Aug 30 2014

Lessons from the SRBA

Published by at 7:22 am under Idaho,Idaho column

idaho RANDY
STAPILUS
 
Idaho

Why did it work in Idaho?

It’s really improbable, the idea that this massive governmental-legal project called the Snake River Basin Adjudication would be an Idaho effort demonstrably more successful than any others of its kind anywhere in the country.

On Monday, when panels discussed and the final decree was signed, there was that cause for wonderment, of how it happened. In the new oral history book of the SRBA “Through the Waters” (disclosure: I published and helped edit it) this was a recurring theme. In their interviews, judges, attorneys, administrators and water users took a stab at how Idaho succeeded in this thing when other states have done less well or failed outright.

The answer boils down to trust, cooperation, and luck.

The trust and cooperation go together, of course. One recurring point (in interviews, federal attorneys especially told me this repeatedly) has been Idaho’s collection of adjudication parties and attorneys who were willing to cooperate and trust each other enough not to challenge the process in fundamental ways that might have ground it to a halt or shut it down. Just that sort of thing has happened in other states. In Idaho, the need to accomplish the adjudication was taken as a given. The cooperation extended to the legislature, which kept the adjudication funded well enough to keep it rolling without interruption.

The principle applied in legal ways too. When the adjudication launched, the state Department of Water Resources was a party to the case just like each of the water users, which meant it was adversary to the people for whom it was filing records and conducting field investigations. It also was limited in how it could communicate with the court. In the mid-90s the department was removed (by the legislature) as a party, which meant it could work with the court in exchanging critical information, and work with the water claimants on a friendly basis. Most people in the middle of the SRBA today say that change was a turning point.

Luck was a piece of this too.

Two pieces of terrific luck come especially to mind. One is technology. When the adjudication began, its managers quickly saw they were looking at an impossible mission: Producing, copying, distributing and storing hundreds of millions of pages (or maybe more) in court documents not only at the SRBA court but at courthouses across most of Idaho. In 1987 there seemed to be no way to process all that material: It was just too much. At the right moment, then, computer storage became available and cheaper by orders of magnitude, data storage on CD-ROMs became practical, and the Internet made sharing of masses of information almost easy. Technology galloped to the rescue. A decade earlier, the SRBA might have foundered on a mountain of paper.

The adjudication was lucky in its judges, too. Not all judges are good judges (nor all people in any other category), but the SRBA’s five judges all have been highly capable and well-suited to the job. And a stroke of luck: The adjudication not only got good judges, but also in the order it needed them. The first of the judges, Daniel Hurlbutt, probably was the only judge in Idaho really well suited to cresting the architecture of the adjudication court, and his talents might have been wasted later in the process. The current judge, Eric Wildman, has had the best sweeping education (working as a court counsel for years before becoming judge) in the details of how the adjudication works – perfect for winding it down.

Could Idaho bring such trust, cooperation and a dash of luck to bear elsewhere?

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