Settling Native American Water Rights in the American West: An Interview with Joe Ely
Joe Ely, now a project coordinator for Stetson Engineers, Inc., was a young man in his 20s when he took on a problem everyone told him could not be solved, even the Supreme Court. As the chairman of the Pyramid Lake Paiute Tribe, he found a way. The court had ruled that the tribe had no valid claim of a water right to support Pyramid Lake, which was being steadily dried up by upstream reservoirs and diversions to farms and growing subdivisions.
But the tribe got a second chance. When Stampede Reservoir began to fill up behind a new federal reservoir in the Sierra Nevada, the tribe sued again, claiming the federal government had an obligation to protect the cui-ui, an endangered species that only lives in Pyramid Lake. This time they won, forcing the federal and state governments, the upstream cities of Reno and Sparks, and farmers in the Truckee-Carson Irrigation District to a negotiating table convened by Sen. Harry Reid in 1987.
Lessons from Pyramid Lake
Graham Chisholm: What were the lessons you learned during the negotiated settlement?
Joe Ely: That process was a sharp learning curve. And I had some good mentors. I was a green wet-behind-the-ears kid doing that stuff and learning it as I went along.
One of the very first things I learned was that you don't have to lose. Even if you go to the Supreme Court and they tell you you're done, you've lost, you haven't lost. There's always a different route to the same place. You can still find a way to achieve your goals. But you can't achieve those goals without leadership. After the settlement, I spoke at a number of conferences. One of the things that I continued to say was leadership, leadership, leadership, leadership, not only on the tribal level leadership, but in the overall process.
There was never a doubt at Pyramid Lake that we were going to get it done. We stated to everyone that until we have water for our fish, we're not going to stop. As long as there's one of us left breathing, we're going to fight this fight until we win. And then we had Senator Harry Reid come in. He didn't have a reverse. He never had a doubt that we were going to get this done.
The second thing I learned was that we're writing the law. Do you know how hard a concept that is for people to grasp? That gives you the ability to have the creativity that you need to solve problems that were really created over a century ago with the mindset of a century ago. And, yes, to the extent that we can stay within the confines of existing laws, so we don't completely topple the apple cart, we'll try to do that. But if a few apples fall off, we'll pick them up. We'll put them back on the cart.
The third lesson is that we had to do something different. And when you do something different, it requires you to know the other side. This is really important and something I've carried with me the entire time. It takes a settlement from numbers, priority dates, and the law, to people. People have needs, people have demands, people have ways of life. They have lifestyles. You need to understand what those are. And we had to find a way for them to recognize that our way of life was just as important to us as theirs was to them. It forced people to get to know each other.
Settling Water Wars Around the West
Jon Christensen: How did you come to spend the rest of your life working on water settlements for Native American tribes?
Joe Ely: The settlement at Pyramid Lake was ratified less than a month before I had to leave office. I had term limits. I was going to leave the chairmanship. And I needed to go find work.
Other Water Wars
At that time, Stetson Engineers was the leading engineering firm working on behalf of tribes in Indian Country. They used to work for me as chairman. And they asked me if I wanted to continue to do what I did for other tribes. I went to work for them. It worked for me because I got to stay in the work that I liked to do and that I'd been doing for quite some time.
Graham Chisholm: What was the next settlement you worked on and how many settlements in all have you played a role in?
Joe Ely: After Pyramid Lake, Duck Valley was the next one that we completed. It was different from Pyramid Lake, where farmers diverted water from the Truckee River to another river basin before it could get to Pyramid Lake.
At Duck Valley, all of the water users were above the reservation. They were on small creeks and streams that the water came down very fast for a short period of time. They just moved the water on to their fields to irrigate. The water went back into the creeks, then into a reservoir, and down to other users, but all of it eventually got down to the reservation.
The non-Indian farmers upstream didn't want to change. They wanted to keep things exactly the way it was. So, we said, okay. We're fine with it because we knew the water would eventually get to the reservation. So that's what made that settlement work there.
That came from lessons we got from Pyramid Lake. It was being able to be creative that made it work, being unshackled by the way things are supposed to be done, and instead do it in a manner that benefits everybody, without a fight.
As we worked it all out, though, we still had to get it through Congress. And you know, who got it through Congress for us? Senator Reid.
I sat down this morning and itemized settlements I’ve been involved in, many as a major player. I count a total of 11 settlements so far, with eight different tribes: the Pyramid Lake Paiute Tribe, Shoshone-Paiute Tribe of Duck Valley, Round Valley Indian Tribes, Ute Tribe of the Uintah-Ouray Reservation, Coeur d’Alene Tribe, Zuni Pueblo, Confederated Tribes of the Umatilla Indian Reservation, and the Osage Nation.
Working with Diverse Tribes
"I don't work for a river. I don't work for a lake. I don't work for a fish. And I don't work for a bale of alfalfa. I work for the tribe and I want to know who it is that I work for. I want to know who they are, because it is their water. It is their life that we're trying to improve through this process."
Jon Christensen: How are the tribes different in their approaches to these settlements?
Joe Ely: When I get a new client, I go out and meet with the tribal council, the water boards, the department of natural resources, whoever I need to meet with. But I always get there a day or two in advance. I get in the car and I drive through where the tribal members live. I want to see how they're living, what they're doing with their lives. It gives me an indication of what is going on. I stop at the stores that are owned by the tribe. I walk in and buy lunch.
I try to interact with the tribe itself before I get to the tribal leadership and get a good idea of what is this tribe made of? Who are they? I go on their websites. I read about their history. I read about who they are, because I don't work for a river. I don't work for a lake. I don't work for a fish. And I don't work for a bale of alfalfa. I work for the tribe and I want to know who it is that I work for. I want to know who they are, because it is their water. It is their life that we're trying to improve through this process.
On the Importance of Leverage
Graham Chisholm: At Pyramid Lake, you had leverage with the Endangered Species Act and the Supreme Court’s decision that Stampede Reservoir had to be used to protect the cui-ui. How important is that kind of leverage in negotiating a settlement?
Joe Ely: Without leverage, you're not going to have a settlement. If a man can take it, he'll take it. It's just the way it is. I like the idea of being able to sit down and work it out to benefit of the whole. But I don't want anyone to put any kind of halo or mantle of any sort on me, because if we could take it, we take it. And everybody does.
I’ve talked with tribes for years. And I always say, “use your water, use your water.” Because now you're going to affect other users. And you can now have the ability to go to the table with some leverage. All of a sudden people who may not have wanted to talk to you sit down and talk with you. The sooner you can get to that point of actually sitting down with each other and having to work this out, the better off you are.
Look, it's terribly expensive to stay in litigation for decades. And it's also very hard to plan in some areas, when you're a farmer or an irrigation district and you have a looming cloud of an endangered species living in the river that you take your water from. They have incentive to negotiate. Pyramid Lake was one of those instances where people in the West saw exactly what the Endangered Species Act can do.
On Conflict
Jon Christensen: Why do we so often hear stories of conflict in the American West and so seldom stories of negotiation, compromise, and cooperation?
Joe Ely: Because there is conflict. There are people competing for the same resource. And in some instances, it's not solvable. It's very difficult. Somebody is going to have to give up more than what they want to give up to make it work.
Unfortunately, water management in the West has been pretty poor for the last century. People were allocating water and giving out water rights and over appropriating streams and building far beyond the amount of water that existed to sustain it.
And in many instances, tribes have come along in the last half-century and asserted their water rights. And as they have, they have moved into areas where streams and rivers, watersheds are already over-appropriated. And now a new group of users who were ignored when they shouldn't have been ignored are quantifying their water rights. And they're starting to use that water.
So that means that somebody has to give. Remember we didn't reach a settlement with the Truckee-Carson Irrigation District, because they weren't willing to give. And so, we went to court and we took it from them.
Changing of the Guard
Graham Chisholm: Have you seen a changing of the guard around water in the West?
Joe Ely: I do see as the old guard leaves, the newer ones that are coming in, not only are they coming in with a different perspective, but they're also coming in with a whole different set of problems and the magnitude of problems that have to be addressed. There's a whole lot more people and a whole lot more demand than there used to be. And so that's forcing more and more people to be more susceptible to trying to sit down and solve things.
They're not ingrained with some of the steadfastness that they used to have as far as, “this is ours, we developed it, we're seventh generation farmers” kind of thing. They're more “how can we work this out?”
Most of us who do this work are getting old. There are a few that are younger, that are coming up, but not as many as there should be. Also, we're settling these issues and each time you settle them, you have one less to settle. So, the goal is hopefully to work ourselves out of work before we all die off.
Water rights settlements are difficult. A tough part of this is that settlements seem to take a long time, 15 years on average start to finish, and that doesn't include implementation.
The Legacy of Pyramid Lake
Jon Christensen: What is the legacy of the negotiated settlement?
Joe Ely: Pyramid Lake is still pretty famous for being one of the longest and ugliest battles out there. But people don't remember it the way they did 15 years ago. I am disappointed about how many people in the area, who lived through it being in the newspaper and on television every day, now sort of take it for granted. I sometimes try to remind them, as I look out around Reno and Sparks and say, “All that development you see out here, all of this growth, all of this prosperity would not exist if it wasn't for the settlement. Because you got stopped in your tracks. When the tribe won Stampede Reservoir in the Supreme court, the ability to grow just stopped. The settlement is what made it work. And so we are able to now allow Stampede Reservoir to be used for a drought water supply in Reno and Sparks. You're able to grow in trade for water and timing of flows that we would get for Pyramid Lake. And the result is all of this.”
And I talk to fishermen at Pyramid Like. They say, “I just can't believe it. The fish that we're catching are huge. And it is amazing to us what's out there.” And I’ll say, “That's the Pyramid Lake settlement.” And, people just go, “Oh, I didn't know that.”
Counting Blessings
Graham Chisholm: Any last thoughts you’d like to leave us with?
Joe Ely: I’ll tell you what. The Lord has blessed me. I've been hanging around rivers all my life, as a kid swimming in rivers and fishing in rivers. And of course, working with tribes for as long. I've been very fortunate to be able to do this all my life. Indian water right settlements are very difficult to achieve and are very time consuming. I have been blessed to see a number of them to completion with lasting effects. I'm very blessed in that the Lord Jesus has empowered these processes and had his hand in them, showing me where he's had his hand in them, too, to see these things through.
Top image: Pyramid Lake | Still from "The New West and the Politics of the Environment," an "Earth Focus" special.