their ab ility to mitigate the problems of a common pool resource by managing their own resource. Property rights ar e formed as an effective way to instill ownership and responsibility over a resource. Property rights in general orig inate from resource users, collective bargaining or through legal instruments. They are by definition either attributed to de jure rights, those held through legal instrument, or de facto rights, those held by precedent and assumed order (Schlager et al.1992, 254). De facto rights while secure in their own right through established order are considered less secure as, until they are challenged and upheld in law, they lack substantive recognition. Property, as a social institution, allocates rights and obligations to social actors in order to regulate the use of objects (Salazar 1988, 3). A pr operty right is the authority 15


to undertake particular actions related to a specific dom ain"( Schl ager et al 1992, 250). The basic tenants of property rights are di vided between access a nd withdrawal rights; access being the right to enter a physical proper ty whereas withdrawal refers to the right to obtain the products of a resource (Schlage r et al 1992, 250). Other rights that can be associated with property are that of manage ment, exclusion, and alie nation; all of which are important to governing the commons. Th e right of management is the right to regulate the internal use pattern s of a particular resource. Ex clusion relates to the ability for an actor to determine who will have acces s to the resource. Alienation confers the right to sell any of the afor ementioned collective rights (S chlager et al 1992, 251). While these are the rights that institutions often confer, the actions by which actors may take are related to what rights they possess. There are three types of actions that stakeholders are able to exercise; operational, collective and constitutional choice actions. Operational level action generally refers to the simple observing or exercise of a possessed right. Operational level action when applied to the actual rights incorporates the ability of withdrawal and access from the resource. These rules allow individuals to create a strategy by which future action is planned and are altered by collective choice actions (Ostrom 2003, 250). Collective choice ac tion relates to the defining of how all further rights are developed, specifically they modify operational rules. Collective choice actions, in terms of associated actions, however retain the ex tra right of management. All of the aforementioned rights plus the right of exclusion, and alie nation are the rights associated with Constitutional choice action (Schlager et al. 1992, 251). Constitutional choice actions entail devising collective choice rules thereby establishing organization. 16


Together these three action proces ses and the five encompassing rights communally represent the Property Right Bundles of which much legal theory is based upon. Different Bundles of property rights, wh ether they are de facto or de jure, affect the incentives individuals face, the types of actions they take and the outcomes they achieve (Schlager et al 1992, 250). Ostrom cat egorizes the four types of users that hold a variety of the operational and collectiv e choice rights. These are the rights of: access and withdrawal, management, exclusion, and alienation. The four types are: an owner, a proprietor, claimant, and authori zed user. Each right corresponds to a legitimized action which is discussed in the following table. These rights are often associated as a bundle and are used to describe the abilities and opportunities evident within an established property right. Table 3: Right: Corresponding Ability: Access: Right to enter a defined area and enjoy its benefits without removing any resources. Withdrawal : Right to obtain specified products from a resource system and remove that product from the area for proscribed uses. Management : Right to participate in decisions regulating resource or making improvements in infrastructure. Exclusion : Right to participate in the determination of who has right of access or withdrawal or management. Alienation : Right to sell, lease, bequeath, or otherwise transfer any of the preceding component rights. (Source: Michael McGinnis 2011, 7) An owner holds all aforementioned rights; thus he can access, withdraw and manage a resource as well as exclude and al ienate other actors. The proprietor however holds all rights except for the right of a lienation. The claimant holds both access and withdrawal rights as well as management over the resource. The authorized user only holds operational rights in the form of access and withdrawal rights (Schlager et al. 1992, 252). While the tragedy of the commons provides a powerful argument for property 17


rights it also shows the benef it and advantage of cooperativ e behavior which can alter established rules (Ostrom 1990, 46). Table 4: Description: Action Ability Bundle of Rights: Authorized User Operational Level Access and Withdrawal Claimant Operational Level Access and Withdrawal; Management Proprietor Collective Choice/ Operational Level Access and Withdrawal; Management; Exclusion Owner Constitutional Choice/ Collective Choice/ Operational Level Access and Withdrawal; Management; Exclusion; Alienation (Source: Michael McGinnis 2011, page 7) As collective choice actions can change operational rules it is important to note how exactly this interaction occurs or develops. Cooperati ve behavior and collective action can be utilized to alter operational rules in order to overcome a Hardin-esque tragedy of the commons. Cooperative behavior can impact operational conditions and are as apt to be devised in a local meeting place, even a tavern, as they are in court, a legislature, or a governmental bureau (Schlager et al 1992, 250). Cooperative behavior has an increasing am ount of literature detailing its success, and failures. Mancur Olson and Elinor Ostrom are two of the more well known academics that have highlighted the various factors to which influence the ability for collective action scenarios to develop. Ma ncur Olson historically focused on the individual grouping of actors and the inner-workings of cooperation within a group. The literature surrounding group size is quite vast and Olson argued that social pressure can operationalize as an enforcement mechanism fo r cooperation. However he suggests that it is only successful in smaller groups. 18


Unless the num ber of Individuals in a group is quite small or unless there is coercion or some other special device to make individuals act in common interest, rational self interested indivi duals will not act to achieve their common or group interest (Olson 1971, 2). While Olsonian logic dictates that large-sc ale and large actor encompassing institutions are unlikely, further literature assumes that institutions can and will be devised to deal with the inefficiency of large numbers. One such author that has largely discounted the idea that scale is critical to institutional formation is Elinor Ostrom. Instead Elinor Ostrom has outlined a framework composed of several attributes that characterize most successful collective choice inst itutions. Ostrom discovered and outlined the concepts from researching irrigation cooperatives in Nepal. Elinor Ostrom and Nepal Irrigation Institutions: Ostroms work on analyzing resource use in Nepalese irrigati on systems resulted in the formulation of the modern day Institutional Analysis and Development framework. Ostroms research focused on several Nepa lese irrigation systems, which were under either local control or newl y established centralized development. Ostrom found the newly government managed systems were less efficient overall in comparison to their previous states under collective management Ostrom held responsible the central government imposition of rules as it had di sregarded localized norms and undermined already formulated localized rules. When put into operation the government managed systems may have seemed technologically s uperior and more developed however were masked by a general inefficiency in water management by subsuming the power previously held by local stakeholders. 19


This thes is will form a similar claim to that employed by Ostrom to explain the inefficiencies in government headworks of Nepa l. This thesis will not only correlate the failure of institutions in the west to extended governmental influence, but also show how governmental interference through prioritizi ng dam operation actually causes a similar ineffectual outcome to that which was noticed in Nepal. United States federal licensure and water control actually l eads to the same ineffectua l outcome as governmental development programs in Nepal. Ostrom found within Nepal a systematic dissolution of locally crafted institutions where government interference actively impeded collective influence (Ostrom Revisiting the Commons 1999, 5). While Ostrom contends that technological improvements can contribute to collective institutional formation; the contention within this thesis is that any su ch gains in knowledge are vastly outweighed by the impediment to institutional formati on by stakeholders (O strom Revisiting the Commons, 8). Similar to the outcome of the Nepal irrigation collectives, western water law has seen a deficiency arise within the Institutional Analysis and Development framework, one that helps explain the occurrence of conflict in the west. Institutional Analysis an d Development Fram ework: Elinor Ostrom has been one of the more respected authors in detailing what aspects of the resource and stakeholders are commonly found in successful institutions. Her work as part of the University of I ndiana Bloomington School was instrumental in the development of the Institutional Analysis and Development framework. Ostrom defines the characteristics for effective coll ective action through the Institutional Analysis and Development (IAD) Framework. This fram ework has become the standard to which many Common Pool Resource problems are gauge d through. The attributes incorporated 20


within the IAD fra mework not only describe indi vidual actors but rather are applicable to the broader aspects of the resource system. Ostroms seven primary design principles, as well as the supplemental condition, are covered in table 5. These eight total criteria cover a scope of the factors which are perceived to be beneficial to stakehol ders ability to self manage a resource, through institutional formati on. Each one of the f actors is dealt with in order to highlight their importance to better understand the western watershed's conduciveness to institutional formation, which w ill be tackled in the fourth chapter. Table 5: Ostrom's Institutional Analysis and Design Framework 1 Clearly defined boundaries 2 Rules congruent with local conditions 3 Individuals affected can participate in modifying operational rules 4 Monitors are accountable to the appropriators 5 Graduated sanctions against violators 6 Ready access to conflict-resolution mechanisms 7 Recognition of rights to organize, by external government authorities (8) Nested enterprises, where the res ource is part of a larger system Source: (Koontz 2003, 7) Resource Boundary: The level of exclusion within a resource often stems from natural factors such as resource boundaries or breadth of scale of the resource. A well bounde d resource restricts both boundaries on the resource system as we ll as jurisdictional boundaries on actors. However clearly defined group boundaries are also needed fo r exclusion of actors in a 21


resource, because without boundaries an increas e in actors could degrade the resource. Thus collective action problem s dif fer in regard to how costly or difficult it is to devise physical or institutional means to exclude others (Ostrom 2003, 241). The exclusion factor is imperative as the larger a resource, the harder it is to exclude actors or to monitor the resource appropriate ly; and thus less likely are institutions to develop. For those resources that are able to appropriate there is a nece ssity to tie appropriation to monitoring of the resource to en sure abidance by all actors. Monitors are Accountable to the Appropriators: The second factor to which Ostrom found relevance in her study in Nepal was the ability for monitors to be acc ountable to the appropriators. When resources and resource users actions can be monitored reliably with relatively simple and inexpensive methods, it is relatively easy to protect the resour ces from overuse.(Ostrom et al. 2002, 463). Monitoring in general can be complicated or easy, depending on factors of the resource. In general ponds or lakes are considered to be easy to monitor due to the inert aspect of the water and the easy ability to quantify vol ume. However for rapidly moving resources such as rivers the quantification can be quite difficult without a institutional structure in place. Within the west, the necessity of c onsumptive uses to divert water from the original stream flow ensures that quantification and accountability is relatively easy. Each canal, lateral, or divergence of wa ter for consumptive use is monitored and quantified through the rate of fl ow for water passing through the head gates. Thus similar to Ostroms discovery that farmers will mon itor others action through irrigation ditches, so too do stakeholders within the west mon itor each other for abid ance by rules in use. 22


Graduated Sanctions Against Violators: Similar to monitoring of appropriation, successful institutions necessitate the ability to ensure anothers commitment to the agreement. In general sanctions can be as unimposing as reputational costs or they can be financially or physically imposing. Some examples of sanctions that ar e commonly used are fines, re putational costs, as well as threats of retribution. Sanctions, in general, are necessary in order to control the free riders or shirkers who benefit from the institution, yet do not contribute to the sustaining of it. Sanctions provide an incentive to ensure actions among a ll participants are according to the rules. While some degree of sanctions can undermine the effectiveness of institutions, in general, water law is effective in sanctioning through fines and reputational costs that ensure cooperation without retribution. Modifying Operational Rules: Common Pool Resource problems are not solved externally, since local participants design th e governing rules, but external enforcement of locally designed rules is what makes the solution stick (E. Ostrom 1990, 60). Institutions once in place necessitate enforcement, however, the basic bo ttleneck is often in structuring them to succeed. One common theme is the success of stakeholders, either individually or in groups, to work together to devise such institutions. Such examples of stakeholder collaborative success can be seen in the Nepal irrigation systems and the de facto precursor to prior appropri ation devised by California mi ners (V. Ostrom 1953; O. Ostrom 1993). Locally devised rules are the produc t of stakeholders ability to modify operational rules. As covered earlier in the ch apter, the ability to al ter the rules in place is the result of stakeholders undergoing collective choice acti ons. Such actions are the 23


direc t result of the ability of the stakeholders to manage the rules themselves, devoid of excess centralized restrictions. Thus as many scholars have noted how self-rule goes a long way into ensuring and facilitating the sustaining of any institutional structure for resource management. Participants are more likely to adopt effective rules in macro-regimes that facilitate their efforts than in regimes that ignore resource problems entirely or that presume that central authorities must make all decisions. If local authority is not formally recognized by larger regimes, it is difficult for users to establish enforceable rules (Ostrom Revisiting the Commons 1999, 5). Rules Congruent to Local Conditions: Coupled with the ability to modify oper ational rules is the assumption that any rule changes are done to best represent th e localized necessities and conditions of the resource. The importance of local level congru ency of rules is due to the perception that local actors are the most experienced with the resource conditions and thus are able to devise rules that filter the external factors that often comp licate situations (Ostrom et al. 2002, 465). Furthermore, rules devised at the local level can increase the likelihood of cooperation due to stakeholders perceiving the agreemen t as legitimate. Such a perception can decrease the necessity for la rge sanction mechanisms as well due to less shirking under locally devised rules. Conflict Resolution Mechanisms: Conflict resolution mechanisms can vary extensively based upon location and case, however, they often follow one of tw o typologies. The first and arguably more successful is the devolution or transference of power to benefit the likelihood of an outcome (Colby 1990, 7). These mechanisms often can incorporate mediation and 24


collaboration to resolve disputes. W ithin the case studies the successful dispute resolution mechanisms are often found to in stitutionalize through an organization thats tasked with continuing the agreement through mutual consistent interaction. The organizational component, and subsequent alte rnative dispute resolution, can facilitate stakeholders to address and tackle conflict areas through adaptive management practices and collaborative policymaking (Davis 2001, 15). Another form of conflict resolution is through a financial benefit or transference. Many areas susceptible to droughts within the West are the beneficiaries of financial payments meant to stifle and s uppress any desire for conflict. In the west this financial incentive can often manifest physically through stakeholder side payments and government support. However other forms may take an abstract component as they do not represent a tangible financia l gain but rather avoid a fina ncial loss. Thus within the west collaboration to resolve disputes is of ten seen as preferentia l due to the financial savings from avoiding litigation costs. Recognition of the Right to Organize: If local authority is not formally rec ognized by larger regimes, it is difficult for users to establish enforceable rules (O strom Revisiting the Commons, 5). Governmental action to legitimize stakeholders or facilitate the assembly of users is most visibly dealt with within this thesis through federa l reserved water rights. Specifically this thesis assumes that the reserved water rights are a fe deral recognition often of not only the tribal stakeholder but also of the e nvironmental stakeholder. Such an outcome then is often seen wherein a dual party of tr ibal interests and environmental interests will work as a single entity in orde r to assert both actors claims Hence in the west irrigation 25


and consumptive us es will be found bartering wi th the tribal actors and whatever deal is pursued is amicable to environmental groups as well. The perfect example of such an outcome will be seen within the Dungeness River where pursuant to an agreement between irrigators and the tribe, environmental activists recoiled from attempts to further alter stream flow. Whether people are able to self-organize and manage CPRs also depends on the broader social setti ng within which they work. National governments can help or hinder local se lf-organization. Higher levels of government can facilitate the assembly of users of a CPR in organizational meetings, provide information that he lps identify the problem and possible solutions, and legitimize and help enforce agreements reached by local users (Ostrom Self Governance and Fo rest Resources 1999, 5). Nested Enterprises: Nested enterprises are sets of rule s wherein governance authority appropriation and various other aspects of an encompassing institution are organized within layers. This is in order to bridge th e gap of lack of interaction between numerous stakeholders (Ostrom 1990). Ostrom contends large resource systems require formal institutions to account for the multitude of individual inte rests so they can be articulated and represented in decision-making forums (O strom Revisiting the Commons 1999, 11). According to Ostrom, Nested Enterprises or Nested Institutions, are successful in compensating for the lack of ability for numerous actors to have a prolonged interaction wherein cooperation would be justified. Inst ead nested enterprises or institutions are built among small groups which will collectivel y organize with others in order to approach a larger resource problem (O strom Revisiting the Commons 1999, 11). Visually a nested enterprise is similar to a Russian nesting doll or matryoshka doll. Such a concept contains smaller component s that each fit with in, and are immersed 26


within, a larger entity. Many irrigation system s can represent nested systems, with state agencies managing the main system, user group s at the secondary and tertiary levels, and individuals on the farms (Meinzin-Dick 1995). Western Public Administration: Overall the attempt to attribute the dependent variable, that of conflict or cooperation, to the presence and operation of da ms, the independent variable, will rely on the ability to formulate how such action impe des local collective action. Thus as well as an overview of the theoretical common pool resour ce literature there is a necessity to dive into the structure of governmental institutions such as the prior appropriation doctrine as well as the legal logistics su rrounding water administration, the forte of Elinors husband, Vincent Ostrom. While Elinor Ostrom of ten focused on institutions in developing nations, her husband Vincent Ostrom is s ynonymous with analyzing them within the United States. Vincent Ostroms early work on water administration within the west will be covered within the next chapter as well as a broader overview of the legal caveats of the prior appropriation property rights system. 27


Chapter 2: Western Water Law Within the United States of America there is no universal water law present; rather there are two distinct formations, ri parian and prior appr opriation. The Eastern United States operates under the riparian doctrine which traces its development to English common law. The western United St ates employs prior appropriation, which is quite different from riparian and was rather formulated in the early days of the western expansion. Prior appropriati on doctrine mirrors the frontier aspect of the environment through empowering the first user of a resource by allotting them the primary right. Such a concept is drastically different from the appropriation based on location evident in the eastern United States. Vincent Ostrom, a top scholar on the history of institutional interplay in the Western United States, states that the divergence from common law riparian rights to a unique frontier system was due to the marked contrast between the provisions of common law and th e necessities of the west. American institutional arrangements, sustenance patterns and resource policies were conceived in humid England and developed in the humid region of the United States. However the general aridity of the west stands in marked contrast to the humidity that prevai led in the physical environment where American Social institutions and traditions were formed. This alteration of the physical environment has caused an impor tant shift in the balance of human ecology requiring significant modification in institutional arrangements and social policy, especially in regard to the control and development of natural resources (V. Ostrom 1953, 1). The doctrine of prior appropriation is ev ident in 17 different western states although internal facets of the doctrine may differ in several states. Prior appropriation was developed in the late 19th century and the early 20th century through a frontier ownership system devised by California mine rs (Dzurik 1990, 38). This system held the common practice that the first miner to u tilize a source held a priority claim to that 28


resource. This system then spawned the resour ce base concept that the claim of rights and ownership was based off of a first come, fi rst serve practice (V. Ostrom 1953, 484). This practice and mantra eventually generated into the adopted practice of prior appropriation in western water law. First in use, first in time, equals first in right states that the actor to first use water in a beneficial way has the primary right to use that same quantity in perpetuity. The allocation of water rights in Prior appropriation states generally follows the stated First in use, first in right mantra. The mantra of the allocation doctrine is similar to the Lockian dynamic in where a persons right to anything in the commons is established by taking or enclos ing it with his or her own la bor (Dzurik 1990, 38). The strength and uniqueness of this component of th e doctrine lies within the seniority system of rights. The initial actor to use a quantity of water in a stream to a beneficial use is entitled to use that quantity of water in perpet uity and is deemed the Senior water rights holder. All adjudications (determined water ri ghts) subsequent to the senior water holder are deemed Junior water rights holders. J unior water rights holders are still provided assurances and given rights to quantities of wa ter, however their right s are at the mercy of the flow of the river. In the case that the initial senior water rights holder is lacking adequate flow to meet his needs, the most r ecent junior appropriator is subject to a taking by the senior appropriator through calling his ri ghts. Prior appropriation is not subject to the artificial hierarchy ba sed on location on the stream; rath er a de facto hierarchy in water rights is created by hist ory. Location based hierarchy is often evident in riparian systems as a water user at the headwaters may take water at the expense of those downstream. Prior appropriation seniority solidifies rights no matter the point of 29


diversion thus rendering locat ion based hierarchy negligible The system allows a full utilization with assured property rights wit hout [the] threat [of] new competitors gaining senior rights due to location (V. Ostrom 1953, 484). Within the concept of claiming rights a longstanding complaint is the perception of what rights are recognized to be claimed. What Constitutes Beneficial Use: First in use first in righ t places a particular emphasis on what is determined to be a recognizable use. Early in the administration and inscription of the law the concept of beneficial use was created to decipher what constituted a use. Attribution of beneficial use status neces sitates that an actor divert a quantity of water from the natural channel and traditiona lly use that water in a consumptive manner (i.e to water crops) (Dzurik 1990, 38). Benefi cial use is recognized to primarily revolve around providing water necessary for irrigation, mini ng, as well as commercial, municipal and industrial needs. The largest us e of water in the west has hi storically been for irrigated agriculture which tends to be the largest divert er of water in most st reams. Water use for irrigation alone constitutes as the la rgest overall appropr iator accounting for approximately 75% of total water diversions (Rowley 2006, 1). Noticeably absent within this consumptive focus of the doctrine of prior appropriation is the recognition of environmental and tribal uses of water. The doctrine of prior appropriation was long criticized for a lack of recognition of non consumptive uses. Particularly the bene ficial and consumptive clauses (as well as efficiency and pricing standards) are increasingly targeted by scholars as the main culprit in leading to institutional inefficiencies regarding water allocation due to the failure of 30


non-consumptive rights .Non cons umptive rights are traditiona lly for environm ental and tribal demands and generally are used for wildlife, tribal agreements and groundwater recharge. This thesis will presume that st ate and federal actions have empowered the claimants to barter for the preservation of water for such uses. In doing so the thesis compensates for the inefficiency argument by assuming both stakeholders are in a bargaining position. The debate over whether each stakeholders right should be recognized is still contentious and indicative of legacy of conflict that has so often plagued this region. Regardless of this thesis claim there is s till stakeholder intricacies in the west that may affect coope ration that this thesis is unable to account for, prime among them is the cultural component. This thesis will assume a meta view of stakeholders pursuing the best outcome possible, regardless of their perceived legi timacy of opponent actors. The actor interests that are present in the current western water dynamic are commonly delineated by consumptive and non-consumptive uses. In la w these uses are separated by the tangible or wet rights asserted by consumptive users and the paper or legally codified implied environmental rights. Paper rights are more often asserted by environmental and tribal stakeholders seeking to assert a claim to s ave water through keeping it instream. Wet rights however are those that are supported by the antiquated beneficial use doctrine of the Prior appropriation law and assume the ability to capture, divert, consume or store water. Water uses will be separated accordi ng to 1) Traditional consumptive uses, 2) Tribal Reserved Water right uses, and 3) Environmental Endangered Species Act based uses. While there are countless other perceived uses su ch as recreational, private fishing, groundwater recharge the assumption will be made that they act under the guise 31


of the existing stakeho lders. Since this thes is focuses specifically on water allocation and use these three right types are maintained as encompassing of all interests. However this does not preclude one group acting on behalf of another or reinforcing anothers claim. A water right, or more specifically, holdi ng a permit, or right of use, for western water carries commensurate duties to ensure fair allo cation. Appropriators are responsible for abiding by seve ral guidelines when holding permits, among these duties are the necessity to use it or lose it. In prior appropriation there is a general legal clause that states a persistent use of such claim is a necessa ry prerequisite for an upheld right. In effect, this clause means that an irrigator or rights holder must continue in perpetuity in order to keep and sustain the wate r right. This clause essentially says that in order to sustain a permit, water must be di verted whether it is necessary or not. The common time lapse for this forfeiture of rights is a period of 3 years (Hutchins 1970). This is quite important as it is another facet of the doctrine in which many legal scholars have pointed to as a rationale for ev ident suboptimal outcomes in considering environmental effects. However, recent developments have sought to counteract this seeming inefficiency by utilizing market tran sactions. Administration and enforcement of such rules are the responsibility of the state in order to ensure continued equitable water rights. Administration of Water Rights: The onus of management and administrati on of the system of Prior appropriation water rights is held at a diffe rent level than is common in American water law. Allocation under the doctrine as was previously mentioned is estranged from the common law 32


system commonly employed by the United Stat es for resource management. Thus the administrative responsibility is no t held at the federal level bu t rather is th e responsibility of the states to administer. While entitl ement of land is commonly held by federal administration, the responsibility for control over water acqui sition and administration is recognized to be the domain of the state leve l under the doctrine of prior appropriation (V. Ostrom 1953, 484). Western stat es instead of relying on judici al determinations of based claims will send claims to the state engineer to quantify and determine (V. Ostrom 1953, 484). This application process and adjudi cation of rights to a state engineer has morphed to being the role of a state agency. While the federal governments enumerated role in water management has historically been seen as cons titutionally superior to states, it is actually the latter to which has been asserting de f acto control. In the west, when federal interests have attempted to involve themselves conflict ove r the focus of management often arises (McKinney 2005, 7). While de facto responsibi lity for allocation and administration of water is within the state, the federal gove rnment has become inextricably linked to western water management. Vincent Ostrom early in his work focused specifically on legal institutions over resource governance in the west. Papers he authored such as Sta te administration of resources in the West were integral to the understanding of legal inst itutions and levels of government involved in management. Ostr om identifies the multitude of agencies and entities of which have a distin ctive governance jurisdiction ov er some portion of western water. Vincent Ostrom was responsible for elaborating on the multiple centers of power over resources. Such polycentric gove rnance, or multiple sources of power, is 33


still se en in some respect in the west ern United States; however the centers are increasingly constrained to a single jurisdictional level, th at being federal agencies. Federal entities such as the Bureau of Recl amation, Department of the Interior, National Oceanic and Atmospheric Administration or Federal Energy Re gulatory Commission have some aspect of interest and manageme nt over western water (Moore et al. 1992, 4). One avenue through which the federa l government has maintained a right to management is through the providence of public goods. The federal government has become involved in providing infrastructure to increase irrigation water supplies due to the necessity of a provision of large capital. Historically as water became scarcer in the west, new supplies were developed. Dams a nd canals were built to move water from where it was abundant to where it was need ed (Rowley 2006, 1). The federal agency responsible for the administration of these projec ts is the Bureau of Reclamation; with the construction delegated through the Army corps of engineers. It is the hydropower dam licensure and operation that will be critiqued within this paper due to the power held over water detention and distribution. Brief History of Federal Involvem ent in Western Water: The Reclamation Act was signed by President T. Roosevelt into law on June 17, 1902 and led to the creation of what would even tually be called the United States Bureau of Reclamation. The Bureaus stated goal was to increase the amount and quality of arable land through direct fede ral intervention into re-claiming water. The act was enacted to authorize the agency to create widespread small scal e irrigation projects in the western states (Dzurik 1990, 57). The initia l goals and expected outcomes of the water reclamation was 34


(1) Federal monies spent on reclama tion water development projects which benefit water users would be repaid by the water users; (2 ) projects remained Federal property even when the water users repaid Fe deral construction costs (the Congress could, of course, choose to dispose of title to a project); (3) Recl amation generally contracted with the private sector for construction work; (4) Reclamation employees administer contracts to assure that contractors' work meets Government speci fications; (5) in the absence of acceptable bids on a contact, Reclam ation, especially in its early years, would complete a project by force account(that is, would use Reclamation employees to do the construction work); and, (6) hydroelectric power revenues could be used to repay project construction char ges (Pisani 2002, 3). The last and final goal, that of hydroelectric power generation, has left an indelible mark on western water management. The operation and management of dams for hydropower generation is quite important to the overall dynamic of water allocation in the west. Central to the concern over hydroelectric power and water rights is the retention of federal reserved water ri ghts by Federal Energy Regulatory Commission (FERC) license. This reservation of water is often for power production or retention and is rationalized through the idea that the water need not be diverted or consumed but rather simply altered to achieve best economic gain. Currently hydroelectric revenues contribute a significant porti on of the USBR budget, and in the case of a single plant, Grand Coulee, contributed roughly 2/3 of the entire USBR appropriated budget (Pisani 2002). Furthermore all rights associated with the storage of water for power generation were separated from natural flow rights; thus adding a layer of complexity to western water institutions. The Federal Energy Regulator y Commission is responsibl e for federal licensure of dams. The licensing allows the dam to withhold water in order to satisfy the necessities of their operation, usually for hydroelectric power as well as basic maximum and minimum levels for flood control. Such a license is often only subordinated to other 35


federal actions and regulations The licensed operation of a dam is only usually changed through two ways, one through judicial action or two through agency recognition of a problem. One such action th at will alter a dams standa rd operation is when an endangered species is found to be in jeopar dy. A judicial deci sion recognizing that current operation does not satisfy endangered sp ecies recovery forces a dam to release water pursuant to necessity (Rohlf 2001, 1). Of ten these decisions come within a context of a section 7 or a Jeopardy biological opinion wherein an endangered species is found to be in jeopardy. Section 7 of the ES A requires federal agencies to ensure that their actions are unlikely to jeopardize a listed species, however such ESA proceedings have not resolved the issue entirely. Potent ial conflicts between Reclamation operations and endangered species' recovery must be, a nd are, addressed in Section 7 consultation proceedings. Jeopardy bi-ops will be in itiated by a federal environmental agency; however environmental groups often litigate to enforce such proceedings. However, a 1987 report found that Section 7 consultations of ten exerted little to no effect on western water project operations (Blumm 1991). The non-partisan National Research Council has also stated the general uncertainty that pe rvades federal environmental regulation and decision making in regards to minimum instre am flow for salmon survival (Powers 2005). The importance of this process is within its affect on stakeholders to pursue altering management strategies not cooperative ly but rather externally from the system through litigating with federal entities. Such jeopardy biologi cal opinions are found within two of the following case studies, part icularly those two wherein conflict persists. Thus the presence of dam operation under a jeopardy finding helps to signify the reluctance and inability of stak eholders to address their concerns outside of level shifting. 36


Hydropower dam operation is a compe ndium of interests that is argued necessitates federal governance. In addition to irrigation the bureaus responsibilities now include water conservation, hydroelectric power generation, munici pal and industrial water supplies, flood control, outdoor recreatio n, and enhancement of fish and wildlife habitats and research (Rowley 2006, 12). So while the overall responsibility may be to provide for any and all of those responsibilities the perspe ctive cannot be overlooked that in many cases, the timing of water releas e for hydropower production conflicts with environmental and agricultural needs for water (Rowley 2006, 11). Northwest peak hydropower generation demand often comes in contrast to the demands of the environmental, tribal and irriga tion interests. This is due to the colder fall and winter months necessitating larger pow er production from dams. This timing of release for power is in stark contrast with both irriga tion and environmental uses of the water. Specifically in late spring and summer when da ms generally restrict water flow to obtain a necessary size reservoir corresponding demand is high for anadromous fish runs as well as crop irrigation. Operation of the dam is ma intained to provide a minimum head power (level of water) necessary for the prope r generation requirement, pursuant to FERC license. Effectively this allows self determ ination of releases from reservoir that have sufficient minimum levels. Operating procedur e is furthermore complicated pursuant to a delineation of water by normal stream flow (wha t is due the irrigators in many cases) and stored stream flow (what the minimum hydroelectric power head is taken from). However this aspect will not be discussed at length in this chapter but rather comes into play in the discussion of the institutional formation among cases. Operation is permitted 37


under federal water righ ts and is evident in some respect within each case study, with the exception of the undammed Dungeness. Reserved water rights maintain that the federal government can withhold an amount of water necessary for providing for its own operating necessity. Thus these rights stem from the supremacy clause and the need for water to carry out federal functions. The power to make such reservati ons cannot be doubted (McCool 2005). In 1920 the next round of water control legislation went through as the Federal Water Power Act of 1920 attempted to create a na tional hydroelectric power policy through the creation of a Federal Power Commission thus allowing the licensing of private hydropower facilities (Dzurik 1990, 57) In the later part of the 20th century this Power Commission would be changed to become FERC; the Federal Energy Regulatory Commission. FERC would from then on be instilled with the power to license dams and provide assurance to private dam operation companies that such infrastructure would include a commensurate legal righ t to retain water necessary for operation, regardless of state appropriation. However federal rese rved water rights are not specific to hydropower as they are also incorporated for environmental and tribal areas. Tribal Rights: The second common form of reserved water ri ghts is in the form of tribal rights. These rights were awarded to indigenous groups recognized by the federal government and were enjoined often with the lands or reservation of the group. The evolution of these water rights were based off of historic tr eaties that the government had entered into with the Native American nations in whic h land, and the subsequent rights to hunt and fish that land, were reserved for the gr oups. The major legislative development in 38


solidifying the tribal claim s and rights to reserved water was the 1908 Winters vs United States decision, often refereed to as the Wint ers Doctrine. The decision was made that in the reserving of property right s for indigenous tribes a concurrent agreement was made that included beneficiary water rights (Seiter et al 2000). Thus the decision was determined that in the act of reserving land an assumption was implicitly made that water was to be included for th e water on reservation. The next evolution of the federal rese rved water rights is that of the Boldt Decision, the outcome of the US vs. Wa shington case (Anderson 2006, 25). This decision acknowledged that claims to harves t fish by treaties were not merely in reference to the water surroundi ng the reservation but rather to land off reservation as well (Brown 1994, 3). The second iteration of the Boldt decision was in 1974 by a federal district court judge O rrick, and the resultant policy was named the Orrick decision ( Brown 1994, 3). The outcome of that decision was that tribes were entitled to half of the harvestable salmon within a river. While initia l opposition was made by states a subsequent judicial appeal in 1979 upheld and determined that the decision was correct in allotting half of the harvestable salmon to Tr ibal rights (Brown 1994, 3). In the second phase of this lawsuit Orrick extrapolated the right to protect salmon habitat by the right to half of harvestable salmon under the expressed pr etense that the right to take fish would eventually be reduced to the right to dip one s net in to the wate r and bring it out empty (Brown 1994, 3). In the subsequent legal appeals to the Orrick decision large-scale mistrust and negative feelings were rampant between tribes and c onsumptive users. Overall western water law is a compendi um of interests and legal facets that inevitably affect the way actors act within the arena. However while each of the case 39


studies operate under the basic principles of prior appropriation, ba sic inform ation was warranted. This brief overview of the pr ior appropriation doctrine and the innerworkings of western water law are meant to provide a basis upon which to better understand the following chapters case studies. 40


Chapter 3: Case Studies The Dungeness River The first case study, the D ungeness River watershed, is located in western Washington State on the Olympic Peninsula. The Dungeness River is a relatively small and minimally developed watershed. The ri ver currently supports a population estimate of around 14,000 living in the incorp orated Clallam and Jefferson Counties. Historically, the Dungeness has accommodated irrigation since the 1800s and thus all claims, including those of the local Native American tribe have been adjudicated (determined and set in law). Individual agricultural farmers dominate this watershed; however there is also a small commercial farm presence as well (Seiter et al 2000). Due to a harsh climate and relatively scarce rainfall the watershed necessitates several re servoirs and over 150 miles of irrigation canals, ditches and latera ls to distribute water. The Dungeness River basin, while quite developed, contains one of th e only substantial rivers left in the Pacific Northwest which lacks hydroe lectric infrastructure. This region, built upon the consumptive use of water for irrigation, currently pays tribute to that history through an annual festiv al whose tagline is w here water is wealth (Seiter et al. 2000). While wa ter and irrigation interests are well entrenched within this watershed it has become a success story of colla boration. Specifically, this watershed has maintained crop irrigation in addition to sa tisfying tribal and environmental concerns over instream flow. The following section will highlight the stakeholders present within the basin and discuss the manner to which th ey have succeeded in managing the river basin. The case study will conclude in e xploring the long-term outcome of the case agreement as well as a brief overview of the watershed. 41


Tribal Actors within the Dungeness River: The Dungeness River has historically been the home to the Jamestown SKlallam tribe. The SKlallam tribe s livelihood has long been dependent upon extracting fish and shellfish from the river. The SKlallam tribe when threatened with the prospect of renegotiating a treaty purchased the land upon which its reservation currently resides. The tribe and the reservation are named the Jamestown SKlallam after the community leader at the time (Seiter et al 2000). The Jamestown SKlallams stature upon which they have pursued and succeeded in altering water flow has been due to the provisions of the initial 1855 T reaty of Point No Point. Fishing, and the related littora l activities, was long cons idered the heart of the Puget Sounds and Coastal Indians culture (B rown 1994, 1). The 1855 Treaty of Point no Point had the tribe cede 438,000 acres of land to the U.S. government in partial exchange for continued rights to harvest the fish and hunt (Seiter et al 2000). This provision, article V, would prove vital to fu ture dealings over water flow due to the precedent set by the Winters and Orrick decisions. These provisions and precedence supported the tribal rights claim to a portion of the river flow This provision noted that The right (allocated to the Native American Tribe) of taking fish, at all usual and accustomed grounds and stations, is further secured to said Indians (Brown 1994, 1). As common within each of the case studies this treaty provision would provide the basis upon which current stature to negotiate stream flows takes preceden ce. Currently these rights are pursued for providing in-stream environmental flows to sustain shellfish, salmon, and other culturally sign ificant fish species. 42


Irrigation within the Dungeness River : Irrigation within this basi n has a long history dating back to near the 1850s. Agriculture has persisted for over a century in the Dungeness de spite average annual rainfall barely reaching 17 inches per y ear (Singleton 2002). Th e main concern over irrigation interests within this area are actua lly two fold, one to ensure adequate water supply for irrigation, and two, to ensure ade quate flood protection. As the Dungeness is largely a free flowing river the difficulties in herent in unregulated seasonal differences are born directly by those living near the river. Conflict in the west does not often arise from an overabundance of the resource but rather a scarcity. Scarcity due to low rainfall and high irrigation demand has led to irrigation interests wary and, in itially, resistant to tribal claims over the resource. Adjudication over the river started in 1924, prior to widespread recognition of environmental and tribal claims, and thus the entirety of the rive r was appropriated for consumptive uses (Seiter et al 2000, 1214). Since the 1980s the Dungeness River has grown in tourism and homesteading leading to a further growing demand for a scarce resource. The growth of actors and demand in the basin led to the declaration of the resource as over-allocated (Sei ter et al 2000, 1214). In gene ral, over-allocation not only means that more water has been claimed than is available but it also freezes any future claims to the resource. Prior to a substa ntive agreement, irriga tors, acting under legal entitlement, were withdrawing nearly 80 per cent of natural flow during environmentally critical periods. This clash of environm ental and irrigation in terests led to early contention over water adjudication and useas both major groups, irri gators and tribal 43


interest, were polarized between consum p tive (or diversionary) use vs. instream environmental flow (Singleton 2002, 8). Initiation of a C ooperative Institution: The major fault lines were between the Jamestown SKlallam Tribe who, along with various sport fisherme n advocates and environmental groups, wanted higher instream fl ows in order to improve conditions for salmon fishing; the agriculturists, who wanted to irrigate their fields and protec t their water rights, and the property owners, who wanted to have various flood protection structures maintained and who were concerned about possible restrictions of their property rights (Singleton 2000, 9). In the 1980s state biologists found that over 80% of instream flow was diverted and considered this a main factor limiting the ab ility for salmon rehabilitation. This finding helped prove a catalyst for substantial colla borative talks as pressure was mounting to succeed as neither side desired prolonged e xpensive court battle (S eiter et al 2000). The first impetus for collaboration and collective action came through the 1990 Chelan agreement. This agreement was reached at th e state level and proved vital to promoting a collaborative process through le gitimizing local actors. The Chelan Agreement was initiated in 1990 a retreat called by the Governor of Washington. This retreat was meant to addr ess the growing concer ns over heightened levels of conflict over the states water alloca tion. In May, the Gover nor held the retreat at a popular resort island, Orcas Island, to bring together all relevant interests in a discussion. A variety of stakeholders attended this meeting such as government, agriculture, business, environmen tal and tribal interests. This meeting was important in that it reached a mutual understanding th at water cooperation was preferential to continued conflict. Attended by 175 leaders, re presenting a variety of constituents as a result the group agreed that cooperation water resource planning is the actually 44


desirable approach (Brown 1994, 9). Th e Chelan agreem ent concluded with the establishment of a water resources forum as well as policy objectives to promote collaboration over water resources among tw o case studies (Brown 1994). Two cases, the Dungeness and Yakima Rivers (cov ered within the next section) were selected for this program after local stakeholders nominated these basins. Dungeness River Chelan Agreement: In 1991 various stakeholders, in cluding Clallam County, the Jamestown SKlallam tribe, as well as the local irrigation associati on nominated the Dungeness River as a pilot site for a prospectiv e collaboration plan (Seiter et al 2000, 4). Early discussions were contentious as both groups felt that their livelihood and way of life depended on management of scarce Dungeness water (Seiter et al). Solutions to the various environmental problems of the Dungeness River have the potential to generate enormous conflict between various interests, [yet] the process is now a resounding success a nd has been recognized both nationally and within the state as a model for such place-based initiatives (Singleton 2002, 8). However, a locally driven consensus plan for watershed management was eventually produced which was highlighted by a shared sa crifice between irrigators and tribal interests (Brown 1994). The plan would late r be recognized as th e Dungeness-Quilcene plan, or DQ plan, and would become the first of many agreements to signify the success of collaboration and cooperation within this case. The clash between interests was on providing water for the Dungeness River Chino ok salmon whose return in late spring corresponded with both the lowest flow in th e river as well as th e highest withdrawal rates for irrigation (Seiter et al 2000, 1212). The first major problem the plan sought to address was water withdrawals from the ri ver in the late summer months. These 45


withdrawals were thought to be com promising the upstream passage of returning salmon runs (Singleton 2002, 9). The DQ plan initially found success in reducing stream flow diversion and would eventually formulate into a more substantive agreement known as the Memorandum of Understanding (MoU). Following the initial DQ voluntary agreement each party agreed in 1994 to take more di rect action. Thus the formalized MoU was signed with the Washington Department of Ecology in April 1998 i nstitutionalizing the voluntary agreement and creating trust wate r rights for the Dungeness River (Born 22, 2000). Effectively thes e trust water rights ensured that water would remain instream for environmental and tribal con cerns as well as providing st ability necessary to conduct agricultural operations. The actual substantive agreement within the MoU has led to stakeholders collectively working to increase water flows. The current agreement has broadened to include technological improvements for diversio n canals aiming to restore natural stream habitat in hopes of benef iting the environment. This management scheme has negated th e necessity for federal requirements to protect tribal and environmental interests. The purpose of th e plan is to reduce diversion of water in the Dungeness River itself and incr easing the chances of survival of federally listed species and other critical salmon stoc ksReducing diversions from the Dungeness River is proposed as a proactive measure to avoid sanctions that could be imposed by the NOAA fisheries in the future under Section (9)(a) of the ESA for unpermitted take of threatened species (Dungeness EIS by Tetra Tech). 46


Success with this program could be at tributed to the bottom up approach employed by the Chelan agreement. Through state legitimizing and consensual recognition of stakeholders each side was able to conclude that a joint consensus outcome was preferable to litigation and conflict. Overall, this agreement has succeeded due to the recognition and success of engaging with a ll relevant stakeholder interests. This process has excelled in producing a substantiv e agreement wherein all parties recognize that the Dungeness River lacks the supply necessary to satisfy everyones optimal water objectives (Brown 1994). Within the next section the components of this institution which has generated such resounding success will be explained. Components of the Collective Institution: The MoU between the Jamestown SKlallam, the local government and the water irrigation districts has worked because of shared compromise. All parties to the memorandum share the benefits during good years and divide the costs during problematic times. The Agreement necessi tates significant water conservation in the late summer in most years (Brown 1994) The shared compromise and communal aspect of the agreement is identifiable in high annual precipitation years wherein environmental/tribal and irrigators jointly benefit. Similarly, in droughts, each actor shares the cost and pain as water is restricted to all causes. This plan was revolutionary as, despite existing water right entitlements, water users voluntarily restricted their withdrawals. This action simultaneously led to concessions by the tribe and environmental actors. The following secti on will outline the strategy upon which each actor utilized to collectively negotiate a successful outcome. 47


Instream flow is considered one of th e most limiting factors for salmon restoration on the Dungeness River, which supports four specie s of fish currently listed as threatened on the federal Endangered Species List. The irri gators and traditional water users altered their status quo operations in order to satisfy environmental and tribal actors desires to limit stream flow diversion in order to acco mmodate anadromous fish migration. The irrigators initial agreement to reduce divers ions was voluntary howev er it subsequently became institutionalized through legal statute. This agreement stipulated that the irrigators would withdraw no more than 50 percent of the rivers flow in perpetuity, even though legal entitlement far superseded th at amount. The agreed upon amount was a substantial difference compared to the on av erage 80% flow divers ion, and overall overallocation of rights, preceding the institutions implementation. While traditional water consumers decided to lower withdrawal rates, such an outcome wa s not possible without collateral by environmenta l and tribal actors. The main compensation mechanism for the tr ibes to negotiate with the irrigators was through a collateral agreement of coopera tion. The Jamestown SKlallam, as well as environmental interests proved successful in providing effective collateral in minimizing the threat of litigation over endangered salmon and water use. Stipulations were enacted to ensure a double jeopardy perspective, meaning that th e current agreement would not be utilized as a tool for a def ector to gain leverage in future negotiations. This collateral was necessary to ensure viable cooperation in the agreement as well as ensure the equitable benefit to the consumptive users. Reducing threat of litigation, or litigiously stimulated federal regulation, was but one exch ange in which the tribal and consumptive 48


users negotiated. This agreem ent then re presented a long term effective compromise between interests over water allocation within the basin. A vital compensation mechanism was also ne cessary to ensure that the irrigators benefitted from their historic water property rights. In order to attain backing for reducing flow usage without compromising paper rights the stakeholders involved pursued de jure changes to the forfeiture clause of prior appropriation. The current framework of the agreement at implementati on suggested that irri gators in cooperation would succumb to the provision and lose rights. The provision states that a water permit that is not fully utilized for a period of thr ee years losses the differential rights to recent usage. In order to accommodate this threat to consumptive title of water rights a legal mechanism was created to prot ect the irrigators full title rights. The outcome was to create a water trust, which would preserve title in the face of below quantity usage (Brown 1994, 1215). The Dungeness Water Trust specifically formulated an agreement wherein the water relented would be divided. Two-thirds of that quantity would remain under a provisional instream appropriation, a nd the final third would be managed and reserved for future title needs. Farmers main tained appropriation title and were given an out that if necessary they we re able to increase diversi on to meet need on a temporary basis. These changes have proven successful in providing benefici al compensation and incentives for the irrigators to decr ease withdrawal and diversions. In order to maintain and mitigate the likelihood of people to defect from the agreements the coalition decided upon self monitoring and enforcement. This was accomplished through joint hiring of a full tim e coordinator employed by the irrigation association with the assigned duty of meas uring and ensuring compatibility to the 49


agreem ent. The irrigation districts have also allowed tribal scientists to double check the levels with their own experts in order to fu rther monitor withdrawals for consistency. This enforcement mechanism has allowed the tribe and irrigation district to ensure compatibility of individuals to th e agreed upon framework (Brown 1994, 1215). Apart from simply dealing with allocation, the agreement also committed all actors with responsibility for restoring hab itat of endangered species. This voluntary decision was vitally important as it represente d an effort to expand the existing agreement to further benefit the resource in jeopardy. Broadening the sc ope of the agreement helped to reduce the physical and perceived burden on irrigation interests. In return for a reduced withdrawal the tribe ag reed to help with conservation efforts, and to work to address other impacts on fish habitat. This secondary aspect was critical as water conservation was not the only problem for salmon as dikes, land use, and forestry issues as all had a supplementary detrimental effect and the farmers wanted that acknowledged (Dungeness River Management Team). A commitment was thus made by the tribe and other parties to restore habitat in the riparian area, due to acknowledgement that water quantity was but one of many relevant factors that affect salmon populat ion (Brown 1994, 1214). The Tribe as well as county environmental districts, irrigation districts and e nvironmental non-profits have since worked together to facilitate and fund stream bank stabilizati on and restoration of native stream habitat (Born 2010, 22). This portion of the agreement has resulted in financial and physical support and culminated with a detailed hab itat restoration plan. Another component of the agreement was reliant upon improvements to the overall irrigation systems. This agreement was necessary as the inefficient system lead to 50


losses in water supply as well as harmful e ffects to salm on. The century-old irrigation system in the valley was in need of seri ous repair, and pursuant to the agreement the Tribe helped farmers secure over $1 milli on in grant funds for improvements. The Jamestown SKlallam individually provide d large grants in excess of $130,000 to improve efficiency that were matched by various other funding sources in order to amount to that figure (Born 2010, 13). The trib e thus facilitated in improvements which benefited farmers through a more efficient i rrigation system and allowed more water to stay within the river (S equim Gazette, Dec 10, 2009). This cooperation was, and continues to be, accomplished through join tly funded programs by Clallam County, the Jamestown SKlallam tribe and environmental programs. Overall th e tribe and irrigation interests collectively have worked to provide beneficial outcomes for all parties far surpassing the original alloca tion intent of the agreement. This commitment of the stakeholders to work outside the allocation scope further shows the communal aspect and collaborative benefits of working togeth er for a common good (Brown 1994, 1214). Long Term Outcome of the Agreement: Since being established over a decade ago the overall legacy of the agreement has been successful in sustaining itself in the f ace of challenges. The ongoing legacy of the cooperation has been successful in weathering perturbations within the system. The agreements made in 1991 were brought to th e test most recently in both 2001 and 2009. Since the 2000s the Dungeness River has been overallocated in all but a single month of each year. Over allocation often forces se niority call-ups, which if were allowed to happen would flare tension between and intern al of the stakeholder groups. Any such 51


outcom e would inevitably threaten the fabric of the collective action agreement, however the cooperative agreement has sustained itself even in the face of this adversity. A widespread drought of 2001 saw horrendous conflict arise elsewhere, notably the Klamath, yet the Dungeness River dealt with the drought efficiently. The scale of the 2001 drought was comparable to the one in 1987 that first spurred the cooperative impulse. Due to limitations of the existing agreement the tribe and irrigators forged yet another voluntary agreement creating the Dungeness River Management Team. Thus in the face of a drought that reduced the river to near historic lo ws, irrigators withdrew just 33 percent of the Dungenesss flow. The Dungeness was hit with another drought in August of 2009. The local news covered how, once again, precipitati on levels were at near historic lows with river flow at half of the seasonal average. The drought of 2009, a in 20 year drought, became yet another instance of the success of the collective agreement. Specifically newspaper accounts from the 2009 crisis cite the remarkable resilience and positive outcome of the institutional arrangements. With irrigati on and environmental needs high, water levels neared the lowest in the past 80 years yet tr ibes and irrigators were satisfied with the outcome. One such account describes how the Water Users Association developed a part voluntary, part mandatory plan to c onserve water. Soon, all landscaping and recreational ponds will be shut off either voluntarily or by irriga tion district/company personnel if voluntary cutbacks don't work they'll start rationing the water by shutting down irrigation ditches on a rotating basis (August 6, 2009, KONP local news). The news articles also support the conclusions of the Washington Department of Ecology that all the curtailments were enough fo r tribes to provide sufficient flows to 52


help returning adult pink and Chinook salm on migrate upstream. Washington Department of Fish and Wildlife praised the drought coordination in several news articles and was quoted as saying that even when water looked to be running low irrigators voluntarily agreed to divert si gnificantly less. These actions received praise for helping salmon runs that were stuck in the lower stretches of the Dunge ness River due to low stream flows. Overall the 2001 and 2009 drought proved that government agencies, tribes and irrigators can work together collaboratively to meet everyone's needs particularly those of fish (Sep t. 30, 2005 Dept of Ecology). Review of the Case : The Dungeness River Management Team has worked together to forge groundbreaking voluntarily substan tial agreements that have efficiently altered water allocation agreements over the entire river ba sin. This case study is quite unique in its success and resilience of the in stitution and the resulting creation of a stable effective organization. Together these products of collaborative effort have led to substantial resolutions over water allocati on between stakeholders. In the face of mounting water scarcity and institutional chal lenge, the institution has excelled in retaining water for all interests. When the region was threatened with a drought of historic portions an agreement was able to be made that saved water for environmental reasons, when other areas and other cases may have and did e nd in conflict. Regardless of conflicting interests, and without a government imposed framework, Dungeness stakeholders realized that pursuing a long term conserva tion plan was beneficial. This case has succeeded in managing the resource basin to ensure distribution among stakeholders for irrigation water property ri ghts and environmental inte rests (Brown 1994). 53


Snake River: The second case study is that of the Snake River, a river that spans the western states of Idaho and Wyoming. The Snake River has been one of the more heavily developed rivers in the west by hydropower, hosting such renowned project dams as the Hells Canyon Complex and the Minidoka Comple x. The major tribal stakeholders within the basin are the Shoshone and the Nez Perce tr ibes. Both tribes have historically seen their rights come into contention with local irrigation interests; how ever, they currently maintain a partnership with irrigation ove r allocation. While th e river is located predominantly in Idaho it is managed thr ough an interstate Compact, or agreement between both Idaho and Wyoming. This compact is comparable to that of the Klamaths, wherein an operating council of both states representatives delineates the portion of water reserved for use by each state. However, the overall apportionment between interests in the Snake River is unresolved by presence of a compact. This thesis focuses on institutional success, or failure, in managing the resour ce between interests and this case, regardless of compact, represents succe ss in stakeholder institutional allocation. Historical controversies over allocation culminated with an agreement in 2005 that may well prove a model outcome for ot her regions. While this watershed continues to generate conflict the focal point of contention has m oved away form allocation battles. This section will seek to outline th e relevant actors within the region, detail the components that led to success, and finally note how the institution has sustained itself. While the 2005 agreement was quite recently undertaken this section will not explore whether it will sustain itself but rather how it has already. The case is se en to be successful in its 54


ability to collectively o rganize and design inst itutions in which re levant stakeholders band together to create a mutually beneficial outcome for the distri bution of water rights. History of the Snake River Irrigation: The Snake River watershed ha s significance in being one of the first regions of the northwest to homestead and aggressively pursue agriculture. The Snake River is the largest of the case studies and currently irrigates 7x th e area, and supports 14x the watershed area of the Klamath (Slaughter 2007, 311). The storage component of the Snake River only accommodates around 43% of the average years necessitated use and thus much of the basin is dependent upon nat ural flow; leaving the Snake susceptible to drought conditions (Slaughter 2007, 311). The susceptibility of the Snake to drought however is somewhat muted due to the river being fed primarily from stable underwater sources, and not by variable snowpack (Pisan i 2002, 216). Historical development of the Snake River came prior to federal involvemen t in reclamation, contrary to the process seen within the Klamath. While water wa s first diverted in 1850 water from the upper valley large-scale agricultural development along the river was stimulated by the Carey Act (Slaughter 2007, 312). The Carey Act wa s enacted in 1894 and allowed for the incorporation of private da ms, canals and irrigation districts to spur agricultural development. In 1902 the first extensiv e centralized projects came from federal involvement through the Unites States Bur eau of Reclamation. The Snake River watershed was also one of the first areas to be blessed with hydroelectric power generating dams. The Snake River Minidoka pr oject, one of the initi al hydro-electric dams built in the United States became the catalyst upon which further development was based, due to its large revenue generation fr om power. The USBR created large storage 55


dam s that overtook private storage dams a nd furthermore evolved into managing water supplies. Currently the Snake River hosts tw o direct Bureau of R eclamation projects as well as several other hydroelectric dams that are operated by the Idaho Power Company. These hydroelectric dams historically tried to assume a supervisory role to the greater irrigation area. On some government project s, these organizations supervised the allocation of water and acted as boards of arbitrators to settle di sputes among individual irrigators (Pisani 2002, 82-83). The eventual emergence of collective irri gation districts sought to recoup some of the managerial capacity back from the Bureau of Reclamation. The early creation of an irrigation district forced farmer s to organize, elect a board of directors and participate in their own governance (Pisani 2002, 89). With several dams and irrigation districts creating a piecemeal operation and management system there was a need to establish a larger institutional presence. The catalyst for the creation of this overarching committee entity would end up being a large drought. During 1917 a drought overtook the region and created a situation wherein irrigation interests were pit against each other and initial complications arose between storage rights of dams and natural flow ri ghts. This acknowledgement of the sub-par current system led to the development of a committee representing the widespread irrigation interests within th e region. This committee was authorized to collectively guide allocation of the natural flows and storage rights on the middle Snake and upper Snake River. 56


Committee of Nine : In 1919 Drought and chronic water shorta ges forced Minidoka and Twin Falls (Snake River projects) farmers to join togeth er to build new storage reservoirs and to adjudicate Snake River water rights (Pisani 2002 89). This advent of pressures became the de facto catalyst upon whic h the Committee of Nine was dealt the task of arbitrating natural flow and storage right s on the river (Slaughter 2007, 3 13). Formed initially in response to droughts, the committee has since achieved the status of an extra legal governing body with allocative power over wa ter rights. This power has continued unabated, even in the face of continual development since 1919 (Slaughter 2007, 312). Furthermore, individual irri gators are empowered in ma nagement through the direct election of the Committee of Nine from collect ive irrigation districts and the Idaho Water Users Association. The Committee of Nine serves at the discretion of irrigators and is representative of their inte rests and reliant upon the inclus ion and support of associated consumptive stakeholder groups. The Committee of Nine thus is best understood not as a Hobbesian Leviathan but as an ad ho c, tenuous organization built upon compromise, consensus and finally cooperation (Fiege 1999, 1 15). This informal stature is mirrored in the fact that the Committee of Nine has never been sanctioned into law, and instead relies on institutionalization from a 1924 water right agreemen t (Slaughter 2004, 11). Currently the Committee of Nine on behalf of the Idaho Water Users Association manages water rights and allocation to the vast amount of traditional based actors on the Snake River. The traditional irrigation uses on the Snake River currently account for over 3.4 million acres of agriculture, constituting over 95% of annual Snake River diversions (Slaughter 2004, 4). This percentage is relatively static due to the Snake River 57


becom ing fully appropriated in the 1970s and a moratorium on new diversions made in the 1980s (Slaughter 2007, 316). The importance of this committee was due to the management structure that empowered the Committee of Nine to control basin wide allocation of water flows. Federal projects often operate separately and devoid of localized a ssessments due to the primacy of federal reserved FERC water rights. However, Snake River dams subordinate their rights to the discretion of the Committee of Nine in order to facilitate the allocation and distribution of water with in the basin. The sole hydropower right that was not legally subordinated to irrigatio n, that of the Swan Falls facili ty, was done in practice until the 1980s (Slaughter 2004). This de facto practic e became ingrained in legal doctrine after a mutual agreement was establishe d under threat of litigation. The hydropower rights of Idaho Power Co. at Swan Falls the only hydro rights on the river not subordinate d to irrigationhad been effectively subordinating their ri ghts in practice. In 1980 an agreement was reached under which the Companys water rights were a ffirmed, but the dam would continue to be operated in such a way as to not in terfere with upstream irrigation (Slaughter 2004, 12). Currently the Committee of Nine represents the bulk of Snake River water users and has thus served as an intermedia ry, along with the Id aho Water Users Association, to tribal claimants over water apportionment. History of the Snake Ri v er Tribal Interest: In regards to tribal interests there are several tribes that have historically inhabited the larger Snake River region. The three main tribes are the Nez Perce (coalition of tribes), the Shoshone and the Bannock. The history of Native Americans in the Snake River including the Shoshone and Nez Perce in particular are of di senfranchisement and contention with consumptive uses. Snake Rive r tribes have attempted to retain water 58


rights instre am for environmen tal reasons attributed to endangered salmon and other culturally significant species. The Snake Rive r though is currently successful as tribal rights have been codified, negotiated and settled through a collaborative agreement by consumptive, environmental and tribal actors. In Idaho, the precedent of federally reserved water rights under the Winters doctrine came under fire in 1999 in a lawsuit by irrigators over minimum stream flows. The result of the litigation asserted that th e Snake River Tribes, notably the Nez Perce, were without right to any water allocation. The district c ourt rule that the treaty signed with the tribe contained no implied ri ghts to water (Blumm 1991, 39). The initial ruling and the c ounter litigation from tribes led to the commencement of the current institutional settlement struct ure. Regardless of previous case outcomes both stakeholders achieved a settlement by which tribes would be apportioned water. This settlement and current institution is re fereed to as the Nez Perce settlement and adjudicates the water rights of the Nez Perce an d other tribes. Important within this is the transference of otherwise pape r tribal rights to tangible apportionments for instream usage. While the initial compromise was specifically geared for the Nez Perce tribe it has since been received by the other major tribes the Shoshone and Bannock. In particular, the agreement settled tribal water rights through a hybr id of Indian water rights resolutions and related Endangered Species Act agreements... the scope of [which] the settlement is broad and encompasses matte rs beyond the existence or nonexistence of tribal water rights (Hays 2006, 20) Furthermore barely more than a decade after their rights were terminated Nez Perce and other tribal claims to the Snake River were upheld 59


through collaboration (B lumm et al 2000). Th e current set of rights achieved through the negotiated 2005 settlement have since created a managerial capacity for tribal interests leaving them influential in many d ecisions regarding water allocation. 2005 Agreement and Collaborative Ma nagem ent along the Snake River The Nez Perce Snake River Water Act Settlement: The Snake River Act was negotiated and signed by; the Nez Perce, the Committee of Nine and the Idaho Water Users Associati on as well as the stat e of Idaho. This agreement which was expanded to include other tribal claims as well upholds environmental and tribal rights for water allocation. The agreement provides an excellent outcome for all parties involved. It accomplishes far more than litigation. It funds habitat restoration projects throughout the basin [as well as attribute minimal instream flows and allocated water for trib al interests] (Anderson 2003, 11). The beauty of this compromise in litigation is it circ umvented a hostile par tisan and activist local court system where Tribal rights were histor ically disenfranchised (Blum et al 2000). Incentives emerged to cooperate as the parties were already he avily invested in negotiations to resolve not only tribal water rights disputes but also to deal with the ESA matters which gravely concerned non-Indian water users in Idaho (Anderson 2006, 31). This negotiated settlement not only affirmed tribal rights but also enacted substantial changes to the allocation and distribution of water Settlement Criteria: Through what is referred to as a creative hybrid of water rights resolutions and Endangered Species Act agreements the Nez Perce Snake River Water Act was able to 60


collectively garner support to find comm on ground and agreem ent (Hays 2006, 20). The most important aspect of this agreement is r ecognized as the scope of the final product as the settlement was broad and encompassed matters beyond the existence or nonexistence of tribal water rights (Hays 2006, 20). The first main component of the agreement is the upholding of trib al rights of the Nez Perce and through it the reinforcement of other tribal rights such as the Bannock (of whom have supported this agreement). The second main attribute focuses on the ability and necessity to alter and maintain flows for environmental and tribal causes in the Snake River. In the actual agreemen t three main components of the settlement are recognized by scholars: The settlement involves three majo r components, with the first two serving as incentive for the state of Ida ho and private users to support a favorable settlement of tribal claims. First was th e desire for security for upper Snake River water users pursuant to a thirty year negotiated flow augmentation plan. Second was agreement on the fairly specific plan for an agreement under section 6 of the ESA for habitat protection and restoration in the salmon and Clearwater basins. Having satisfied those desire s, private water users and the state supported a tribal settlement with the following primary components 1. water for a variety of tribal uses on the reservation; 2.recognition of allotment water rights and a due process requ irement for tribal regulation of such rights; 3. For the transfer of on-reservation land valued at 7 million (estimated to be approximately 11,000 acres) from the federal bu reau of land manageme nt to the tribe; 4 a right to access and use of approximately six hundred springs and fountains on federal lands in off reservation areas; 5. tribal control of 200,000 acre feet of water from Dworshak reservoir; 6.Authorization of nearly 90 million for tribal water and habitat related improvements and 7. instream flow minimums at over two hundr ed locations selected by the tribe as a matter of biological and cultu ral priority (Anderson 2006,31). 61


A vital aspect to this agreement is that it spans the basin and is inclusive of more than solely Nez Perce claims. Other major tribal stakeholders in the area, specifically the Shoshone and Bannock Native American tribes agreed to these negotiation even though they did not have direct infl uence over or within it. The Shoshone and Bannock tribes pressured the Nez Perce to include them w ithin the settlement and to involve their departments and representatives within the discussion. The final agreement gave the Shoshone-Bannock, along with the Nez Perce, th e ability to negotiate instream flows in areas near historic territory. Thus wit hout being directly involved the ShoshoneBannock nation was afforded an influence in determining instream flow necessity, broadening the ramifications of this targete d agreement. This outcome was achieved through the Nez Perce represen ting the entirety of tribal claims enabling them to negotiate for other tribal actor s. The outcome is then that all tribal actors can jointly decipher minimum stream flow allocation in rive rs in historic territo ry and are consulted about other possible minimum flow changes. The southern Idaho tribes reached an agreement with the state recently ensuring they will be consulted if minimum stream flow standards are altered, and will be included in discussions about fish habitat restoration projects. The agreement allows tribal leaders to get be hind the settlement that they've long said will help threatened and endangered sa lmon and steelhead (U.S. Water News). Overall, the 2004 Nez Perce Snake River Water Act is significant as this institution guides the action of all water stakeholders in a substantive and positive direction. This collaboration reinforces hist oric treaty rights, and benefits environmental flows through recognition and action over instream rights. 62


The settlem ent agreement provides an excellent outcome for all parties involved. It accomplishes far more in terms of benefits for the tribe that would have been possible in litigation because it returns land to the tribe and provides funds to improve water systems also funds habitat restoration projects throughout the basin moreover, one reason th e settlement seems so favorable is because it provided an escape from a stat e court system hostile to federal and Indian water rights (Anderson 2006, 32). Long Term Outcome of the Agreement : The agreement is still quite young, however there have been no major conflicts arising since its implementation. The stakehol ders on the river have since been able to implement a successful water trust and water leasing program. This program has acquired and preserved water to supplemen t tribal instream flows. The legacy of this agreement is not yet written but the inclusi on of actors and broad scope of the agreement could benefit its consolidation as a successful institution. Conflict has increased recently within the Snake River over endangered salmon habitat issues. An ongoing lawsuit, initiated by the Nez Perce Tribe with the support of the National Wildlife Federation has been dir ected at dams and their impediment of salmon migration. This litigation though does not represent an overarching problem with the successful status of institutiona l development on the Snake River as it is directed specifically against dams and does not target water allocation. Overall the Snake River is an unconve ntional positive case study for the argument that originally postulated due to its preval ence in federal hydropower interests. However the interests on the river have been successful in managing water allocation due to prior institutional structure, nonetheless. Overall the Snake River institutions have proven effective and efficient in mitigating conflict over water use between irrigators and tribal 63


rights. The Snake River has overall dem onstrated institutional capacity historically and has manifested that through the cu rrent 2005 water right agreement. Driven by public policy, economic real ity, and individual desire to succeed, water users in southern Idaho have found ways to accommodate drought, expanding use, and changing public pref erences Since 1960 national policy preferences have changed, and the river has been fully appropriated. Still, emerging water markets, conjunctive ma nagement, flow management, and the purchase of water rights for in-stream use have largely kept up with water demands from industrial, municipal, a nd environmental uses (Slaughter 2004). 64


Western Water Case studies and characteristics Case Study: Attributes: Dungeness Snake River Cooperation or Conflict: Cooperation Cooperation Impetus: Chelan Agreement: and Sitting the Parties at the "table" Threat of Litigation over Stream Flow for Endangered Species Manifested: Dungeness River Memorandum of Understanding and DungenessQuilcine Plan: Nez Perce Water Rights Settlement Outcome: Resulted in the creation of the Dungeness River Management Team and the Dungeness River Water Trust Resulted in the rescinding of lawsuits over adjudication of river flow Vital components of outcome for environmental and tribal Stakeholders: Conservation of Late Summer water instream for Salmon migration; Irrigation reduced to 50% of traditional appropriative rights; Side payments initiated to increase the broaden benefit of the agreement Allocation of water for both Environment and Tribal Irrigation; Ability for Tribe to dictate over 200 locations for minimum stream flow regulation, Given control from Committee of Nine over 200,000 acrefeet water in reservoir Vital Components of outcome for Traditional Consumptive Uses: Avoided Litigation over overallocation of summer stream flow; Avoided Federal Restrictions placed by Endangered Species Act Section 7 and/or 9 over Water Allocation Security for Upper River Irrigators in a long term negotiated flow augmentation plane Main Actors Involved: Jamestown S'Klallam Tribe; Dungeness Water Users Association; Committee of Nine (behalf of irrigators); Nez Perce Tribe; Idaho Water Users Association; (Implicitly) State of Idaho, Supplemental Actors: Sports Fisherman; Environmental Groups; Recreational Consumptive Users; Property Owners; Washington Department of Ecology Shoshone-Bannock Tribes (Supplemental agreement); Environmental Advocates; Idaho Cattlemans Association Governmental Role: Minimal: State Agreement served as impetus for Actors to sit at table through the Chelan Agreement; State Recognition of stakeholders agreement came through legislative revisions pursuant to stakeholder negotiated agreement Moderate: Aided in allowing Tribal access and management over land and a fish hatchery; Side Payments were made to Irrigators for technological improvements 65


Yakima River: The Yakima River is a medium sized river located within Washington State. Development along this agricultural heartland dates back to the 1850s. The long-term utilization of water by both tr ibal and irrigation interest have done little to quench the fights over water allocation. Th e failed attempts at cooperation have featured two main stakeholders; consumptive irrigation interests and the Yakima Nation*, a collection of 14 different tribes. This section will provide background about the river stakeholders as well as provide an overview of th e history of attempts and failures of collective water management. This section will conclude with the current proceedings of water management and the dangerous path that it is taking in pursuing further development of the river. Tribal Stakeholders : The Yakima Nation reservation is the largest Native American reservation in Washington State occupying 23 percent of th e southwest portion of the Yakima Rivers watershed. As a confederation, the Yakima Na tion actually consists of 14 different tribes and bands of Native Americans incorporating around 8400 members (Kent 2004). The Yakima Nation manages its own Fish and Wildlife Resource Management program operating both on and off reservation lands (Kent 2004, 33). The Nation also collaborates with federal and state governments to run a joint hatchery program to increase fish stocks (Kent 2004, 33). Howeve r, this collaboration history does not influence their success in part icipation and collaboration over water use. While the tribe This thesis will use the anglicized version of the Tribal name to maintain consistency with the river terminology. In actuality the Tribe associ ates with itself the name Yakama Nation. 66


has been involved in planning several orga nizations the form ation of a long lasting collaborative institution is notably lacking. The Native American tribal stakeholders within the Yakima basin include and are consolidated under the Yakima Nation designation. This designated nation incorporates over 14 differe nt tribes including the Yakama, Palouse, Pisquouse, Wenatshapam, Klikatat, Klinquit, Kowwas-say-ee, Li-ay-was, Skin-pah, Wish-ham. Shyiks, Ochechotes, Kah milt-pah, and Se-ap-ca t, confederated tribes and bands of Indians (Yakima treaty 1855). These tribes were consolidated in 1855 under the Yakima treaty and were given a reservation under wh ich future water rights would be granted. This treaty ceded 10 million acres of Yakima land; however, the Nation retained the right to a reservation and the right to fish both within the reservatio n and outside of the reservation. In the mid 1880s white settlers began to encroach upon the ca ttle grazing area outside of the reservation. Th is encroachment in turn led the Yakima to transition to a less land demanding form of agriculture. The modern day Yakima Nation is then currently advocating for adhere nce to tribal treaty rights not solely for environmental benefit, but rather increasingly for tribal irrigation demands. In the late 1880s to early 1900s the government started leasing Yakima treaty land to non-Yakima settlers for a basic fee. This leasing proved problematic as the Yakima River became increasingly appropriated and eventually a drought in the late 1880s spurred the Bureau of Reclamation to create a Yakima project to generate secure water supplies. In 1906 with the construction of the Yakima project the Nation was forced to accept the superior 67


water rights of non-tribal settlers as well surrender 80% stream flow to the non-tribal irrigators. E ventually the Yakima na tion protested to Congress and said Our riparian rights are older than those of the white man. This reservation we were permitted to hold when the government took our other land. Water is life and belongs to the earth the government has set still and let our water be stolenWhite man is better farmer than Indian. Indian only understands horses and cattle. Reclamation Service make high cost water, high cost drainage.. We own half of Yakima river and all water in reservation, but we are not protected in any rights (Pisani 2002, 191). The Yakima Nation has persisted in dist rusting the government as without its consent or participation the tribes water us e was adjudicated (qua ntified) from actual quantity usage between 1977 and 1992. While this attributed the tribe(s) with a quantified water allocation it was also done in a manner unbefitting of collaboration and trust among stakeholders, thus generating a leg acy of distrust in p articipation efforts (Brown 1994, 8). The Yakima Nation and the wi der watershed have a history of past failures in collective participation and current undertakings have mirrored this through conflict and tension. Consumptive Use Stakeholders : Farming within the Yakima started in the 1850s, with the first development of irrigation ditches leading to widespread irrigation in the 1860s. Since this time the watershed has grown exponentially to service thousands of agricultural farms. This agricultural growth has led the watershed to become one of th e most intensively irrigated areas in the country. The Yakima project currently irrigates around 558,000 acres in the Yakima basin and does so through the use of: si x storage reservoirs, five diversion dams, and hundreds of miles of canals, drains, and laterals (Kent 2004). Furthermore, the 68


watershed c urrently hosts 23 municipalities constituting around 1% of the total water basin land area (Kent 2004, 33). Irrigation municipal and commercial uses have led to the over-appropriation of water that, in most years, has inadequate supply to meet the existing demand (Kent 2004). Due to frequent droughts the water supplies of this region are furthermore ill conducive to irrigation, yet th e region has become highly agricultu ralized. With barely eight inches of annual rainfall, this monochroma tic, semi-desert area produces more apples, mint, winter pears and hops than any othe r county in America (Singleton 2002, 10). Due to a prior judicial decision the mo st senior rights holders (pre-1905) are non-pro-ratable and never fail to acquire necessary water allocation. Since 1945 water to junior appropriators has b een shut off 10 times and the ra te is increasing per decade, leaving the existing junior appropriators ner vous about the future of water supply (Kent 2004). In accounting for the high variability of water, irrigators are strongly suited to want to settle water allocation fights, either through litigation or ne gotiation. However, there has yet to be any substantial agreem ents regarding basin wide allocation among stakeholder interests. Irrigation, tribal and environmental interests each maintain a strong advocacy presence within the region, in the expectation of legal fights over allocation. Times of drought have become the spark th at sets of the proverbial powder keg, evidenced by high amounts of litigation over water allocation. History: In 1903 local residents petitioned the govern ment to pursue projects in their area pursuant to the passage of the 1902 Federal Recl amation Act. The Yakima project, as it would be later called, was one of the first pr ojects pursued under the act and introduced 69


large scale water storage and com prehensive irri gation planning to the valley (Kent 2004). After the appropriation and ad judication of the Yakima water rights the state and stakeholders attempted to implement a ne gotiation between wate r users and tribal interests. This program would be undert aken with the backing of the earlier 1990 Washington state Chelan agreement. The Yaki ma, incorporated as a trial site for the planning effort, would eventually falter and fail in the face of distrust and tension between stakeholders. Chelan Agreement and Failed Attempts to Cooperate: As was discussed in the Dungeness chapter, the Chelan facil itated a conversation between representatives from a variety of st akeholders. The agreem ent generated out of the 1990 retreat was effective in determining governance and policy objectives, however, it was superficial in terms of addressing water allocation a nd use (Brown 1994, 5). Initial reluctance was expressed by the Yakima tribe ove r asymmetric inclusion of Public Utility Districts as a government actor. Finding fault in the represen tation of irrigation districts as governmental entities the tr ibe feared the inclusion of so many pro-consumption water stakeholders would inevitably lead to a cooptation, or the in clusion and suppression of a minority opinion in order to appear legitimate (Singl eton 2002, 14). However, soon into the implementation of this agreement a nd following initiation of the organization, the disgruntled Yakima tribe once again felt th e way in which the talks were going were inconducive to proper tribal representation (B rown 1994, 9). This perception led to the reluctance and revoking of participation by the tribe as they fe lt that stakeholders simply compounded the votes for consumptive uses. The Watershed Management Plan nonetheless was continued without the tribes pa rticipation and curren tly another form of 70


the plan h as been implemented, once again wi thout the inclusion or acceptance of the Yakima Nation. Conflict Rather than Cooperation: Conflicts between the Yakima Indian Nation and big agriculture have raged far longer than anyone can remember (Singlet on 2002, 11). The Yakima River Valley, known to be the states Republican dominated agricultural heartland, has long had failure over water allocation. In 1992 a group of irrigators gathered to collectively organize a solution to the problem of water scarcity. This agreement, formulated under stress of a major drought, was destined for failure. Th e Yakima River Watershed Council (YRWC), as it would come to be called, resulted in such failure and contention that any further collaboration is highly suspect. The legacy of suspicion and sens e of betrayal among YRWC participants subsequently made it all bu t impossible to organize a viable citizensbased planning process. The result has been a fractious, ineffective effort that lurches from one crisis to the next, and is barely able to gather a quorum for public planning meetings (Singleton 2002, 12). Furthermore, the tribe became so disillusioned that to this day they have refused to engage in a ny collaborative planning effort regarding water allocation. Overall the brief legacy of the YRWC would suggest an ability to cooperate, however the components of the council were inef fectual. The councils inadequate scope and abstract paper agreement outcomes represen ted an overall failure of collaboration as well as highlighted an inability to tackle substantive concerns. Currently, even attempts at water transfer programs belie the problems evident within the case. According to interviews c onducted by Kent et al. 2004 the conclusion as to why individuals are reluctant to en gage in a transfers is due to the 71


high lev el of mistrust between the agricultural community and resource managers from both state and federal agen cies; this mistrust is based on decades of miscommunication and mi sunderstanding; furthermore, irritators generally dont believe they have enough water to trad e; doing so would either force them to give up farming or suggest they had too much water in the first place (Kent 2004, 52-53). The first water transfer program on the Yakima originated in 1996 le d to paltry returns (Landry 1998, 8). Water tran sfers under the Washington Water Acquisition Program are completely voluntary, and participating water ri ghts owners do not re linquish their rights or priority date under the prio r appropriation non use rule. Stil l, one of the big problems is finding willing sellers; Yakima basin partic ipation in the program has been almost nonexistent (Kent 2004, 52). Many further attempts have been made at collaborative management yet the outcomes of these programs vary substantia lly. Generally, the outcomes have either regarded an area separate from water allocation, (sidestepping the issue) or have been paper agreements, which lack substance. Within this study the lack of longstanding significant agreements, the high level of tens ion between stakeholders, and the general inadequate paper agreements constitute a ca se failure in collaborative planning (Kent 2004, 45). More troubling is that recent expe riences have led to increased federal involvement and the reemergence of the idea that higher, larger development dams will guarantee successful dist ribution and supply. Current Status: Currently the status of the Yakima Rive r basin in managing water is reverting back to the concepts presen t at the beginning of the 20th century, that of developing larger scale hydroelectric projects. The Yakima irrigators are curren tly undergoing a process 72


with the Bureau of Reclam ation wherein they are seeking one of two outcomes: first to develop another large storage system or de veloping more supplies of water through basin transfers (Kent 2004, 46). These two proposal s are the creation of the black rock reservoir and an attempt to supplement the Yakima with excess water from the Columbia River (Yakima Basin Study). Rather than dealing with managing current water supplies the area is trending towards the develo pment of a major storag e facility at Black Rock Valley, rather than working on s ubstantive improvements (Kent 2004, 50). The current state of this basin is mirr oring the development of the early 1900s when politicians advocated development of the rivers as a panacea to water supply concerns. However unlike the early century the major allocation problems over the resource is not within the future but curre nt, and as such, any increase in development will simply exacerbate the conflict. At the same time as the Bureau of Reclam ation, irrigators and state are looking to further reservoir and storage capacity the state and federal government has already sought to develop a framework for water basin mana gement with tribal interests. This framework called the Yakima integrated Water Resource Management Plan is a framework that was initiated and has several provisions that look at face value to benefit environmental causes and in one case actually target the postulate d rationale under the current inefficient outcome. One such provision of the new plan is to subordinate power generation water rights to instream flow at one station on the Ya kima, while this may benefit the basin; the actual outcome is dependent upon implementation (Yakima Working Group Study, 4). Another substantiv e provision of this agreement (even though it has yet to be actually agreed upon by any means) is the reduction in irrigation 73


appropriation by 30% during drought years (E CY Prelim inary Plan). The initial provisions of the agreement look promising. However this agreement is still in the planning stages and has yet to be certified by any active stakeholders, and as such, the success of this is still undef ined. Furthermore any gains evident from this agreement could be counteracted by the attempt to rei nvigorate the storage poten tial of the river. The Yakima story illustrates that pe rhaps the outcome of this societal choice is not so uniform. It may be premature to proclaim the end of the resource development paradigm; instead, after severa l decades of relative inactivity, a new era of developmentat least in certai n circumstancesmay be upon us. If this prognosis is correct, the Yakima Basin pr ovides an example of when and how a focus on water supply development can still dominate water resource planning (Kent 28, 2004). 74


Klamath River: The Klamath River is locate d predominantly in Oregon however the mouth of the river and a minimal number of actors reside in northern California. The Klamath similar to the Snake River has overall apportionment dictated by an interstate compact. This overall Klamath basin was first occupied by the Klamath Tribes; a collective grouping of several separate tribes wh ich consisting of mainly th e Klamath, Modoc, and Yahooskin tribes. These tribes ceded 20 million acres to the U.S. Government pursuant to an 1864 treaty. A portion of this la nd would become the Klamath Ri ver Bureau of Reclamation Project and constitute a subs tantial irrigation presence. This case study highlights the relevant actors within the river basin, outlin e the historic conflict that has plagued this watershed and conclude with the current status of the watershed. Overview of Relevant Stakeholders : Bureau of Reclamation : Remote, wild, half forgotten, the Kl amath was a perfect example of how God had left the perfection and completion of California to the Bureau of Reclamation (Reisner 1986, 267). The Bureau of Recl amation has without a doubt been a major player in the ongoing struggle for control ov er the Klamath River water rights debate. The Bureau of Reclamation has consistently maintained administrative, allocative, and managerial responsibility for this basins wa ter supply. The Bureau of Reclamation as well as PacifiCorp, the hydropower marke ting agency, has become intertwined in management over water supply. The Bureau of Reclamations current Klamath 10 year project plan 2002-2012 has attempted to create a water bank and operation plan to maintain a status quo for environmental flows. However, this current plan has included 75


lim ited consultation by federal environmen tal regulatory agencies and virtually none from stakeholders. This current plan thus mi nimizes the extent of influence that tribal and environmental actors have over the ne gotiation and management of day to day operations. Tribal Stakeholders: The Klamath River watershed is home to several Native American tribes, among those are the Klamath and Modoc tribes in the north and the H oopa, Yurok and Karuk tribes in the south. Historically, these trib es have inhabited over 20 million acres of Oregon and California however their current landholdings are but a fraction of this amount due to treaty concessions. Within the hi storic treaty the trib es have maintained the right to pursue tribal allocation of water. Most tribes maintain a small centralized organizational structure yet have a very d ecentralized population due to the Termination Act (Doremus 2008, 69). Native Americans have always had a legal identity dating back to chief justice John Marshalls charac terization of domestic dependent nations in 1830, however, within the Klamath the margin alization of this identity through the Termination Act has contributed to manage ment inefficiency (Doremus 2008, 61). Termination Act: While in 1950 the Tribes were prosperi ng and considered one of the most economically successful in the nation the Te rmination Act sought to re-assimilate them into the society. The Termination Act form ally dissolved the Klamath tribes in 1954 through reparation payments for tribal la nds(McKinney and Harmon 2005, 2). This policy would cost the tribes a quarter of th eir land as well as ending federal services. 76


In 1986 the Klam ath tribal designation was restored, however no land was reallocated or restored to their possession. The current extent of the collective tribal reservation is currently 372 acres that is jointly shar ed by the Klamath, Modoc and Yahooskin tribes (Doremus 2008, 66). While land and culture was irreparably altered due to the Termination Act the tribe has maintained the benefits from continual recognition of tribal claims to water. The tribe, even while dissolved, retained tribal water rights due to a clause within the act stat ing that nothing in this [Act] shall abrogate any water rights of the tribe and its member s. Nevertheless, as the tribes suffered, outsiders sought to contest tribal claims over water (McKinney and Harmon 2005, 2). The actions from the 1950s on have led to a severe distrust and enduring bitterness between the tribe and white comm unity (Doremus 2008, 65). Tribal Rights: The Klamath tribes are unlike other trib es due to their claim over water being for purely environmental reasons. Unlike other trib es such as the Yakima Nation there is not a strong recent nor historical tradition to farming in th e Klamath region. Although tribal reserved water rights claims may open th e door to discussions about stream flow restoration, in practice the Mc Carran amendment era has redu ced these claims to mere bargaining chips rather than vehicles for ach ieving the purpose of reservations through stream flow restoration (Dor emus 2008, 73). Conflict over the Klamath rights may thus have an extra dimension due to their status as the sole bargaining chip for tribal claim recognition. The tribal reserved water rights are of ten used as a political component and the tribes have expressed interest in trading seniority of water claims restoration of tribal 77


lands and a subordinate water right. Regardless of motive a nd desire the Klamath tribes have sought to maintain instream flows so lely for environmental benefits. The exact environmental resources at stake and thus th e root of much of c onflict are species of suckerfish and salmon. The attempt to ma intain water flows for these culturally significant species have enc ouraged environmental and fishermans groups to lend backing to Klamath tribal claims. Overall tribal stakeholders within the Klamath have a storied history of disenfranchisement and distrust to consumptive stakeholders. The tribe currently pursues allocation of tribal reserved rights to supplement instream conditions for culturally significant species of fish. This sole envi ronmental goal has led to the socio-political support of environmental groups such as the Si erra club as well as commercial fisherman. The current major fight in this watershed is between the tribes and traditional consumptive irrigators. Irrigation Klamath Wate r Users Asso ciation: The Klamath Water Users association was started upon implementation of the Bureau of Reclamation projec t authorization in 1905. Develo pment of the Klamath River basin originally began as a single project by the United States Bureau of Reclamation in 1905 (Slaughter 2007, 308-313). The area was not however opened to homesteading until 1917 and the project was not fully comple ted until the 1960s. The project annually diverts about 1,345,000 acre feet of water to irrigate 400,000 acres in the Upper and Lower Klamath. Due to this watershed const ituting a single Bureau project the entirety of the case is under federal reclamation law apportionment (Slaughter 2007, 313). Until the 2001 explosion of conflic t over water appropriation the Klamath was deemed a 78


successful project. This success story was due in part to the secluded atmosphere, the proficient cropland, and high availability of water, wh ich resulted in a hom estead retention rate of 65%, well over average (Rowley 2006, 214). Completion of the [initial portion of the] Klamath Project in 1907 (the second-oldest USBR project in the country) ensu red water for farmers attracted to the area by the governments offer of free, recently reclaimed, irrigable land (McKinney and Harmon 2005, 2). The Klamath has maintained a high homestead re tention rate with the vast majority of irrigators being individual families. Corporat e agriculture plays litt le to no part in the Klamath and most water diversions for farming are by hous ehold and livelihood farmers (Doremus 2008, 54). While water was once plen tiful, with an averag e storage surpassing 133% of average use, water shortages are increasing in frequency (Slaughter 2007, 311). Due to an increasing scarcity in the once a bundant water supply agricultural food crops have become too water intensive for an effi cient payoff (Doremus 2008 51). Individuals have since transitioned to non-intensive non-food crops such as hay and alfalfa. The operation of the Klamath Bureau of R eclamation project is directly the result of continuing litigation which attempts to maintain a status quo favoring irrigation. Reclamation has an obligation to deliver water to the project water userssubject to the availability of wa ter water would not be available, for example, due to drought a need to forgo di versions to satisfy prior existing rights, or compliance with other federal laws such as the Endangered Species Act ( Doremus 2008, 99). Conflict between the two stakeholders is ofte n instigated over the level shifting necessary to force operation of the dams in complianc e with the Endangered Species Act. The irrigators, when contested with environmental or tribal clai ms, counter that government is unlawfully taking of a legal possessed ri ght (Doremus 2008, 100). The end result of this clash of claims has manifested during droughts and has led to both irrigation and 79


trib al interests to address any further claims through litigation rath er than coordination and collaboration. Conflict: The Klamath River basin has recently become synonymous with water conflict in the western United States. The first major drought crisis, and subsequent failure in cooperative management, came as a result of an extreme drought in 2001. While there had been several previous less severe droughts, conflict did not generate to the extent that it did in 2001. This was often because water di versions were maintained for irrigation and resulting shortages were at the expense of instream flows (Slaughter 2007, 313). McKinney and Harmon (2005) best sum up the lead up to conflict as despite occasional dry years and in tensifying discord among irrigators, the tribes, and wildlife management agen cies, basin residents saw little incentive to engage in preemptive drought planning. In fact, after decades of antagonism, the different factions in the basin appare ntly preferred to plan through litigation, filing no fewer than 15 water-related la wsuits during the 1990s. The stage was setawaiting a drier than usual yearf or a major battle over water in the Klamath Basin (McKinney and Harmon 2005, 3). The story of the 2001 drought is evidence of a total collapse and inadequacy of an informal cooperative institutional structure to ma nage the resource. In the lead up to the 2001 drought the Klamath River basin had the four consecutive years of the greatest rainfall ever recorded. However, in 2001 the precipitation levels dr opped to 55 percent of the average, with snow pack, the indicator for future flows, measur ing just 21 percent of average (McKinney and Harmon 2005, 3). This drastic and sudden occurrence of the drought left the region ripe for conflict be tween tribal, environmental and consumptive users. Conflict first manifested litigiously as twice during the initial drought, irrigators pursued challenged tribal claims over wa ter allocation (McKin ney and Harmon 2005, 2). 80


In each case the federal courts ruled the prim acy, seniority, and precedence of tribal water rights (McKinney and Harmon 2005, 2). Farm ers continued to demand their allotted rights in the face of federal Bureau of Recl amation actions to withhold water pursuant to tribal claims for migratory salmon and su cker fish (McKinney and Harmon 2005). When the federal judicial action failed to maintain irrigation claims, conflict manifested physically. Farmers organized and stormed the head gates of irrigation canals forcing the diversion of water. This ac tion was met with the government posting of armed federal guards at the Bureau of Reclamation head gates. After direct action was ineffective, farmers proceeded to use intimidation and scare tactics to force tribal relenting of claims. One such example was evident in the actions of several farmers were these individu als were arrested afte r they drove through a tribal town, shotgun in hand shooting signs a nd buildings, yelling Sucker lovers come out and fight! One such instance threatened human life as these farmers interrogated a group of children assumed to be Indians while shooting over their heads (Mckinney and Harmon 2005, 5). These anecdotal referenc es serve to highlight the conflict and ill will that resource conflicts have manifested in the Klamath River.. From physically overtaking and forci ng head gates open to armed violence against Native American tribes, conflict re igned in a situation that was met with cooperation in other river basin cases. Even mediation failed as dispute resolution attempts each devolved into a contentious and unproductive affair. At the conclusion of the drought the economic losses of irrigators were claimed to have surpassed 250 million dollars, although this figure is itself c ontentious (McKinney and Harmon 2005). 81


In the following year drought struck again with political pressu re leading to the full allocation of wate r to irrigators, in spite of a National Research Council study showing the opposite was necessary. The failure of da ms and irrigators to comply with the endangered species necessa ry water allocation serve to highlight the general inefficiency of Federally stimulate regulat ion to resolve resource conflicts (McKinney and Harmon 2005, 6). While the USBR was able to set aside minimum additional water for environmental concerns, September saw a massive fishkill of 33,000 endangered salmon and steelhead (McKinney and Harmon 2005, 6). The exact reason for this mass mortality event is still debated but most ev idence points towards low water levels being the cause (Powers 2005, 2). The Yurok tribe in 2002 filed suit after th e salmon deaths in the lower Klamath seeking a court order requir ing the Bureau to opera te the project in a manner consistent with the tribal rights. This claim was dismissed and no further operation procedures were warranted for the Klamath Project dams (Doremus 2008, 75). A revised National Research Council report wa s issued in 2007 that critiqued and the criticized the Bureau of Recl amations scientific assessment of baseline flows and overall dam operation. The horrendous effects, both agricultura l and environmental, of the 2001 drought led to outrage by environmental and traditional right claimants. This outrage has instigated the Bureau and the federal government to implement strategies for an attempted solution, however many of these have failed or masked the problem. The most evident of such programs or projects have been federal monetary payments for damages and water banking. Both of thes e programs mask the underlying issue of a failure to delineate and allocate among resour ce stakeholders. Subsequent programs to 82


the drought have included the Klam ath Basi n Stakeholders Workshops, or Chadwick Workshops. These workshops have provided th e closest to a collaborative environment, yet have stalled due to the lack of power. To date, no s ubstantial allocative outcomes have been enacted. Overall the programs spawned out of the 2001 drought have not been successful in attacking the underlying issue, rather they are masking the problem with federal compensation. Current Action: Currently the status of the Klamath negotiation between tribes and irrigators over water allocation has been neglected in favor of direct dealings with the federal Bureau of Reclamation. Otherwise the only notable stat e and federal action ha s been seen as the Federal Regulatory Relicensing agreement fo r the Klamath project dams (FERC) has produced a draft agreement sugge sting the removal of four of the dams (Doremus 2008). While this decision may seem significant it ha s yet to truly manife st as anything more than a draft proposal and notable among its detr iments are that PacifiCorp (the operators of the dam) are not a party to the proposal agreement, furthermore, vowing instead to fight it (Doremus 2008). Recently the accord was signed in 2010 ove r the future of the Klamath River. This pact possibly cemented the terminal fate of four of the dams on the Klamath River and culminated with a restoration plan valu ed at around 1 billion dollars (NY Times Feb 19, 2010). However, while there is immense substance to the agreement the actual effect of it remains to be seen, as it wa s primarily an imposed outcome lacking any substantive agreement between irriga tors and environmental interests. The social cohesion that allowed some communities to develop successful irrigation on their own 83


arrived in the Klamath Basin only in the wa ke of federal reclamation dollars (Doremus 2008, 47). Overall the Klamath River basin has represen ted the failure of the stakeholders to collectively organize and manage the resource. Furthermore, failure is attributed to the federal government in adequately achieving policy between these two polarized actor networks. In closing, the quote by Holly Doremus in her work Water War in the Klamath Basin best identifies the poor outlook of the Klamath situation. To non-lawyers it may seem strange that so much reliance has been placed on the courts to solve the proble ms of the Klamath basin. Courts cannot fund new reservoirs to augment supply, re move dams that block fish runs, or develop an alternative vision for the landscape. Although courts are powerful actors they are institutionally required to be reactive the important point is that even the most activist court cannot reso lve the complex envi ronmental conflicts like that in the Klamath basin independent of political branches that the Klamath basin is still such a troubled and contested landscape after two decades of nearly constant litigati on is ample evidence of the limited power of lawsuits to provide enduring fixes. (Doremus 2008, 166-167). 84


Western Water Case studies and characteristics Case Study: Attributes: Yakima River Klamath River Coop/Conflict: Conflict Conflict Impetus: Low recorded Stream flow and Drought Conditions Drought Conditions and major Salmon Die-Off Manifested: 1992 Litigation and Recurring Dissolution of Agreements 2001 Litigation; Social Conflict; Ethnic based Violence Outcome: Yakima Nation revoked participation in Agreements: Involvement of Federal Government through "Jeopardy Bi-Op" over salmon Actors pursuing a renaissance in hydro-development to suppress institutional inefficiencies Litigation over allocation of water; disenfranchised traditional appropriative "Property Rights;" Alienated tribal and environmental stakeholders from management Recent history of distrust, conflict near inevitable Vital components of outcome for environmental and tribal Stakeholders: Tribal and Environmental stakeholders have withdrawn from recent attempts to create management teams in favor of attempting to address concerns through litigation Initially were allocated minimum stream flow by federal agency however in year two of the drought political pressure mounted and led to an inextricably linked massive salmon die-off Vital Components of outcome for Traditional Consumptive Uses: Yakima River Stakeholders have created numerous "paper" agreements that lack substance to water allocation and all recent "agreements" are without participation by the tribe Water rights were seized from control. Due to the new uncertainty in traditional water rights, stakeholders have lost legitimacy and been thrust in polarized contention with environmental and tribal claims. Main Actors Involved: Yakima Nation; Yakima River Irrigators; Washington State Klamath Tribes; Klamath Water Users' Association; Bureau of Reclamation Supplemental Actors: Yakima River Watershed Council; TriCounty Water Resources Agency; Pacific Coast Fishermans Association and Environmental Advocacy Groups such as the Audubon Society and Trout Unlimited Governmental Role: Moderate Involvement Through suppression and damage payments. Attempt to bring interests to the table under Chelan Agreement. Imposing regulated stream flows pursuant to a Jeopardy Biological Opinions. High involvement in the Federal and State Forced action to reinforce tribal and environmental rights Restored irrigation rights pursuant to backlash High amounts of monetary assistance to stifle litigation and suppress conflict 85


Chapter 4: Discussion and Analysis: Two of the four cases analyzed within this thesis can be argued to have success in collective allocation of stream water. These two cases, namely the Snake and Dungeness River, differ quite remarkably on basin attribut es. With major attribute differences such as scale, volume of actors, and history of st akeholder interactions these two cases provide radically different institutional structures Under Mancur Olsons assumptions the Dungeness River represents a stereotypical su ccess story due primarily to small size, consistent actor interaction, and homogenous stak eholder types. However, such a theory does not predict the polarized yet successful Sn ake River case. This case with attributes such as a large resource base, multiple fractioned interests and historic opposition to stakeholder interaction, would presumably doo m institutional formation. However, as this thesis has upheld the Snake River as a positive case study, Ostroms framework then becomes the institutional lens through whic h the cases are contrasted. The rationale within this thesis is to apply the cases to the Intuitional Analysis and Development framework in order to highlight the institutio nal differences that have allowed the two such drastically different cases to succeed in water allocation. Each of the cases, within the pr evious chapter, is simila r due to a basic underlying property right framework, and a similar typology of actors and actor in terests. The four case studies mentioned in the previous section ar e consistent in an underlying property rights structure by means of th e prior appropriation doctrine. Since property rights are constant among all four cases the doctrine of prior appr opriation does not explain the variation between conflict prone and c ooperation cases. The Dungeness and Snake Rivers, representing the dependent variable of cooperation along the river, have found 86


success in creating instituti onal arrangem ents over water allocation. Within these agreements the recognition of rights commonly considered outs ide the realm of the prior appropriation doctrine are held standard. These institutions r ecognize tribal and environmental rights, as well as, traditional consumptive rights. These two cases vary considerably in physical and re source attributes, yet these characteristic differences are unable to explain variation fr om the conflict cases. In order to pursue the causal mechanism which has facilitated institutional development the next few paragraphs will view the cases from the Institutional Analysis and Development framework. This thesis assumes that the western case studies are representative of a common property, or common pool resource. As a co mmon pool resource they are subject to a difficulty in the exclusion of actors and a subtra ctability with use. While critics may argue watersheds are a priva te or purely public good, this thesis maintains a scope of reference of the river basin as a whole. Thus at this scope of analysis the level of distribution and allocati on over the resource is the authoritative duty of the state and is subject to common resource problems. The following section of this chapter analyzes the cases under the Institutional Anal ysis and Design framework, highlighting the institutional variant with in the independent variable. The causal mechanism, by which hydroelectric dams are found to affect stak eholder rights, is through federal dam licensure and the ability to control the resource flow. A licensure subsequent control over water flow by dams t hus impedes the ability for stakeholders to collectively decide resource allocation. This section c oncludes by attributing the operational control by dams as af fecting the dependent variable. 87


IAD Framework and Analyzing of the Cases: This section will analyze the four case studies and argue that under the IAD framework the rights of self management ar e an emphasized difference between cases. The ability of stakeholders to retain mana gement rights, covered on page 17-18, is found by this thesis to being integr al to the cooperation and colla boration of interests over the management of the river. Within the cases where water allocation is subservient to hydropower interests, and stak eholders are not delegated management rights, conflict would then be expected. Conflict, as ope rationalized by this thesis, represents the necessity for stakeholders to pursue alloca tion interests through litigation, both intrastakeholder and level shifting litigation, in or der to attain an allo cative desire. The section will then seek to address the diffe rences highlighted through the institutional analysis and design framework. Finally, this section will correlate the presence of hydropower dam operations to the differences observed between case study groups. This section will cover each of the eight com ponents of the IAD framework numerically; however, the second and third component, whic h best explains the observed variation, will be dealt with last. IAD Framework 1: Boundary of a Resource: One critical component to managing a co mmons is constraining the number of actors present within the system. Often th is exclusion is atta ined through legal or biophysical means. The geography of the Northw est lends itself easily to establishing a geo-political boundary to water resources. State governments thr ough prior appropriation have sought fit to appropri ate the common property of ri ver water based upon the source of the water. The water rights, allocation and exclusion are thus affixed to the source of 88


the water. The geophysical nature of a wate rshed combines with property right dynamics to create a legally and phys ically bounded resource. This boundary revolves around the main stem of a river as well as the tributarie s of the larger comple x river system. This creation of a bounded or confined resource base creates a bounded system, which is shown to be more successful in the monito ring and exclusion of actors. Through limiting actors and creating costs associated with th e increasing utilization of resources the tragedy of the commons problem is averte d. A hypothetical example of management efficiency in regards to scale is evident in the comparison of managing an defined bay versus the global ocean commons. The prior appropriation doctr ine ensures that the resource is only allocated to stakeholders within the watershed, thereby effectively tying actors within an area to physical location of use. To elaborate, while many actors may desire or claim right of access to the resource it is only those stake holders legitimized by federal backing or state appropriative rights that are allotted rights. Effectively for actors to gain recognition as a stakeholder they must pursue a legitima te appropriative claim or utilize the existing federal framework. While the Snake and Yakima could be (and are) considered a smaller part of an overarching system (the Colu mbia River) the prior appropriation doctrine separates these entities through legal jurisdiction. Common among all the case studies is the idea that in some way the resources, as well as the stakeholders within the resource, are bounded within the legal designation that differentiates them from actors. The cases in the Northwest seek to utilize this clear resource boundary as a form of political boundary. Regional political institut ions often serve at a basin wide level. Furthermore, this boundary limits resource user s and identifies stakeh olders relevant to 89


the system In restri cting the transfer of water between basins this political component isolates the case watershed from anothe r bounded resource. This overall resource boundary reduces the subtractib ility of the resource and complements the ability for exclusion within each case study. Cons training actors throu gh over appropriation claims and moratoriums on new permits exclude s any further increase in actors. This component then minimizes the Hardinesque threat of an increasing number of actors fighting over a dwindling resource. Two of the case studies not only benefit by a legal jurisd ictional boundary but also through a true physical boundary. Physically, the Klamath and Dungeness River basins are the most secluded of the ca ses and are bounded by higher levels of geophysical isolation. These resources both be nefit from geophysical constraints that collectively further limit actors on the system. Both cases due to sc ale and isolation are reluctant to identify with outsiders and thus impose further constraints on outside actors seeking to enter the resource. Intrinsicall y, this should serve as a rationalization for greater chances for cooperation as the dominant interests exclude others entrance into the resource. However this again exposes a difference as both cases vary in the success, and failure, over institutional allocation development. From an attribute standpoint this aspect would tend to suggest individual stak eholders share a common sense of identity and could benefit from sustained interaction among stakeholders. IAD Components 4 and 5: Monito ring and Sanctioning Violators : Within the case studies another IAD com ponent that is visibly consistent among all cases is that of monitoring and enforcement of rules. Collectively these two attributes are quite present and proficient within basi c prior appropriation water law. Specifically, 90


the usage of state engineers, water masters and other organiza tiona l aspects facilitate the success monitoring and sanctioning institutions. The general doctrine of prior appropriation compensates for monitoring and enforcement issues through such entities as the water master and the state engineer. A water master is an entity that is selected to monitor and enforce the allocation and distribution of water from a given stream. These individuals, or organizations, are selected by the water users association and given an acquiesced a ppointment by the state government. The water master is directed to monitor the water withdrawals of permit holders to preclude cheating a nd is solely delegated with monitoring for water rights, priority dates and accountability. In each case this entity is directed and responsive to the state engineer or an associat ed extra-legal entity. Two su ccessful examples of an extra legal entity are the Snak e River Committee of Nine and the Dungeness water management team. An important aspect is that extra legal entities ar e not necessary to be instituted prior to institutional agreement but rather may arise out of such agreement as was seen on the Dungeness River. In the Dungeness, monitoring is done at a three pronged level: by tribe, the irrigators, and water master thereby providing multiple levels of enforcement and monitoring capabilities. Another entity with enforcement a nd monitoring capabilities over water allocations are water users districts which ex ist within each case as collective irrigation entities. These pseudo-governmental entities will monitor individual irri gators in order to ensure collective equitable dist ribution pursuant to allocation di rective. This system is often seen as another small scale institution and could be considered a micro-arena, however it is rather a layer of enforcement within a larger nested system (Ostrom et al 91


1994; McGinnis 2011). This thes is however will not delve any further into this micro arena. IAD Component 6: Access to Conflict Resolution Mechanism: The institutional analys is and development framewor k sixth component regards mechanisms for conflict resolution. This is m eant to allow stakeholde rs to address their concerns outside the court of law. Due to th e variety of forms conflict resolution can take this paragraph will cover how gove rnmental is involved within th is process. Alternative dispute resolution mechanisms are primar ily seen as a byprod uct of institutional developments such as the Committee of Nine and the Dungeness River Management Team. The Snake and Dungeness River have the most evident abilities to mediate outside of court however many other opport unities do exist. In many cases all stakeholders have a advocacy or authoritativ e entity that will represent the actor in any discussions and framework. Within each case study there ar e often two major government influences evident to avoid litigation and concepts. One such avenue is institutional support through devolut ion of otherwise centralized power. The two successful case st udies received financial support however drew strength to organize from a devoluti on of power. The Yakima and Dungeness were also both direct beneficiaries of the devolvi ng of power through the Chelan agreement, however due to other components, result ed in contrasting outcomes. The two Washington case studies were selected for si milar conflict resolution mechanism however the circumstances surrounding both cases show th at this component was irrelevant to the outcome. 92


The second form, financial incentives, was seen within the Klam ath and Snake Rivers where, regardless of consistent federal support, both have dive rged in their ability to formulate effective agreements. The Kl amath River itself, through multiple avenues, has received well over 100 million dollars in federal funds (Powers 2005). The funds within this region have been attributed to suppressing conflict and, have proven only temporary solutions, due to continual devolving into conflict. Conversely the monetary value of the agreement on the Snake has pr oven beneficial to a positive outcome. Financial support in the Snake River of ar ound 30-40 million is substantial yet pales in comparison to the scale of Klamath support. The main difference between the two cases is that funding along the Snake River has worked to solidify an agreement, serving as a side payment, whereas Klamath funds have b een geared towards re parations and conflict suppression. Overall while several forms of dispute resolution ar e evident within the cases there is no observed tendency that would suggest one form is more effective than another. IAD Component 7: Recognition of Rights to Organize: Another vital component of Ostroms fr amework is the abil ity for stakeholder groups to organize and receive government reco gnition. In the western United States this thesis assumes that authorization of stakeholders may originate through state water allocation or federal environmental and tribal rights. While the initial doctrine of prior appropriation has been critiqued for its sole recognition of consumptive beneficial uses the current political climate reinforces non traditional claimed uses. Within each case there is at least some eviden t recognition of environmental an d tribal stakeholders. The right of actors to organize is constant among all case studies due to corresponding federal 93


and state reserved or regulatory rights for each stakeholder. However while recognized som e cases may have a history of disenf ranchisement or neglect which cannot be quantified and controlled for. Some of the cases, particularly the Klamath River may have a history of such impediment to recogniti on. Even with such historical mistreatment a recognized current stakeholder would hypothe tically find it rationale and in their best interest to pursue a collective outcome. On e such example is the Snake wherein the Nez Perce Reservation explicitly pursued media tion and cooperation in lieu of a state court system they viewed as hostile. Other organizations and stakeholders have been transitory and have been formulated in times to attain political re levance for a stakeholder. Such groups can incorporate consumptive, commercial or m unicipal interests yet have most often manifested for environmental purposes. So me environmental groups or coalitions may not interact daily within each case study but nevertheless are often transitory and influential in providing support or recognition to other veri fied stakeholders Overall federal and state involvement ha ve recognized and provided substantial backing for organizational right s not explicitly within the prior appropriati on doctrine. While each of these groups have employed re cognition to organize, this in itself should not be presumed as a right of management. The core differences between case studies over management of allocations are argued as retaining the responsibility for the outcome. IAD Framework Component (8): Size, Scale an d Nested Enterprises: This final component of the IAD is co ncerning nested enterprises and in general the size and scale factors of a res ource and stakeholders. This component is incorporated under the pretense of its ability to shed light on the outcomes witnessed that 94

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were unaffected by s ize and scale of the resource. The four case studies differ substantially in size with th e Dungeness the smallest of the cases at a miniscule 32 miles long incorporating a roughly 300 square-mile watershed basi n (Born and Geskow 2006, 5; Cronin 2007, 59). However, such size differen ce does not prove relevant to outcome as the successes once again represent polar opposit e attributes. In order to accommodate for scale nested enterprises are necessary to retain managerial capaci ty in the face of a variety and plethora of actors. In comparing the size of a case to suc cess, size looks irrelevant. By the two successful case studies holding polar positions size seems to be inconsequential for success. However as Ostrom and the IAD School express, while large actor numbers may inhibit institutional development it does not actively preclude development, so long as there are adequate nested enterprises. The Snake River is by far the largest and most complex case yet has found success through nested enterprises. The Snake River is the largest river case with a basin of over 109,000 square-miles that irrigates over 3 million acres of crops and services as the water supply for over 2 million people. (Slaughter 2004, 4). While complex in terms of actor and stakeholder groups the river has benefited from an established level of success in multiple layers of institutions and enterprises. Nested enterprises are the laye ring of institutions within an established framework to deal with problem s of scale (Agrawal 2003). An example of this along the Snake River is evident in the inclusion of a major stakeholder w ithin the successful allocation institution. Along the Snake River the main agreement (institution) was developed among the stakeholder organizations the Nez Perce Tribe, Idaho Water Users Association, and the Committee of Nine. The Committee of Nine has been viewed as an 95

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entity to which repr esents the lower divis ions of individual and collective irrigation interests. Lower layers of enterprises seen within the water user districts, irrigation districts, and cities can be seen as constitution the nested enterprise of the Committee of Nine. Such nested institutions were initially developed and have continued to accommodate for problems of scale along many of the case studies. Due to the success seen in both the largest and smallest case studies size and scale is then assumed as irrelevant to institutional formation. This conclusion is reached due to the presence and availability of nested institutions to comp ensate for problems of scale within western water resources. IAD Components Regarding Rule Congr uency and Collective Choice Actions: The last two major components of the I AD framework are here jointly discussed due to their applicability to the case study empirical domain. Establishing the ability to change rules and modifying such rules for congruency to local s ituations is quite important for the successful formation of institutions. Within this thesis this serves as the locus to which the successful case studies have diverged from the conflict prone cases. Evident within two of the case studies ar e stakeholders employing collective choice actions, defined as the ability to change and modify the operational rules, The noticeable failure of other case group indica tes not only a point of divergence but also alludes to the causal factor for the dependent variable. The success of the Snake and Dungeness River case studies are exemplified due to their ability to utilize colle ctive choice action to alter the use and allocation of water. In altering use and allocation these cases ha ve found a level of success in providing for both consumptive and environmental uses. This success, as evidenced by the empirical 96

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chapter allo ws for stakeholders to modify operational rules to local conditions. The most visible such example is within the Dungene ss River management team and the decision to limit irrigation withdrawals for high envi ronmental necessity. Collectively, the Snake and Dungeness are representativ e of the success of prior appropriation in facilitating localized rule congruency and the ability fo r stakeholders to unde rgo collective choice actions. Rules of use within both watersheds were crafted to specifi cally abide by a level of extraction to preserve the resource for all stakeholders. Such information for institutional crafting was provided by th e stakeholders traditional knowledge and specialized infrastructure, such as tribal science bureaus. The Dungeness and Snake institutions have been successful in focusing then on attainin g a sustainable level of water usage for environmental and consumptive uses. However where the Snake and Dungeness ha ve succeeded in collectively agreeing to modify rules of use, the Klamath and the Yakima, have failed. The rationale for this deficiency and the stark contrast seen highlig hts the true point of divergence between the case studies. The difference between the case studies is the ability to modify operational rules through stakeholder led management, otherwise known as using collective choice processes. The difference in ability to self ma nage and alter rule stru cture is indicative of an underlying structure affecting the case outcomes. The next section will seek to attribute the deficiency in rights, within th e Yakima and the Klamath, to the presence of federally licensed hydropower dams. Federal Hydropower Dams and Their Affect on Collective Action: In the last section the an alyzing of the cases through the IAD framework led to the highlighting of a variation between institutional factors ov er stakeholders ability to 97

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m anage the resource. The ability to impos e change upon the system and alter rules of use resides within utilizi ng collective choice actions. Th e Snake and Dungeness River stakeholders are shown to possess the ability to access, withdrawal and manage the resource thus employing the abilities of a authorized claimant. The Snake and Dungeness River are found to have tangible ri ght of management wherein institutional decisions are able to affect activities throughout the basin. However, outside these cases the ability is reduced as an authorized user possesses the rights of access and withdrawal. The Klamath and Yakima st akeholders without possessing management rights are limited in scope of available actions and are unable to pursue modifying operational rules. An example of the type of ability delegate d to such stakeholders is evident within water trusts. A water trust will alter an individuals water allocation, however the relenting individual has no ability to determin e whether another rights holder also relents from diverting water. This outcome is indi cative of a stakeholde r having authority over their own individual appropriati on thus lacking any widespread applicability. With solely operational choice ability they may lease their water to a wa ter bank, but have not right to agree to alter the flow of everyone on the system. This outcome is contrasted with the Dungeness wherein individual us ers, collectively organized within the Dungeness River Management Team have an ability to enact widespread allocation changes. Members of the DRMT are thus allowed to employ collec tive choice abilities to alter the group flow, doing so on multiple occasions, to assist in e nvironmental instream flows. The following section will argue that the reason behind this pe rversion of rights between cases is due to the presence of dams, and secondly highlig ht how dam operation actively affects such 98

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rights, concluding with an explanation as to why conflict is higher in hydropower dom inated cases. The rationale put forward within this thesis, and derived with in this section, is that the federal licensure of hydropower dams are responsible for usurping necessary rights to undertake collective action over wa ter allocation. The manner in which the hydroelectric project management conflicts with, and assumes, this power is dealt with in this section. Through theoretical and empirical evidence the federal license is found to effectively retain proprietary contro l of the river. Due to this pr oprietary control stakeholders are unable to collectively organi ze under an agreement to allo cate water at a basin wide scope. The presence of hydropower dams and supreme operating rights, thereby neutralizes any attempts by stakeholders to achieve collective choice actions over river apportionment. Conflict through level shifting is found then to be necessary due to the unresponsive nature of hydropower, and federa l interests, to respond to changes in allocative demand structure. The reason behind which rights are altere d between stakeholders is due to the power that dams retain from federal licen sing. Since 1917s Federal Power Act (FPA)the federal government has taken a pervasive in terest in the governance over hydroelectric power, while the act did not or iginally intend to occupy the field as seen through the disclaimer within the FPA stating that nothing within the act should be interpreted as affecting state laws relating to the control a ppropriation use or distribution of water used in irrigation or for municipal or other uses, or any vested right acquired therein (Kelley 1996, 2). While the federal government in itially supported the primacy of state government, in practice this subordination was short lived. After the Federal Power Acts 99

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initial im plementation a host of litigation reinforced the supremacy of the federal government rights to intervene. Initial legislative intent to preserve state water law was overruled by the federal interests in hydr oelectric power. Two Supreme Court cases reinforced the supremacy of the federal government by upholding the ability for federal interest in hydropower producti on to surmount existing state water law. These two well documented cases are referred to as the F irst Iowa (1946) and California v FERC (1978) decisions. These two decisions collect ively legitimized the intrusion of federal interests in hydropower production leading to the detriment of state management (Kelley 1996, 5). In practice these cases have establis hed that federal power and water interests are unchallengeable for prior ity and furthermore no subordi nation to state action is required. Conflict manifests when federal rights to manage stream flow for hydropower clashes with the right of a consumptive or environmental stake holder. Conflicts between federal and state law can arise when the United Statesmakes use of water in a way not authorized by state law or when federal laws prevent private users from obtaining or exercising state rights (Trelease 1957, ix). Such conflict many even be amplified as dams often create an artifici al scarcity through managing flows. Such scarcity, prompted by need to retain wate r for hydropower generation, creates de facto exclusion mechanism. This exclusion a nd management can be responsible for preempting the ability of stakeholders to achie ve management ideals. Kelley states in Federal Preemption and State Water Law th at hydroelectric power generation is the only avenue of water law subject to federa l field preemption. Field preemption is defined as governments ability of unimped ed federal control which presupposes state 100

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determ ination (Kelley 1996, 5). Federal licensed dams be come proprietors of the resource through the ability to control fl ows and pre-empt state determination. Proprietorship is the authority or power vested by in an owner to exercise control over his property, especially to exclude others except on his own terms (V. Ostrom 1964, 101). The avenue to which dams actually alter rights and flows in practice is explored through the next section. How Dams Alter Rights in Practice: The last paragraph sought to correla te Federal Energy Regulatory Commission licensing of dams to an alternation of th e rights of practice of stakeholders. This paragraph will provide evidence of causation of that claim. In order to provide evidence for causation a form of counter factual will be employed rega rding the question; what if hydroelectric licensing did not overrule stakeholder management? Employing counterfactuals often can lead to more questions than answers through expanding the range of confounding variables. However su ch a problem should not exist within this arena due to the Snake River case study serving as an empirical answer to the counterfactual question. Most hydroelectric projects operate in a de-facto conflict with state law, however, the Snake River exists as a case wherein hydropower defers to state management. This allows the government to maintain the onus of power and, in the case of the Snake River, to delegate such power to stakeholders. A scenario is thus represented wherein government exercises less than exclusive power and the states have a concurrent or partial jurisd iction under the terms of speci fic or general limitations or conditions upon the authority ceded them(Tr elease 1957, 42). The counterfactual case 101

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success in the presence of hydropower dam s provides substance to the claim that operational licensure with supremacy usurps stakeholder control. Initially, the vast amount of major federal dams along the Snake River should counter the very argument stated by this thes is. The Snake River, while developed with hydropower dams similar to those of the conf lict prone cases, has in practice operated the basin under a program which retains stakeholde r management. While the conflict prone cases of the Klamath and Yakima are removed from state control, the Snake River has historically shown deference to state law. Th is deference is vital to this thesis through two specific avenues, first due to the subordination of mana gement rights, and secondly through devolution of authority to stakeholders. Snake River and the Interplay Between Dams and Stakeholders: The vast majority of the hydroelectric dams along the Snake River are managed by the Idaho Power company. In practice, this company has long subordinated their rights to those of the state pursuant to the Sw an Falls agreement. Due to this agreement the hydroelectric projects lack a control to management ove r water allocation, regardless of the scale of the project. Subordination of the Idaho Power Comp any rights have been employed in practice for decades and have institutionali zed through the 1974 Swan Falls Agreement. The Swan Falls Agreement, briefly mentione d in the case study, is a collective agreement between the Idaho Power Company, Committee of Nine, and the State engineer otherwise referred to as the director of the Idaho department of water resources (Fiege 1999, 115). This agreement effectively legalized the state (and any claimant authorized) to alter the flow in terms of necessity regardless of the dams FERC license. Such 102

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subordinatio n resulted in the empowering a nd institutionalizing of Committee of Nine rights to manage the allocation of water on behalf of the enti re basin. In a theoretical discussion the Committee of Nine is considered to have retained the management ability to change opera tional rules. In order to highli ght the difference between operation on a subordinated and pre-empted dam this section will use two differing empirical examples. In the Snake River basin, water flow downstream of the Swan Falls dam was running low and threatened with inadequate supply for irrigation as well as other demands. Utilizing the authority delegated to the state, and subsequent devolution to the Committee of Nine, allocation was altered to transfer otherwise storage water to downstream uses. In order to ensure that su ch water was not stored as excess for dam operation the allocation mandated set discharges from the dams. This operation was opposed by the Idaho Power Company yet, due to subordination, the policy was imposed nonetheless. A contrasting scenario involves dams possessing the aforementioned proprietary right of management and exclusion evidenced within the Federal licensure. Such an arrangement would be seen to result in a vastly different in stitutional arrangement. A similar attempt by the state, or collective c hoice entity, would possibly result in the dam withholding of excess water for power gene ration. FERC licensing guides the dam to withhold necessary supplies to ensure suitable power generation. However, such guidelines are often abstract and result in ov er cautious estimates, and subsequent over storage. FERC licensing is supposed to utilize best available science to provide for flow determination however evidence confirms FERCs consistent willingness to favor maximizing hydroelectric revenues at the ex pense of fish and wildlife protection (Blumm 1991, 3). In times of drought any ups tream attempt to limit usage would most likely be undermined by water being withheld to benefit dam storage. Without the subordination of rights to states two avenues are offered to re coup stakeholder interests. 103

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The first is for intra-stakeholder competi tion, evidenced through se niority allocations. The second avenue, that of conflict, is to pursue litig ation to m odify water allocation between stakeholder uses or between hydropower retention. The legal case California v. FERC is a scenario in which a hydropower interest maintains its power against the objections of th e state. This lawsuit was prompted due to the attempt to alter in-stream flows. When the state decided flow levels were inadequate and agreed to raise levels dams operation balked asserting the right to maintain lower flows. The state of California tried to enforce a revision to the FERC license and operating procedure concordant with state law however the legal claim was deemed invalid and federal dam license would held in supremacy (Blumm 1991, 4). These two examples highlight how stat e action or subsequent collective action may affect operational rules when the state ma intains right of ownership. However such ability is often precluded in the face of hydropower proprieta ry interest. In comparing these two scenarios differentiation is seen within the dependent variable between the roles of the Snake River dams and the other hydropower pres ent case studies. It should be noted however, that the Swan Falls Agreement does not account for the entirety of hydropower dams along the rive r. In practice there are only two other types of dams along the river, one of which is a devolved Bureau project, and the other type is run-of-the-river dams. The Bureau of Reclamations Minidoka proj ect is found to not affect the rights to stakeholders due to a similar devolved author ity and management as that of the Idaho Power Company. The Minidoka project, operat ing several dams, was transferred in 1997 to a local stakeholder group, the Burley ir rigation district, for operation (Cody 2002, 10). In devolving the projects management to local stakeholders the primacy of the hydropower rights were again rendered similar to th at of the Committee of Nines rights. 104

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The other operation of hydroelectric dam s is through run of the river dams. This means that the dam does not actively store, manage, or impede water for hydroelectric purpose but rather allows a natural stream flow to generate electricity. The primary purpose of these dams is to facilitate navigation and, in general, no actual impediment of water exists to alter the rights schematic. These dams are thus without the ability to retain water and lack then management of the river through flow augmentation. Thus, without this ability the dams in no way can exclude downstream right holders in the same form that normal dams in the Klamath or Yakima River basin can. The presence of these dams thus becomes irrelevant to the thesis di scussions over impoundment dams and their alteration of property rights. How Alteration Affects Conflict Levels: The perversion of rights that accompany federal pre-emption in hydropower dams instigates conflict due to the inability for st akeholders to achieve an end result in any means other than litigation. Vincent Ostrom, a noted academic, who focused on institutions and water governance explained th at there are dangers in allocating select proprietary rights within a commons resource. He argued th at placing a decision in the hands of a single person may substantially reduce decision making costs, say compared to a simple majority rule, however, it opens the door to high deprivation costs. That is, the single decision maker could read ily trample on the rights of citizens(V. Ostrom 1964). However, such an outcome is not inevita ble, rather under substantial oversight, a proprietors management can be equitable. While dams are licensed and operated under FERC criteria other federal enti ties such as the Bureau of Reclamation, Department of Interior and National Oceanic a nd Atmospheric administration serve as de facto monitors. 105

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In a system where stakehol ders get continuously tramp led stakeholders have no alternatives but to seek to a ddress their concerns through cour t. Often times the concerns are aimed at initiating monitoring agencies oversight of the license. Most commonly environmental stakeholders will seek litig ation to enforce dams to contribute to environmental flows, or to counter a c onsumptive use habit. Stakeholders, both consumptive and environmental, are then of ten forced into a quicksand of litigation decisions which this thesis constitutes as representing conflict. Thus, every move to satisfy stakeholder allocations is contentious due to the potential detriment of another stakeholder group. This inefficient govern ance system generated through FERC license relies upon litigation enforcement over alloca tion, inevitably leading to conflict and water wars over stakeholde r allocation of resources. 106

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Conclusion: This thesis correlated and attributed the dependent variable, th at being conflict or cooperation, to the presence a nd role of dams along the rive r corridors. Federal licensing of dams along a river were found to undermine the ability of states to devolve authority to stakeholders which led to the inhibiting of such actors to undertake collective choice action. In undermining this ability through retaining proprie tary authority dams actively employ de facto, and de jure, exclusionary righ ts over the river waters hed. This affect may be as simple as altering percentage of flow, to a more contentious, revocation of entire water rights. Federal dams through acting as proprietors over the river even retain the ability to make a seniority call against state water ri ght holders, further compounding the powers vested within licensure. This thesis has sought to analyze four distinct rivers, their history, and the current status in order to correlate the role of dams to impeding institutional development and subs equently exacerbating inter-stakeholder conflict. By polarizing attributes and selecting cases to compensate for variables the divergence of case outcomes can be argued und er stakeholders abil ity to manage the operational rules over water allocation. Wh ile public opinion and academic literature may often attribute detrimental water allocati on to the property right regime this thesis counters that stance through documenting successful management institutions. Through utilizing the successful Snake and Dungeness River cases an attempt was made to demonstrate how the underlying property right s doctrine of prior appropriation does not preclude cooperation among interest as is often claimed in literature. This thesis, furthermore, highlights the ability of stakeh olders to enter into such institutions to 107

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efficiently m anage water allocation among inte rest, however, the long term prospect for these agreements were not able to be addressed. Limits of Research and Prosp ects f or Future Investigation: In analyzing four case studies the attempt was made to minimize variables that can affect the levels of part icipation in collective action in stitutions. While isolating and compensating for all variables is difficult this thesis has attempted to compensate for many through intentionally selected cases. Such an avenue inextricably can lead to case selection bias, however the ability to mitigate variables surmounted the necessity to avoid case bias. The conclusion of this thesis does not assume preclusion of all exogenous variables but rather embraces the limitations of a qualitative study and offers suggestions for further research improvements. By assuming case studies within the Pacifi c Northwest this thesis also sought to limit variables associated with geographica l differences. Yet in limiting geographic distribution, the broad applicati on of conclusions is likewise limited. However, the basic conclusion of the dangers of federal imposed hydropower rights should serve as warning against water impediments that surmount stat e law through federal pre-emption. Within the inclusive case studies there is necessity and viability of such research due to a renaissance in water infrastr ucture development. The Klamath may be on the road to institutional recovery and c ooperative management over alloca tions due to attempts to subordinate hydropower rights and decommission dams. However, where the Klamath may gain the Yakima may falter. Washingt on State and federal in terests are currently exploring options for developing a larger hydroelectric dam to increase water supplies. While this thesis should remain apolitical, this proposal is met with skepticism due to the 108

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claim of this thesis. If this plan is enacted and this thesis holds true the prospects for a conflict and litigation free, stakeholder collec tive institutionally managed resource would remain dim within the Yakima case study. The results of this thesis also have a pplicability not only within the Northwest but throughout the commons literature highlighting the detrimental natu re of proprietary interests in the face of st akeholder organization. This argument and conclusion would apply to any legal arrangement wherein a prop rietary interest wrests management from a politically potent and decisi ve set of stakeholders. The four case studies within this thesis were differentiated trough their ability to alter operational rules and retain the right of management over the resource. This was the focal point of this thesis and was integral to the understand ing of the way in which dams impeded actions. FERC licensure has allotted proprietary rights to hydropower dams and has had the end result of trampling on the st akeholders as Vincent Ostrom predicts in Proprietary politics. A stak eholders expected response action is to address their concerns through any means available. W ithin this thesis the entity to which stakeholders responded too was federal agen cies due to their proposed check and balance over the proprietary interest (V. Ostrom 1953). However, the manner in which stakeholders are forced to influence alloca tion decisions is decidedly confrontational through litigation. The forced confrontationa l aspect between stakeholders for control over overall resource allocations are the reason de etre to which the West has continued to witness the explosi on of water wars. This thesis through analysis of four case studies has brought evidence th at water isnt always for fi ghtin about. Rather, it is under certain conditions that fact ors arise, which force the mani festation of conflict. 109

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W atershed Attribute Comparison: Resource Attribute: Case: Snake River Yakima River Klamath River Dungeness River Size and Scale of Resource: Largest Medium Small Very Small Number of Actors: Very high Medium Small Very Small Heterogeneity of Actors: High Heterogeneity : Commercial and Individual Irrigation; Municipal Use; Multiple Tribes Multiple Environmental Group Present; External Actors *Including Hydropower Medium heterogeneity : Multiple Tribes Predominantly Individual Irrigators; Low Municipal Low Commercial Low Heterogeneity: Primarily Individual irrigators Multiple Tribal interests Environmental Group Presence Very Low Heterogeneity : Single Tribe Actor Individual Irrigators Landowners Environmental Int. Interaction between Actors High Interaction: High amount of interaction between actors; However prior to Agreement was largely contentious and distrustful Repetitive Interaction : Repetitive Interaction between groups: However recently has been marred with distrust Low Interaction Minimal Historic Interaction However recent interaction has increased with conflict Minimal Interaction: Primarily minimal previous interaction; Since 1990 agreement has been marked with high interaction 110

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Lindsay, Stephanie. Counting every Drop, Ma naging Surface and Groundwater in the West Environmental Law Volume 37. (2009) pg 193-214. Livingston, Marie and Thomas Miller. A Framework for Analyzing the Impact of Western In-stream Water Rights on Choice Domains: Transferability, Externalities, and Consumptive Use. Journal of Land Economics Volume 62. Number 3 August 1986, pg. 269-277. Lopez-Gunn E. the Role of Collective Acti on in Water Governance: A Comparative Study of Groundwater user Associations in La Mancha Aquifers in Spain. International Water Resources Association, Water International Volume 28, Number 3 Pages 367-378. (September 2003). Lubell, Mark. Cooperation and Institutional Innovatio n: The Case of Watershed Partnerships Ph.D. dissertation, State Univer sity of New York at Stony Brook. 1999. MacDonnell, Lawrence. Return to the River: Environmental Flow Policy in the United States and Canada. Jounral of American Water Resources Association. Volume 45. Number 5. (2009) pg. 1087-1099. McCool, Daniel. The River Commons: A New Era in United States Water Policy. Texas Law Review Volume 83. (2005) pg.1903-1927. McGinnis, Michael D., ed. Polycentricity and Local Public Economies: Readings from the Workshop in Political Theory and Policy Analysis. Ann Arbor, MI: University of Michigan Press. 1999. McGinnis, Michael. An Introduction to the IAD Framework and the Language of the Ostrom Workshop: A Simple Guide to a Complex Framework. Wiley Periodicals Publishing Malden, Massachusetts 2011. McKinney, Mathew and Will Harmon. Resolving Natural Resource Disputes: A Historical, Analytical, and Prescriptive Framework. Renewable Resources Journal. ( Summer 2005). McLeod, Bruce. Rules and Rhetoric. Osgoode Hall Law Journal Volume 23 Issue 305, (1985). Meinzen-Dick, Ruth. Local Organization for Natural Resource management: Lessons from Theoretical and Empirical Literatu re. International Food Policy Research Institute. Paper 11. (1995). Merenlender, A.M. Land Trusts and Conserva tion Easements, Who is conserving what for Whom? Conservation Biology Volume 18, Number 1 (Feb.) 2004. pg. 65-75. 115

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