Idaho Reports; Peaceful Settlements and Columbia River Fishing

Funding for Idaho reports is provided by the Friends of four 10 and 12. The Corporation for Public Broadcasting and by a grant from the laurel Moore coming him foundation. Good evening. Mark Johnson is on vacation I'm Jean McNeil. It is often said that Americans are the most litigious people in history. Every year more and more of our disputes end up in court at enormous financial and emotional cost to the parties and to society as a whole. Whether it's two nations arguing about nuclear weapons or two parents fighting over child support conflict is expensive. One estimate put that cost at almost eight hundred million dollars a year in Idaho alone ways to better resolve conflicts and thus to reduce the monetary and psychological costs are being studied all over the country. And this week they're the subject of a major conference in Idaho. Tonight we'll take a look at some innovative ways of resolving disputes with an internationally recognized expert in the

field and with representatives of Idaho's business and legal communities. Rodger Fisher is a Harvard law professor and the director of the Harvard Negotiation Project. His clients have included the Departments of Defense and State as well as several foreign governments. He's been involved in negotiations in literally hundreds of conflicts including the Iranian hostage crisis. He's also the author of the bestselling book Getting to Yes negotiating agreement without giving in. Welcome to the program. Thank you it's good to be here. Why are Americans particularly so willing to go to court. Why can't we resolve more of our disputes without resorting to a judge. Well first it's fair to recognize we're getting more and more disputes every day more and more problems more trade travel. We bump into each other a hundred years ago we worry about one boundary. Now it's acid rain which involves millions of people hundreds of jurisdictions and there's no easy solution you can't decide on Wednesday to stop the acid rain problem. It's going to end this problem so we will be more content as a growth industry. There's more and more disputes. I think also we Americans tend to be Win Lose Who is winning the

cowboy. Frontier the shoot'em out the OK Corral. Pros of winning I think we have a psychological notion that's more confrontational so that if I win you lose I win you lose. That's like that's we. We would do that. I think basically people think I want to win. Think of my interests not our interests not what. What's your problem how do we solve it. Just to clarify first your purpose here is not as I understand it to get rid of conflict but simply to manage it better that it really is to help people understand there's a skill in dealing with differences. The contrast between war and peace lies not in the extent of our differences but in how we deal with them how skillful we are we the Russians are not very good many people of divorce are not very good. They fight the good businesses litigate cases which they could more easily settle. And so the question is if we can become better at it if there's a framework for thinking out what we really want and how to get there I think we can all do better. I realize this is a very complex process you're talking about but if you can oversimplify for a moment

what is it that that most of us do wrong. Well we focus on our positions. We decide on the answer before we talk to the other side. We tend to make an early commitment of position. We talk at them rather than listening to them. We look at their position rather than try to understand the interest that lie behind their position what are they really concerns were they worried about what or what's going on. Frequently we overestimate the alternative. We'll sue you would look so great to sue you. Litigation is a long and expensive process and you may not win. And if you do win you'll be emotionally tied up. The judge Learned Hand it to say God save me from a lawsuit. Just the fact of being involved in it is a numerous psychological strain. We tend to look back at what caused it and not forward it was the best thing we can do now. We tend to focus on our choices rather than on your choices. How does your choice look to you. How can I help you make the decision you like to make. We think of

negotiation is persuading the other side to do something you don't want to do. And I want to do something against their interests. All things considered so negotiation is really partially inventing an answer. That's in my interest and your interest and then persuading you to do something in your interest. That's much easier. There's a more creative side that is left out. Perhaps I think you'd have just answered my question but I'll ask it anyway. Looking at it looking at a negotiated settlement how do you judge a good one. What makes first a lot of things better than your best alternative away from the fact that if you can do better by self-help go do it. Don't negotiate something where you can do it better yourself. Don't try and persuade to do something you can solve the problem by yourself. A negotiation only better than your best alternative. Better than litigation. Make sure it is there to satisfy interest in my interests. Very much like my knees my home is my aunt's. I want money I want care I want respect I want to be acknowledged I want the future of this land to be available to me I want whatever security whatever it may be don't satisfy

their demand. But look at why they're making it I want my interest well satisfied and your interests acceptably satisfied so that you're taken care of too. I want interest after understanding with interest. I would like it to be a no waste option. I don't leave money on the table like to work it out so that I just get together if you. If it makes no difference to me when I'm getting paid it's very important to not have to pay before the 10th of the month. Don't abandon me when the first month. Work it out so we both can get the benefit of that slack. Work it out. We'd like it to be a no waste option. The best of many possible things we would like know when to be taken. You know the legitimate you want to know why it's fair to you. I don't know where there is fear and you know little adjustment in each of our eyes legitimately. We want to reach out efficiently that means good communication. I would like to leave this intact for another negotiation as a working relationship. And finally would like the commitments to be realistic. Well plan and that means making a commitment at

the end of the process not the beginning. Don't walk in saying I've now announced the answer before I've heard your concerns or heard your needs. Make the commitment crafted carefully but have them come after we fully understand the problem not in advance not unilaterally. That's a good outcome. Is it possible to offer any examples of situations real or hypothetical in which in which the system has worked well and when one lives in one sense I regard the Camp David process where Sadat and and Bagan came in. Is Israel demanding half the Sinai that was their position they would have to sign a Sadat saying the Sinai was non-negotiable he knew the whole thing. That was their positions but Secretary than President Carter look behind their positions and said what's your interest. Israel and security what do you mean security. I mean replacing the airfields you had. You mean keeping Egyptian tanks at least one day's drive away from Israel. Very Specific said evolution a practical solution or

interest is in security is not security in general it's we need an airfield we need the tanks farther away they want to sit out he said it's non-negotiable it would be nice that I know the flag must fly over me and they say well the flag flies over every inch of your symbolic sovereignty is recognized. Can you really keep the tanks back back here and so we're looking behind positions for their interest they're able to work out a plan that met those goals interest I think in the in the hostage negotiations over Iraq. We were saying these people are crazy. We can't negotiate with you look and say How's it look to them. And they said look if we released Americans today that long spring of 1980 we released in a day we get nothing we back down we're weak we get no money no shot and run important Reza we say no we're important we're powerful run ABC television every night we're talking to Ted Koppel we meet these things and besides we let him go tomorrow if you want to. And saying no look better. So once we looked at their choice and said What is it like then we can say how do we change their choice so they can say if we let him go

revolutions except once the debts have been paid to get the balance of our money back the Americans agree to close down the embassy called International out of loving relations I promise not to interfere in internal affairs. We give them stuff that was perfectly OK. Nothing more they're entitled to. But it made the matter negotiable they have accepted. Thank you. We'll come back in just a moment. We're going to take a closer look at the situation in Idaho now with representatives of the state's business and legal communities. Eugene Thomas is a Boise attorney he will become president elect of the American Bar Association in July. And Jim Rand is a vice president of the more Financial Group and director of their division of Human Services. He's written extensively about the negotiation process and is currently working on a new book. Welcome gentlemen thank you. Mr. Thomas if I may if I may start with you the American Bar Association has made conflict resolution a top priority in the years to come. Why have they done that. They've done it in the years to come and for the last 10 years Jeanne they've done it because they recognize that the geisha is too slow and too costly and that

really controversy and dispute followed must be dealt with can also be avoided. That combination of views together with what Professor Fischer has just said to you as well the American Bar Association to do several interesting things one is to bring to virtually every law school campus in America during the last 10 years courses in mediation and to go she should have the skills that we're talking about. Another is to support in the neighborhoods of America both the ribbon and world. Justice centers where people can sit down and talk about small personal disputes and hopefully work them out and resolve them before they become subjects of litigation. More recently there has been an effort to deal with the more complex and sizable problems that are in the courts and the American Bar Association has funded to the extent of a million two hundred thousand dollars and a series of projects including a bolted door program which in the courthouse gives people and that's one of sorts to help

them find a better way out of their problem which in the more sizable federal types of cases puts court the next mediation arbitration conference in place to spare the taxpayers and with that against much of the cost and a great deal of the heartache of this litigation. Corporate America has also responded to this it's not just the little guys problem. And we have many people in the business world today that are entering into alternative dispute resolution commitments as each other in the business world so that they will try the kinds of things. Professor Fischer has described before resorting to lawyers and court we think it's a very important part of our duty to America. Just quickly you know the stereotype of the ambulance chasing lawyer that's obviously extreme but don't people in your profession have some vested interest in getting people into court rather than keeping them out of court. Interestingly the American Bar Association has encountered absolutely no

authorization from practicing attorneys in this major effort. And I think it's fair to say that conscientious litigators for actually attorneys do not want to see people dragged through the courts slowly expensively and efficiently. They're still going to be a great deal that has to be tried out. But the figures indicate that something in the neighborhood of 90 percent of the cases that go to court really do get settled. And about 50 percent of the cases are reviewed with attorneys never go to court at all. So in this day and anywhere from 10 to 30 million dollar 10 to 30 million losses about to be filed in the next 12 months legitimate litigating attorneys are conscientious about their public responsibilities or not opposing alternative dispute resolution. Historian let me ask you for some. Examples if you can of the kinds of things you run into in the business world that this applies to. Sure there are a number of issues have been raised and will probably be raised in the next

six or eight years probably four key issues one of them is known as the wrongful termination and wrongful termination. The courts have given rights to employees that are non contract employees based on the length the service and are satisfied property right in the job. That's right. And after a certain number of years they say they can no longer or the employer can no longer discharge them at will even though that there is at will statute and many of the states. How does that happen well the economy has changed the nature of jobs and many times people don't fit that the type of jobs needs are more sophisticated or smaller. And as a result the conflict results at that point. Traditionally when he grows out of a job they will they will litigate they will sue. And and it creates a very costly suddenness as they have both compensatory as well as punitive damages. In that case and a right to a jury trial. So that's one of the key issues. Another one of those cases. That's right that's right. And since some of the cases and

another issue is being a surface through the number of acquisitions and mergers that are surfacing and not only hostile acquisitions emerge but friendly as well. Any time a corporation as part of their growth step strategy to determine that it's feasible to buy another corporation or to establish another one there's beginning to mix policies procedures cultures conflict results. And again that could lead to get into wrongful termination or conflict that needs to be dealt with right at the workplace as rapidly as possible. Some type of a resolution compensation benefits gives us another area people perceive because of the economy crunches and because of the high cost of healthcare for example that companies are taking things away from them. What conflict. The harder I work the longer I work the less I'm getting from benefit standpoint. The issue of comparable worth has surfaced in the last few years and will continue to surface. Painting is not for equal jobs as such but for jobs that are of equal value to a corporation.

Again another conflict which which could very well result in litigation. But if settled early on through an alternative dispute method could result in meeting the interests of both the employee and the corporation some of those problems are just the kind where the court can order what's required and the minimum that law requires. No judge can create the kind of order is the wise no judge can create the best solution they can say why don't you work it out like this with my training here and some help there and some flexibility and stuff like they can't just help people be creative and usually skilled negotiators or media can figure out a better solution for job security for training for work elsewhere perhaps for benefits that are this crafting is out of this better than anyone the judge can order. So if you go to court you spend a lot of time litigating paying lawyers. They earn their fee. I'm not but I got a lawyer. Myself I've practiced law and a fair amount in those days but. They're not just turning

into the pale as lawyers and you get a result that's less in their mutual interest than could have been divide Would you agree Roger would you back one step further. If you want to that exercise are good examples of places where by informing people and communicating you can't avoid controversies avoid disputes. When you see a soused Varia commune with law related education to the participants the really the best thing is avoid disputes. I believe and even there I don't agree very much and in labor business disputes we found that joint training six months before a labor contract runs out. You take the 16 union presidents you take the 13 corporate executives who are responsible to go shares and they have a three day residential training of how should we conduct our next negotiation. And you mix them up together the exercise and games they end up having a glass of beer together the whole attitude of how we can avoid a strike which is bad for both of us. How are we going to work out productivity in ways that don't have the Japanese get

better prices than we do how can we work this out when you're given a shared perception and getting away from this confrontational side to side by side at the table working on it. It's a lot to be done in the pre-crisis pretty dispute area. To give you an example that's that really sad Roger mention of the court's going to only order what is right in a wrongful termination what is right just cause and due process which means that you have to go through an agonizing period of allowing forcing people to fail. Well if you can get in ahead of that and offer some options to that person a different job possibly small placement assistance in finding another job meeting the interests of the people instead of having to prove the exact way to exactly and I think that's where it needs to be hit before it gets into it. You know there are some countries in the world that don't really think that every dispute has to be resolved. There are some countries in the world primitive although they may be that will take disputants that can settle up and make the meter go to the opposite end of the island. That's the public's response to dispute and we Americans may

have when we say justice for all. We may take that a bit literally I think that Roger in your opening comments you mentioned that we are a nation that seems to want to hammer it out. And that's one part of it we look also for complete answers I agree with you that it's not how you settle the thing definitively. Last summer we had Soviet to Soviets that harbored for a month and I brought over who teach negotiation for the Ministry of Foreign Affairs in Moscow. This guy said OK let's As Let's design a course to coach teach we'll go to Europe. What planet right now next summer 86 a plan of a joint training for diplomats and international business negotiators jointly taught by Soviet and American faculty on how to negotiate. I said What would you teach. And he said Well I'll teach about negotiation the next decade is going to be more complex. More of this he said. And we're not going to solve these problems even if we negotiate a treaty the next day we have to sit down and start managing how we can deal with the next problem is that it's not a question of signing a boundary treaty

BVI 20 years it's going to be dealing jointly managing our differences dealing with this and not expecting the once and for all tidy solution. We Americans are at the Syrian confrontation we also like the idea that somehow tomorrow morning the whole thing is going to be solved once and for all never see it again. And that's not going to happen I say with acid rain it's not going to happen with a lot of international problem not having labor problems you can't suddenly stop the technology change that is right techno divorce cases involving children and lingering problems. That's right. Do we have to talk about power here a little bit. So for example take a situation of a wealthy landlord to one who for instance could hire your firm to represent them take it take it poor and perhaps illiterate tenant who has no resources. Isn't the function of the court to make sure that that person with no power gets a fair shake in that deal. Yes I would say the court is there as a last resort and certainly that's the poor tenants alternative is OK I can walk away from the gauche ations to court. It's

very important it's there but. Once that court is there the tenants power is going to depend upon understanding the landlord situation knowing their real concerns understanding and inventing some options that solve the landlords problem. That is figuring out what's good for them what's good for me. Big high legitimate So the community the public and the legislators the newspapers will see I am being fair and they're being unfair but that means being legitimate. It means being fair it's not just accusing people. And there's a lot of power and that is pulling all together the elements that are talking about a good outcome if you orchestrate those. They have to be in harmony with each other. You can't just say I'm a very legitimate guy with a whole economy or had it all burn the building down if you don't give it to me and you have to orchestrate them has to be appropriate situation for this situation. And then the person has to say what they believe and believe what they say. There's a business of whether it's

charisma whether it's honesty integrity. You can tell a negotiator said look I think this is right. Why is this fair. I believe it I'm saying and it's easy to be stubborn in support of being fair. And to be stubborn in support of things down I guess I take that point. With the disagreement to what you said Roger and add to it. However that we really must as a society provide a more accessible in and could be uncomfortable resource for that individual you're describing Indeed I think for the landlord and the tenant because practically speaking the economic burden is debilitating to both sides and create for all of those parties to that dispute. Perhaps a neighborhood dispute resolution program. Perhaps an abutment program in the court house. We we really need above all to see to it that we don't in the interest of avoiding dispute make the poor person or the little guy lump it because they won't do it. Americans are not

going to just simply be deprived of justice. If our system is going to work we need to provide that resource that service and keep that fight from going out into the back alley of our community let me ask you one question on that. Right now the taxpayers will pay the cost. It took who want to fight the taxpayers rent the arena that is the courthouse I pay the judge's salary the clerk to pay the cost of the fight. If two of us want to settle a case but we need help. There's no need here. When I go home in Idaho Roger we do have one place where the state taxpayer does that. That isn't medical malpractise to crisis some time ago developed a very successful communication screening program here different from any other state in the union. And that's the one exception that I'm aware of in this state. What do you think of publicly funded so that every courthouse has a mediator that you can someone at least explore where they can quickly settle this case and then have CDnow parties tend to have to let's agree to mediate

Let's agree on a mediator let's agree who it is when we're going to start you know if they can agree on that they don't they might not be THE COURT Oh you're exactly right and as a part of the future of the courthouse the future is what these people are calling it. Is a moped or courthouse that brings to those disputants mediation and help and cuts this thing off early. Maybe satisfies a psychological need to kick somebody in the sheers that doesn't tie them into a 12 month course of litigation. Our Dr exactly right. We should build into our system. That kind of comfortable convenient help because I think we have. I'm glad to hear you say that because I am increasingly getting my do some private mediation for business is helping itself out and I'm increasingly convinced that a third party can't talk to each one privately to find out what's going on. I settle a case a couple years ago with one of my young colleagues about three years ago now two big businesses that he spent a million dollars on legal fees and having to start a trial here. We're not this complicated.

Hundred seventy nine page settlement agreement that said we would probably get signed by 41 corporations partnerships in the visual but I want to take in years to litigation if they had gone through and creatively talking and working it out and someone working toward settlement can do enormous good on big cases. And I would say for sure our little cases of these are yet to settle most of. Haven't you seen situations in which I think I think what you're talking about depends on the assumption that there are always at least interests that are not mutually exclusive between the parties have you ever seen a situation where the party simply had no interest in common or perhaps had some interest in not resolving the conflict. Yes there's possible some people mean the Iraq-Iran war right now is going to case where both sides find the work functional leadership would rather have a foreign enemy than face their domestic problems. And you can find the same in business girls are diverting attention does not exist when it is in any real practical problem. Both

sides they may be far quarreling over $100 to belong to either one of the other. But it's a shared interest in settling that question efficiently in a low cost. With that it's easy to see that is just one of the quality of a house. There's a shared interest in not wasting our time doing Wouldn't you rather is it an example of what Gene's asking about is the very frequent lawsuit filed just a few days before a general election in which somebody is charged with libel slander. Now when was the last time you ever heard of one of those cases being tried. So look for the five or ten days before the. General Election. There's a great deal of hullabaloo about that dispute nobody wants to settle that dispute. But once the once the election's over nobody cares enough even to go to court and rather to get a dismissal but there are cases I suppose Brown against school board or cases where you were calling on the courts to help change the law to bring the law in line with our current thinking to bring the rules in line and not you and I can settle that but it wouldn't deal with the racial discrimination issue if we privately

settle the case a real role for the court. There's a role for the courts in cases of a public concern of that kind. Do you see those kinds of situations between labor and management as you certainly do and in fact mention the power question. We created in his last employer a situation that in a nonunion operation an opportunity for the final step of the grievance procedure to be mediation outside mediator. After a year or so experience we thought nobody used the procedure beyond the first or second step. We felt that that the mediation had been threatening or so forth so we can we change the procedure to allow mediation at any point in time. The first step everyone called mediator infight mediator still isn't calling but the interests of both the employee and the employer were being met. More and more locations because of the power of legitimacy. They knew that fairness was going to be out there regardless of so so neither party took an extreme case of the state of California has an arbitration statute on the legislature

which is an attempt to reduce the amount of litigation and require the parties to go to final buy you know ration would you be in favor of such legislation and I'd hope that about 30 seconds to answer. Well I favor the pre litigation screening panel and in the proper setting. Absolutely I think we should as a public policy matter really deal with these disputes. I'm afraid we are out of time. Jim Thompson Jim Rand thank you imagine that you are. Thank you for joining us. That's all the time we have for tonight. Later in the week we'll look at how this concept might apply to one particular issue in this case the fight between the state and Indian fishermen over salmon and steelhead runs in the Columbia River. That's all for tonight. I'm John McNeil. Goodnight. Funding for Idaho reports is provided by the Friends of four 10 and

12. The Corporation for Public Broadcasting and by a grant from the laurel Moore Cunningham foundation. Burns wants an A. Funding for Idaho reports is provided by the Friends of four 10 and 12. The Corporation for Public Broadcasting and by a grant from the laurel Moore coming him foundation. Good evening. Mark Johnson is on vacation I'm Jean McNeil Monday night on this broadcast we looked at

some innovative ways of resolving disputes ways designed to reduce the financial emotional and sometimes physical cause costs of conflict. Tonight we're going to try to apply that knowledge to an issue that has sharply divided the northwest. The issue of Indian fishing on the Columbia River. Here to help us do that is a man who makes his living training people to resolve disputes without resorting to the courts or to violence. Re Sean Holtz is a former criminal lawyer and law professor. He founded and runs the community boards project in San Francisco. Welcome Mr. Suttles Nice being here. Briefly what does the community project do. We have been experimenting for the last seven years in recruiting and training people in neighborhoods of San Francisco and now I should mention about 16 cities and a couple of Native American Indian tribes in handling the spirits between people in the neighborhoods and in the tribes without resort to police courts or attorneys both small this one to one a landlord tenant type disputes as well as her ill origin complex disputes that

have several parties and multiple issues. Why are you able to have success when presumably by the time these disputes get to you other forms of trying to resolve them fail. What we've been doing is entertaining people to you and neighborhood forums early before in fact they situation become so tense or there's any violence in the spirit to use it as a prevention mechanism in the neighborhoods and to de-escalate the tensions and conflicts in the spirit by discussing the issue as early as possible and by addressing as many different issues and conflicts as possible getting all the parties that have that are stakeholders and to step forward and say what their interests are so it's been a very effective way of bringing people together well before they issues get framed by attorneys in a litigation suit. I think you just outlined a couple of principles getting two things are really getting in all the parties. What other one of the other really critical principles that people are going to shoot success. Well I think one of the real secrets of the work is so for it is that it's a voluntary process

which means there is very little. Risk in buying it at the beginning you're not making any commitments at the beginning of the process. I don't make any real commitments all the way through the process and it's only when the resolution is something you really want to see and hear to and it works for you and your interest. So at that point the people sign an agreement so we're not asking people to do anything until the large group disputes them to outline what their interests or discuss those interests clearly with other people or in the spirit with you to clarify if that your interests and their interests aren't actually on a collision course to find what common ground may exist or may not exist. And from those positions being in the see if there is some basis than was forward so the entry level is so low that there is an encouragement for people who have actual conflict one with it lacing it a little bit of time to explore. And if they really articulated what their concerns were perhaps those concerns are not things that the other side is opposed to and that I think is a very important factor the fact that it's voluntary and the fact that there is no commitment at the beginning. Thank you.

We'll come back in just a moment and see if we can apply those principles to the dispute that we'll be looking at tonight. Indian fishing in the Columbia River system. That conflict is not a new one in Idaho it goes back at least five years in the spring of one thousand eighty. Based on a low count of chinook salmon returning over dams on the lower Columbia the game department closed a tributary of the Salmon River. The agency ordered the closure as a conservation measure claiming that returning to maintain a viable fishery. Hearing that members of the Nez Perce tribe plan to exercise what they consider treaty rights to fish for the salmon. Idaho officials state police and conservation officers into the. Confrontation and demonstrating the frustration felt on both sides. Some 30 fisherman camped by the river rested their gear and their fish

seized. The following year tribal officials agreed to the river closure and the controversy ended at that location. However the emotionally charged rhetoric continues as Idaho state officials and representatives of the downstream tribes battle over management of salmon and steelhead heading for Idaho Salmon River. It's one thing for folks to be able to go out and take the number of fish that they want for personal use and for other uses. But when you get into the commercial aspect it sort of brings out the greed in an individual and and that's what we're dealing with. We're dealing with a resource to them is only worth so many dollars. Certainly fishing on the Steelhead run this last year was not in anybody's book. Good conservation practices. It's not fishing the fishery out of existence is the fact that. The highest priority is ceremonial subsistence. The tribes are going to exercise it. There is however a question of who is looking out

for the fish and we would humbly suggest that it has been the show shown by many above Oregon and Washington above the other tribes and above Idaho because we are the only user group in the international sphere of the exploitation of these fish you do not take them for money. We've gathered three of the players in this dispute and from them I think we'll get three very different perspectives. Jim Jones is Idaho's Republican attorney general he has been to court several times on the issue and most recently last an effort to block an agreement on spring Chinook fishing. Tim Rapido is the director of the Columbia River intertribal Fish Commission which represents the Warm Springs Umatilla Yakama and his purse tribes. And Larry Echo Hawk is a Democratic state representative from Pocatello and an attorney for the Shoshone bannock tribes which have sided with the state against Indian fishing downstream in this case. Gentlemen what I'd like from each of you if I can get it in beginning with you Mr. Jones is a brief summary of how you are you from your particular perspective see this mission.

Mr. JOHNSON. I don't think it's so much a fight between endurance and lawn and it's a fight between upstream freshman including NS and on and against down is questionable. And then when and over what constitutes the proper management and conservation practices that should be applied with respect to the unanimous fish we feel that the downstream folks have been taking too many fish that they haven't been sensitive to environmental considerations and we feel that if they exercise more restraint downstream in the number of fish that they take there will be more fish for all of us but it's going to take some restraint. The state of Idaho and the Shoshone bannock tribes have been exercising that restraint we don't believe the downstream fishermen have you believe also I think that you have been in that state of Idaho is being kept out of this process. Yes we feel that we have not been included in on meetings that decisions are made in that we were not

notified when these meetings were taking place and that we should have them. Thank you doctor I mentioned your views a little different. Yes it is the Columbia river tribes exercising fishing rights below. I do hope you are in no way depleting the runs it's not a conservation issue the runs are all increasing the Steelhead run has increased from about 100000 in 1980 to three hundred fourteen thousand last year and it continues to increase. The allocation issue is what is really in it's not in a conservation or management issue. We as the Fish Commission for those tribes have been seeking to sit down with the state of Idaho and truly undergo sheets and plans we do this with the state of Oregon we do with the state of Washington. And we're seeking to do it with the state of Idaho. One of the major problems we have in that process is a lack of understanding

in a lack of knowledge acknowledgement on the part of Idaho officials both the attorney general's office and the Idaho Department of Fish and Game recognizing the tribes as true managers and cool managers and we can get into a lot of rhetoric back and forth but that's that is the case law that is the governing law in this. What has been termed a controversy and until there is a ticket an acknowledgement that the tribes are going to manage that resource and the best way to manage it is in conjunction with you know who Department Fish and Game not through the courts the courts give you a very simple solution to a very complex problem. And they can't order production practices are in those. You get into a very basically just a win lose decision out of the courts and that really doesn't address the problem. Thank you Mr. Hawkins Mr. Jones suggests this isn't entirely

Indians vs. non Indians in this case the Shoshone bannock tribes are on the state side. Well that is something that's very unusual about the dispute right now is that we see one Indian tribe lined up against the interests apparently of the four downriver Indian tribes. I think that is the case simply because the Shoshone banks have had to have severely restricted fishing in the last few years since 1978 and mounting to a total closure and last year's fishing season. We simply have a den of FIDE that our interest is similar to Idaho's interest in trying to get more fish up river the Shoshone bannock tribes feel that they have a treaty right force of ceremonial and subsistence fishing the same as the down river tribes. Only by the time that the runners reach Idaho there's not sufficient fish for us to be able to exercise that right. OK well thank you all three of you this shot helps I realize you've just gotten a crash course in a very

complex issue but with the disclaimer right up front that we're not going to come to any solutions here and nobody expects any commitments from anybody. What are you hearing. Well first of all we have very skilled people very knowledgeable people around the table around dispute that they've lived with for a long time. And in the course of that we have some positions that they have taken. I hear questions being raised about if everyone's participated in this recent round on this dispute or an attempt to settle it the state raises the question of whether it's been a party to any of the decisions that have been taking place to to date. There are some serious questions on the table about perhaps the data but more importantly some recognition and not an acknowledgment that there are some real interests here that are being disturbed. There are some feels like some pain in the knees and is about the possibility. Whether it's the case or not it's not clear about the possibility that perhaps one tried maybe in fact pitted against another tribe. Then in two of those kind of things are completely aired. It may be very

difficult to go forward and lawsuits and litigations as the film indicates narrow the issues so tightly that the real form of resolution that needs to take place cannot take place often in a law court. These are both tribal cultural economic social issues law courts don't handle that range of issues very well. One of them maybe but the combination of them together no one will walk out of that courtroom completely satisfied. Is it too late do you think these folks have been to court several times is it too late for some sort of process like this. It's never too late to talk and perhaps one opportunity may be in conflict always provide some opportunities. That's one of its beauties as well as the downside is it has a lot of pain and difficult to the upside is there are some openings and opportunities one might be that an opportunity to make no commitments just to talk to clarify what the debt is a see if there's agreement or disagreement if so that if there are disagreements what exactly are the disagreements around the debt. What form of acknowledgement

in fact. It would be needed here by either of the tribes and understanding its cultural situation as well as its economic and what form of participation the state really want. What does it need. What does the state really need to feel like its a full participant. One could have those discussions without anybody making any commitments at all to the resolution of this conflict. But in the process of those discussions one may in fact find that that there are some common grounds to move from that perhaps some resolutions maybe not all but perhaps all but some resolutions might be made to narrow the differences so that then what shows up our differences that there are clear distinctions around. And then one can go from there. So there are some possibilities here I would think. Well let's ask them how that sounds Mr. Jones it's true up until what you propose proposing talking with no commitments as I understand is that is that a good thing to do. Well I think it's certainly worth a try The only problem is that quite long ago more than 10 years ago a standby in a home tried to

negotiate the matter tried to work with the people downstream at that time it was Oregon and Washington who were the essentially in our eyes the bad guys. We tried for quite a number of years to become involved in the Columbia River compact and were never allowed in. And at that time that was a form where the decisions were being made. Wayne Kidd Well when I turned to General predecessor in 1076 filed suit against the states of Oregon and Washington and two years ago we got a somewhat favorable resolution to that suit. But in the interim the fish runs have declined and the people who were essentially depriving us changed a little bit changed in the states of Oregon and Washington to the inner trival Fish Commission. And so all of that process during all the process we've been trying to gain participation in the forum where it looks like we may be able to get

some court protection for what we see as legitimate conservation objectives. Isn't the suit of United States against Oregon which is a federal district court case in Portland Oregon. We attempted to become involved so that we can have our input and have our say sell our motion for energy. Mention was opposed by the commission the Ninth Circuit said that we could become a participant in that case and now we're trying to exercise our rights. Mr. Weber to I think I hear him saying yes we'd love to talk but you haven't wanted to. Well that's not quite accurate. The compact which Mr. Jones alludes to is a. Formed by an act of Congress it was formed in 1018 Idaho didn't want in the compact at that particular time. Wasn't until 1976 that there has to be in it. Mr. Jones knows very well it takes an act of Congress to change that compact. The federal court did allow Idaho into the case on a limited basis. Mr. Jones knows very well that they attempted to shut down the fishery two weeks ago

and right whose position was totally repudiated in the court reversed and the fisheries as they went down hill as as Mr. Jones just went down hill when the dams came on the river in the Snake River system one hundred seventy three thousand nine hundred seventy seven is when the return of those dames should would be coming back and that's when the bottom dropped out of the fishery. It's not the down river tribes to the fisheries that we're talking about in Idaho. Our spring Chinooks and they're stealing the fisheries that are our prime rib and better fisheries are fall Chinook which are not the Idaho Fish and and so what we're saying is we're not harvesting the fish that are getting back to Idaho people we get. Back to nature she writes It seems to me that hearing a couple of things there a lot of history right. A lot of the legal problems and some dispute and basic facts what do you do when the parties just say they can't agree on what's said.

Well I think what's most interesting is they're talking and I don't hear anyone saying they're suing each other. Not this point anyway. Let's say it's two weeks good that's a relief. You know maybe that's the all I'm just I mean the issue is so complicated that there may be you know maybe even it may be sufficient to move forward to agree to disagree. I mean there's no particular magic in agreeing. The history is history one can say we disagree around the history whether we want the world to look like tomorrow because tomorrow is what's facing us. I mean not yesterday. And so the history is helpful to a degree and to agree that it becomes positions again for why we're doing what we're doing in life. It's not helpful any longer. It doesn't move. It doesn't move the action forward. If the history doesn't effect move the work forward. And that's different but it may be at a point where one realizes we have honest disagreements. We're not we have different perspectives. We can agree that we have different perspectives and what does

that say about what we can do with each other tomorrow. So I don't hear necessarily that because there's disagreement there is that that there's a foreclosure from going to the discussion about tomorrow I haven't heard that at all. I say it's promising. That's what I would say at this point what are you hearing Stricker talk you see this from a somewhat different perspective I think you're hearing room for room for talk there. Well I think there is room for talkin and that is a productive thing to pursue. The Shoshone bannock tribes have attempted to enter into discussions like that along with efforts aimed at Habitat enhanced meant to generate more production of the fish. They have gone through the process of self imposed regulation. Finally when no more fish were coming back up the river system they entertain the idea of intervening as Idaho did in the federal court lawsuit that's been ongoing for some 17 years at that point we finally attracted the

attention I think of the other down river Indian tribes when we positioned ourselves alongside Idaho and opposing some of their fishing. And I think that's maybe been a catalyst for. Opening the door to further discussions with the tribes we have attempted that in the past and have not been very successful in our eyes. Admission to their Fish Commission would have gone a long way toward resolving difficult issues we were turned on that turned down that a number of years ago. Can you ask again. I think you don't come to that we'll probably get the same answer but even though we don't have the admission to the commission if we go through meaningful discussions that lead to better management and allocation decisions that'll be success knotting students. Well I mean the issues are complicated unless people are willing to learn is the Gordian knot and you can take the sword out and try to cut through it. That doesn't work

real well in complex disputes like this and you have to spend some time doing a little bit of an unraveling and and do some new building. I mean most complex disputes at some point people say we build some new context and we build some new positions. The fact that the Indians are postured the way they are may itself be a sufficiently new development for a change in the con pre previous context to warrant an examination of the issues. Even if one of the groups does not have admission to one of the commissions that they feel they ought to and in the past have sought admission to may turn out to be not the critical issue if they get their other needs met. That's the real issue I mean I would think I mean it's not process is fine but the real question at the end is what's the result. And if the results. I would guess but there if one didn't get access to the commission but got the results that you would have gotten this or feel confident might have gotten you into the commission provides in the context for further discussion

at another level. So it again feels like there's a willingness to explore if there's anything in common. There's no agreements here just again there's no need to agree at this point about anything other than perhaps keeping a dialogue and a process I mean that that a third party managing a process is very helpful because a third party is not a stakeholder. It doesn't you know it is able to keep the parties on track and everyone here around this table is very very skilled in these things and not saying anything that. They're not I think quite familiar with it. It would seem to me and I'd like to check this with all of you but it seems to me that something very basic in common it doesn't do any of you any good if no matter who is responsible the fisheries are ultimately damaged. That's been our position for every year and it's still our position our position is you have to sit down you have to talk and you can't litigate it because

once you start litigating then you're back to the positions we wholeheartedly support that we use that we use the state of Oregon we use interstate or Washington were involved in ocean fisheries where we had to go out and actually try and shut down the ocean fisheries were considerable damage was being done. And through that process get into a series of negotiations and we certainly encourage Idaho to participate in this different you want to thank you. Yes I I think that we certainly can discuss these issues. At the outset I think that everybody agrees that the more fashion coming up the river the better off everybody else. The only problem is that there's a basic difference I think in the management philosophy. The downstream tribes in the case of us against Oregon in 1983 took the position that they should be able to fish and tellme the runs reach the endangered

status. The Ninth Circuit Court of Appeals said we're not going to buy that the show shown batiks and the state of Idaho takes a position that many more fish have to come up the record or the runs can be generated. But I think that there is some ground for compromise and discussion in the past one of the problems of the upstream folks has been that we've been a little bit fragmented with the cooperate to the attitude that we have with the Shoshone bannock tribes and the state I think that we somewhat strengthen our position by being sort of united as as upstream fishermen. And I think if we can get our position strengthened then negotiations and get a foothold in the court proceedings then negotiations become more positive because we've equalized our bargaining power somewhat more than I was going to mention that.

I mean that's clearly another issue it has not been mentioned is that and that is the in fact the power in differences of power between the participating parties and that's an important issue at some point to clarify that issue here but I need to clarify. But another part that I think is very important. Would think it would be a state interest. Quite frankly and one approach might be what. What could be done to me instead of the starting point being what the state says its interest is its position or any of the particular tribes. What might each of you do in fact to meet the other person's interests. And what if the starting context was not what's good for me. What if the starting contacts were what could I do to meet your interests. What do I really have to do to come and get an agreement from you. What do I have to do. What do you need from me to satisfy you and what do you need from me to satisfy you. And if we turned it around and were last protagonist

with one another and took a position of OK we do want to find some common ground. So I'm prepared to say I will put an interest up a hold on my interests for a moment. They're real. I'm not going to. Compromise and that this they were real but recognizing that if I were a party I would say to you at this point what can I do to help the state meet its interests. What do you need from me is a party that would really help this move along. We only have a couple minutes left so I'd like to ask each of you to respond to that I think that's pretty fundamental. Well I think that's a positive way of looking at things is to try to identify the interest of the other parties of course that's what we want to down river tribes to do the show Banas look at us and say we haven't fished in a quite We are interested in preserving the wild whims of salmon not just hatchery fish. Let's do something to help out the show but very quickly can you can you do that. Sure we're interested in those types of things I have to dispel one thing

though that the fisheries that we're talking about here aren't fisheries that we're taking. So we're not committed enough and I think it will shoot off but we do. Totally supported negotiated not negotiated settlement per se but to discuss how we work out each other's needs in how we then many just system to do that in the Congress feels that way too because they've passed the regional power act and has a similar steelhead enhanced and very shortly you're going to see a Northwest delegation effort to make a comprehensive fishery package and we hope Idaho is aboard Mr. Jones can you what can you look at to muster up those interests and say What can we do to meet those. Well I think we certainly can. As a matter of fact that's basically the process that they state and then it drives used to reach an agreement to work together and the horror we've cement of that and of the negotiating process I think now we

can in sort of a united effort look at the at the downstream fisherman time land on tribal fishermen and say Is there some way that we can use that same process. Well on that hopeful note we are out of time Jim Jones tomato thank you very much for joining us tonight Larry your call hawk and racial insults thank you very much. That's all for tonight I'm Jim McNeil. Goodnight. Funding for Idaho reports is provided by the Friends of four 10 and 12. The Corporation for Public Broadcasting and by a grant from the laurel Moore coming him foundation.

In the wake of a major drug and point shaving scandal at Tulane University which the state announced last month that it will begin testing football and basketball players for drug use. Other schools in the Big Sky are also considering such tests. Tomorrow night and I don't know reports on look at the controversy over drug testing and concerns about integrity in intercollegiate athletics.