42 Idaho L. Rev. 717 (2005-2006)
Truth or Consequences: Settling Water Disputes in the Face of Uncertainty

handle is hein.journals/idlr42 and id is 727 raw text is: TRUTH OR CONSEQUENCES: SETTLING
WATER DISPUTES IN THE FACE OF
UNCERTAINTY
BARBARA COSENS*
TABLE OF CONTENTS
I.  INTRODU    CTION   ................ ........................................................... 717
II. THE NEZ PERCE OFF-RESERVATION CLAIMS AND
LEGAL UNCERTAINTY ............................................................ 720
III. THE NEZ PERCE SETTLEMENT AND SCIENTIFIC
UN  CERTAIN    TY  .......................................................................... 737
A. Instream Flow Program           ................................... 738
B. Habitat Management and Restoration Initiative ................ 747
IV. ALTERNATIVE APPROACHES TO ADDRESS
SCIENTIFIC UNCERTAINTY IN ACHIEVING WATER
SETTLEM     EN TS  .......................................................................... 754
V.  CON  CLU  SION     ............................................................................... 762
Nature's uncertainty ripples through the water rights system .... '
I. INTRODUCTION
Negotiations to resolve intergovernmental natural resource is-
sues, like those concerning the water rights of the Nez Perce Tribe,
occur in the face of both legal and scientific uncertainty. Legal uncer-
tainty is necessary because it is the potential risk of a litigation loss
that gives parties the political will to settle. As such, legal uncer-
tainty is the room within which parties negotiate. It must be large
*   Associate Professor, University of Idaho, College of Law. Former Assistant
Professor, Environmental Studies Program, San Francisco State University. Mediator for
the Walker River dispute. Former legal counsel, Montana Reserved Water Rights Com-
pact 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 Na-
tional Park Service, and the U.S. Fish and Wildlife Service, in Montana. L.L.M. North-
western 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 thank the many people who responded pa-
tiently to her endless questions concerning the Nez Perce settlement including Hedi
Gudgell, Jean Baldrige, Steve Moore, Clive Strong, Cindy Robertson, David Shaw, Pat
Seymour and Tiny Furman.
1. David H. Getches, Forward to BONNIE G. CoLBY ET AL., NEGOTIATING TRIBAL
WATER RIGHTS: FULFIlLING PROMISES IN THE ARID WEsT, at xdii (2005).

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