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NEGOTIATING INDIAN WATER RIGHT SETTLEMENTS

NEGOTIATING INDIAN WATER RIGHT SETTLEMENTS . Identifying Parties and Issues and How Negotiations Bind (and Benefit) Larger Groups . Essential Elements of a Successful Settlement . Patience Flexibility Creativity Carrots and Sticks. PATIENCE.

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NEGOTIATING INDIAN WATER RIGHT SETTLEMENTS

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  1. NEGOTIATING INDIAN WATER RIGHT SETTLEMENTS Identifying Parties and Issues and How Negotiations Bind (and Benefit) Larger Groups

  2. Essential Elements of a Successful Settlement • Patience • Flexibility • Creativity • Carrots and Sticks

  3. PATIENCE • Successful settlements require years of effort: • Identifying and engaging parties • Identifying and quantifying water supplies • Negotiating terms • Securing funding and Congressional approval

  4. GILA RIVER INDIAN COMMUNITY SETTLEMENT • 35 signatory parties. • Main settlement agreement – 285 pages of text. • 85+ exhibits – totaling 1,700 additional pages.

  5. FLEXIBILITY • Sources and quantities of water subject to negotiation. • Willingness to “grandfather” existing non-Indian water uses. • Willingness to waive claims for past water uses and damages.

  6. Example:GILA RIVER INDIAN COMMUNITY SETTLEMENT • Community Water Budget – 653,500 AFY • 328,800 AFY CAP Water • 156,700 AFY Groundwater • 155,400 AFY Surface Water • 12,600 AFY Effluent

  7. CREATIVITY • Consider creative concepts – e.g., water exchanges. • Gila River Settlement includes exchanges of Community’s CAP water for treated effluent. • Consider creative funding sources. • Gila River Settlement taps existing Lower Colorado River Basin Development Fund. • Don’t overlook small but significant contributions.

  8. CARROTS AND STICKS • Carrots can take many forms: • Waivers of claims. • Grandfathering existing uses. • Side agreements with specific parties. • In Gila River settlement – resolution of CAP funding and water allocation issues.

  9. WAIVERS OF CLAIMS IN GILA SETTLEMENT • Mutual waivers by Community, U.S. and State Parties. • Waive or limit past, present and future claims relating to water rights, water quality and land subsidence.

  10. CARROTS AND STICKS (cont.) • Sticks come primarily in the form of a demonstrated willingness to litigate claims. • Gila River Indian Community has been very active in the Gila River Adjudication and Globe Equity proceedings. • Expense and risks of litigation are powerful motivators.

  11. BINDING LARGER GROUPS • Arizona model – Special Procedural Order for Approval of Federal Water Rights Settlements. • Establishes a process for Adjudication Court approval of settlements and for non-signatory parties to file objections. • Procedural order has been used for approval of four settlements in the Gila River Adjudication.

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