Tribal water rights and instream flows for species listed under the Endangered Species Act (ESA) have been a source of tensions in the western United States, particularly when tribes have undetermined water rights to support tribal fisheries listed under the ESA. Understanding the mechanics of past tribal settlements and their strengths and weaknesses in resolving disputes over instream flows for tribal trust fisheries listed under the ESA will allow parties involved in negotiations to evaluate whether similar provisions should be incorporated into future settlements. A review of the 27 congressionally approved tribal water settlements for instream flow and ESA provisions revealed that instream rights were either established as junior rights or reallocated from existing rights. The ESA was a factor in many of the settlements; however, only one actively incorporated ESA tools as part of the benefits of the settlement. After this preliminary evaluation, a comparative analysis framework with 28 criteria for evaluating environmental conflict resolution was applied to the Nez Perce Water Rights Settlement and Pyramid Lake Paiute Water Rights Settlement to identify strengths and weaknesses of using tribal water settlements as a means to resolve disputes involving instream flow claims. From my analysis, I conclude that tribal water settlements offer unique opportunities to shift the status quo and address historic inequities while minimizing harm to existing water users; however, settlement agreements may not result in an outcome that reduces conflict without a concerted effort to establish a fair process and minimize the impacts of the agreement on other parties. Furthermore, despite the many benefits of settlement agreements, since they have not delivered time-immemorial rights for fisheries, other options will likely be a continued consideration for tribes seeking to restore fisheries. However, while litigation presents a risky though lucrative outcome, rights under state law are in line with what has been granted in settlements. Given the time, effort and cost associated with settlements, I suggest that since tribal water right settlements generally use state tools to establish instream flows, states and tribes may reduce future conflict by proactively working together to establish instream flows through existing state water reallocation mechanisms. / Graduation date: 2012

This study addresses the question: "What are the incentives and disincentives for conflict prevention and mitigation in the Bureau of Reclamation (Reclamation), and how do they factor into Reclamation's management of water in the western United States?" Incentives and disincentives for conflict prevention (i.e., actions taken to avoid conflict) and mitigation (i.e., actions taken to resolve, manage, or temper a conflictive situation after conflict has occurred) are identified through a survey and focus groups of Reclamation employees. The two dominant disincentives identified are a lack of resources and Reclamation's organizational culture--specifically its reliance on crisis management, water delivery tunnel vision, and being slow to change. Other disincentives include a lack of forward planning, the existence of an acceptable bandwidth or level of conflict, a perception that conflict is unavoidable or entrenched, politics, and limits on acceptable actions associated with the legal authorization of Reclamation projects. Fewer incentives for conflict prevention and mitigation were identified, but include, pressure from higher management, the promotion of collaboration within the Bureau, and a desire to avoid litigation. The institutional analysis and development (IAD) framework offers some insight into how these incentives and disincentives factored into the implementation of the Water2025 Initiative, and Reclamation’s experience with the Middle Rio Grande silvery minnow and the Endangered Species Act. As attributes of the community and rules-in-use, incentives and disincentives such as organizational culture, politics, funding availability, the desire to avoid litigation, the promotion of collaboration within the agency, and a lack of planning effort offer possible explanations of why Reclamation chose to act as it did. / Graduation date: 2012