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UIdaho Law Digital Commons @ UIdaho Law Articles Faculty Works 2003 Farmers, Fish, Tribal Power and Poker: Reallocating Water in the Truckee River Basin, Nevada and California Barbara Cosens University of Idaho College of Law, [email protected] Follow this and additional works at: https://digitalcommons.law.uidaho.edu/faculty_scholarship Part of the Agriculture Law Commons, Indian and Aboriginal Law Commons, and the Water Law Commons Recommended Citation 14 Hastings W.-Nw. J. Envt'l L. & Pol'y 89 (2003) This Article is brought to you for free and open access by the Faculty Works at Digital Commons @ UIdaho Law. It has been accepted for inclusion in Articles by an authorized administrator of Digital Commons @ UIdaho Law. For more information, please contact [email protected]. The law governing allocation of water in the western United States has changed little in over 100 years.1 Over this period, however, both our population and our understanding of the natural systems served by rivers have mushroomed. 2 To meet growing urban needs and to reverse the environmental cost extracted from natural systems, contemporary water pol- icy globally and in the West increasingly Farmers, Fish, Tribal Power focuses less on water development and and Poker: Reallocating more on improvements in management, Water in the Truckee understanding. 3 River Basin, Nevada and efficiency, and scientific California These efforts are frequently at odds with & Associate Professor, University of Idaho, By BarbaraA. Cosenss College of the Law, Former Assistant Professor, Environmental Studies Program, San Francisco State University. Mediator for the Walker River dispute. Former legal counsel, Montana Reserved Water rights Compact Commission. Lead counsel on negotiations to settle the reserved water rights of the Fort Belknap Reservation, the Chippewa Cree of the Rocky Boy's Reservation, the National Park Service, and the U.S. Fish and Wildlife Service, in Montana. LL.M. Northwestern School of Law, Lewis and Clark College, J.D. University of California, Hastings College of the Law, M.S. Geology, University of Washington, B.S. Geology, University of California, Davis. The author would like to acknowledge Professors Janet Neuman, Michael Blumm, and Janice Weis of Northwestern School of Law at Lewis and Clark College, and Professor Brian Gray of the University of California, Hastings College of the Law for their review and comments. The author would also like to thanks the participants of the Milk River and Truckee River negotiations for their willingness to discuss negotiations. 1. See, e.g., CHARLES F. WILKINSON, CROSSING THE NEXT MERIDIAN: LAND, WATER, AND THE FUTURE OF THE WEST 25 (Island Press 1992) (referring to prior appro- priation, the doctrine governing water allocation in most western states, as a "lord of yesterday"). 2. Charles F. Wilkinson, Western Water Law in Transition, 56 U. COLO. L. REV. 317, 321-322 (1985). 3. Peter H. Gleick, The Changing Water Paradigm, in THE WORLD'S WATER 1998-1999, THE BIENNIA REPORT ON FRESHWATER RESOURCES 9 (Island Press 1999). Barbara A.Cosens Volume 10, Number I Barbara A.Cosens Volume 10, Number 1 the rigid law governing water allocation, inefficiencies, caused by adherence to the forcing water policymakers and managers doctrine of prior appropriation and by to find alternative routes that introduce conflicting management by multiple juris- sufficient flexibility into water manage- dictions, led people to negotiate a basin- ment to address changing needs and val- wide approach to water distribution and ues. 4 Negotiation is playing an increas- management. Part I concluded that two of ingly important role in the effort to solve the measures agreed to in the Milk River modern problems. Basin-wide collabora- negotiations-the establishment of an tive processes aimed at resolving alloca- intergovernmental committee to coordi- tion, restoration, water quality, and juris- nate the management of water across dictional disputes, occur on almost every jurisdictional boundaries and the devel- major water basin in the West. The cur- opment of a program to bank water for rent ad hoc approach has produced a vari- redistribution during drought, which are a ety of processes and provided a fertile major step towards introducing basin- ground for testing concepts in water law.5 wide governance and flexibility in water The use of negotiation to solve problems management. In addition, the Milk River inadequately addressed by existing law negotiations reversed the inequity created may herald a new era for water distribu- by federal emphasis on water develop- tion and management in the West-one ment around an Indian reservation at the tailored to the problems faced by specific expense of tribal water rights. water basins and structured around gover- This article, Part I1,moves west to the nance that mimics basin boundaries. Great Basin, where the threat of water Part I of this three-part series reallocation to meet the needs of endan- explored one such effort on the Milk River gered species and the growing urban Basin in Montana.6 There, the threat of needs in the Truckee River Basin of development of senior tribal water rights California and Nevada is giving rise to a and frustration over water distribution negotiated plan governing operation of 4. See, e.g., LAWRENCE I. MACDONNELL, FROM ties all have a nexus in water."; Janet C. Neuman, RECLAMATION TO SUSTAINABILITY: WATER, AGRICULTURE, Adaptive Management: How Water Law Needs to Change, AND THE ENVIRONMENT IN THE AMERICAN WEST 232 (U. 31 ENVTL. L. REP. 11432 (Dec. 2001) (discussing the Press of Colo. 1999) (discussing the problem cre- need to introduce flexible "adaptive" management ated by a rigid legal system that has not kept pace into the prior appropriation system). with change in water-use preferences); Joseph W. 5. See, e.g., David H. Getches, The Metamorphosis Dellapenna, The Importance of Getting Names Right: The of Western Water Policy: Have Federal Laws and Local Myth of Markets for Water , 25 WM. & MARY ENVTL. L. Decisions Eclipsed the States' Role?, 20 STAN. ENVTL. L.J. AND PoL'Y REV. 317 (2000) (discussing the growing 3, 5-6 (2001). "These Ilocally-drivenI approaches need to reallocate water from agricultural to urban ...can serve as laboratories for incubating pro- and environmental uses); David H. Getches, From posals for systematic change at the state level."; see Askhabad, to Wellton-Mohawk, to Los Angeles: The also A. Dan Tarlock, Reconnecting Property Rights to Drought in Water Policy, 64 U. COLO. L. REV. 523 Watersheds, 25 WM. & MARY ENVTL. L. AND PoL'Y REV. (1993). "The goals of water policy tend to be con- 69, 75 (2000) (noting that "jwjatershed manage- fined to respecting existing rights and rewarding ment is once again in vogue but in a more decen- development. Western states are lately realizing tralized, ad hoc, stakeholder-driven form than pre- that economic stability, human health, ecological vious hydrologic governance efforts."). balance, and survival of urban and rural communi- Fall 2003 Reallocating Truckee River Basin Water storage on the heavily developed river. By its terminus in Pyramid Lake in the desert introducing flexible management to exist- of Nevada. Along the way, it serves kayak- ing infrastructure, the Truckee River nego- ers, fishermen, hydropower stations, tiations are overcoming substantial barri- municipal needs, and a major diversion to ers to reallocation of water. the Carson River Basin for a federal irriga- tion project. To balance the cycles of Part III analyzes the processes used flood and drought typical of rivers fed pri- in achieving the Milk and Truckee River marily by snowmelt, the Truckee River is settlements and concludes that while liti- regulated by five major federal reservoirs gation or its threat may be necessary to and several private reservoirs. force consideration of noneconomic inter- ests such as aquatic habitat, negotiation The terminus of the Truckee River, offers the best means to improve water Pyramid Lake, is located within the governance and allocation in the West. 7 Pyramid Lake Paiute Indian Reservation. Part III identifies key process elements When viewed by John C. Fremont in 1844, necessary to an efficient, fair, and durable the lake and the mouth of the river were settlement. It also recommends changes teeming with Pyramid Lake cutthroat to the current federal team process for trout (a subspecies of the LCT) and a participation in water negotiations to pro- sucker known as the cui-ui. 8 Diverting the vide accountability to national interests. river to satisfy the irrigation project result- Finally, Part III recommends congression- ed in the lowering of lake levels, blocking al criteria for approval of water settle- passage of fish to spawning grounds. 9 ments that promote fair allocation of the The Pyramid Lake cutthroat trout disap- benefits of the water resource, movement peared entirely from the lake in the late toward sustainable use of the resource, 1930s or early 1940s, though a similar and use of federal subsidies only to these strain of Lahontan cutthroat trout("LCT") ends. was subsequently introduced. 10 The Truckee River takes its water sup- Years of litigation attempting to real- ply from the snowpack of the Sierra locate water to Pyramid Lake ultimately Nevada Mountains in California and has upheld the dominance of appropriative 6. Barbara A. Cosens, A New Approach in Water available at http://water.nv.gov/water%20planning Management or Business as Usual? The Milk River, /truckee/truckeel.htm (last visited April 14, 2004). Montana, 18 1. ENVT'L L. & LIT. 1, 2003. 10. Truckee River Chronology Part I, supra note 7. Barbara A. Cosens, Water Dispute Resolutionin 7, at 11; TRUCKEE RIVER ATLAS, supra note 6, at 27; teh West: Process Elements for the Modern Era in Basin- United States Department of the Interior, Bureau wide Problem Solving, 33 Env. L. 949, 2003. of Reclamation, Fish and Wildlife Service, State of 8.

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