Common Ground on Hostile Turf

Stories from an Environmental Mediator

Lucy Moore

• Publisher: Island Press
• Year: 2013
• Print ISBN: 9781610914116, 9781610914109
• eBook ISBN: 9781610914123
• Topic: Business
• Subtopic: Business generale
• Index: Business

In our increasingly polarized society, there are constant calls for compromise, for coming together. For many, these are empty talking points—for Lucy Moore, they are a life's work. As an environmental mediator, she has spent the past quarter century resolving conflicts that appeared utterly intractable. Here, she shares the most compelling stories of her career, offering insight and inspiration to anyone caught in a seemingly hopeless dispute.

Moore has worked on wide-ranging issues—from radioactive waste storage to loss of traditional grazing lands. More importantly, she has worked with diverse groups and individuals: ranchers, environmental activists, government agencies, corporations, tribal groups, and many more. After decades spent at the negotiating table, she has learned that a case does not turn on facts, legal merit, or moral superiority. It turns on people.

Through ten memorable stories, she shows how issues of culture, personality, history, and power affect negotiations. And she illustrates that equitable solutions depend on a healthy group dynamic. Both the mediator and opposing parties must be honest, vulnerable, open, and respectful. Easier said than done, but Moore proves that subtle shifts can break the logjam and reconcile even the most fiercely warring factions.

This book should be especially appealing to anyone concerned with environmental conflicts; and also to students in environmental studies, political science, and conflict resolution, and to academics and professionals in mediation and conflict resolution fields.

CHAPTER ONE

Introduction

Jacob Viarrial, governor of the Pueblo of Pojoaque, sat at a folding table next to Richard Lucero, the mayor of Española, New Mexico. They were at the front of a linoleum-floored all-purpose meeting room at the pueblo that served as council chambers, senior activities center, and, on this particular day, a place to talk with neighbors about groundwater contamination. The walls were covered with photos of the governor’s parents and grandparents, his ten siblings, and others from earlier days at the pueblo.

When the chairs were filled and the time seemed right, the governor leaned over to consult with the mayor and then stood up and moved behind a simple wooden podium. He was of average height and above average weight, with dark, curly hair and a face that could have belonged to a prizefighter. His features reflected his heritage, Hispanic and Pueblo, but they seemed to have been beaten into place, with a kind of lumpy result. His forehead and prominent nose were beaded with sweat—as they were in any weather, I would later learn—giving the impression that he was really hot, really nervous, or seriously ill.

He welcomed everyone and told a joke, clearly to warm himself up. I could tell he was nervous but also that he was a powerful leader, able to use that nervousness to win over an audience. Everyone laughed at the joke—about three Indians in a boat, patterned after three lawyers in a boat, three religious leaders in a boat, and so on—and then the governor began to explain how this meeting came to be.

He introduced Mayor Lucero and said that the two of them had met recently in Española at a restaurant and had talked about the groundwater quality crisis they, as neighbors, shared. The state had sampled several wells in the area and found high levels of nitrates, probably coming from septic tanks sited too close to wells. The population in the valley was exploding and, with it, the number of wells and septic tanks. Something had to be done, he said, but—and here he hesitated and took a drink of water from his coffee mug—with all the hostility between the pueblo and its neighbors, it was going to be tough.

He was referring to the monster water rights adjudication known as Aamodt, named after the first person in an alphabetized list of thousands of defendants, all water users living in the basins formed by three small tributaries to the Rio Grande. Filed by the State of New Mexico in 1966 for the purpose of clarifying—“perfecting” is the legal term—the water rights in the water-short region just north of Santa Fe, the Aamodt suit has become famous as the longest-living federal litigation. Back in 1987, when the governor called this meeting of his neighbors, it was twenty-one years old and had already wreaked havoc on relationships in the valleys.

Because in New Mexico the state engineer begins the adjudication process by suing every water user in the basin, what is supposed to be a straightforward administration of water rights—deciding who has the right to how much water—becomes a legal battle between the state and each water user and, inevitably, among all the water users. The adjudication process is incredibly complicated as the state tries to balance the claims of individuals, irrigation districts, municipalities, and industries with Indian rights and federal interests. The existence of an endangered species, the needs of a federal agency, the unpredictability of rain and snowfall, and the relationship between surface water and groundwater can add more layers of complexity and more years to the life span of the adjudication. Users are pitted against one another in a battle over every drop. There is serious social and economic fallout from the uncertainty of future water supplies, the fierce competition for scarce water, and the litigious forum for decision making.

This was not always the system in northern New Mexico. Neighbors for centuries, Pueblo and Hispanic communities traditionally shared the scarce resource proportionately. In a dry year, those with land farther upstream—usually the Pueblos—would take less water so that their neighbors below weren’t left dry. But since statehood in 1912, New Mexico has lived by the prior appropriation doctrine, which grants a full water right to whatever entity first put the water to use, the one with the earliest priority date. Those who put water to use at a later date are junior rights holders and must allow the senior rights holders to take their full portion of water first before taking theirs.

As the earliest documented users of water in the basin, the pueblos in the Pojoaque and Española Valleys sit in a very favorable position. Their Hispanic neighbors come in second, with dates from the 1700s and 1800s, and Anglo newcomers are usually last in line. Legally, the four Indian pueblos in the valley could end up with the right to take all the water they needed before any other needs were satisfied. Non-Indian residents in the valley panicked at this prospect, and the pueblos became the target of fear and animosity. Demonstrators carried empty buckets and “We Need Water, Too” signs in front of the courthouse in Santa Fe. Children waiting for a school bus reportedly threw rocks at Pueblo kids because they were “taking our water.” On that July morning in 1987 when the governor invited his neighbors—Anglo, Hispanic, and Pueblo—to the council chamber, the situation created by the Aamodt adjudication was in crisis.

“I want to make a rule right now,” he said, “and the rule is that in this room, as long as we’re meeting here at the pueblo, no one will say the word that starts with ‘A.’ You all know the word I mean, and I’m not going to say it, and neither is anyone else. Anyone says the ‘A’ word, they’re out of here,” and he flung a stubby finger at the door. There was silence. Everyone knew the governor was right. If anything constructive were to happen, the lawsuit that had shaped their lives for over two decades would have to be off the table.

“And one more thing,” he said, pulling a big red kerchief out of his pocket and mopping his forehead and nose. “I told the mayor that we should meet here at Pojoaque because this is Indian land, and I can keep the press out! The mayor doesn’t have that ability, but I do, and that is another rule. There will be no press at these meetings. They’ve done too much to drive us apart, and we don’t need that here.” This brought applause. Now the governor was at ease, and his passion poured out.

He invited audience members to speak, and several did, relating anecdotes about the water contamination and expressing hope that this kind of cooperation might work. Mayor Lucero spoke on behalf of the town of Española, pledging to work as neighbors and partners to produce safe drinking water for all valley residents. “This contamination knows no boundaries,” he pointed out. “It will pollute all our wells, Indian and non-Indian. This is not an issue to fight over; it’s an issue to fight together.” The meeting ended with thanks from Lucero and Viarrial to those in attendance.

The governor said that everyone was welcome to stay for lunch, compliments of the pueblo, and as if by magic four women appeared, all relatives of the governor, with big aluminum pans of enchiladas, Crock-Pots full of red chile stew, bread, Jell-O salad, and cake. Most people stayed; the smell of the food and the chatter of neighbors were too enticing.

The Española and Pojoaque Valleys Water and Wastewater Steering Committee, born that day, became a force for progress and good health in the valleys for several years. It had no bylaws or mission statement; the members were whoever showed up that day. The one certainty was the lunch, always worth the trip. Grants were written, projects were funded, there were water fairs and school poster contests, and a brand-new sewage facility was built to safely treat what was pumped from the septic tanks. Governor Viarrial guided the group, sometimes with more cheer than at other times, sometimes frustrated by what he had read in the paper that morning, but never giving up. He and I developed a close relationship as I took on the role of note taker and, eventually, facilitator for the meetings.

He applied that same perseverance and courage to promoting his pueblo. He was determined to make his community self-supporting, but with such a small population (fewer than 500), any federal aid from the Bureau of Indian Affairs was meaningless. “Our criminal justice division doesn’t get enough money,” he said to me in one of our early conversations, “to buy one police car. It’s barely enough to buy the tires!” He had put his pueblo on the map with a destination resort, golf courses and casinos, a cultural center and museum offering classes in art and culture, and a state-of-the-art tribal government complex. In the process, however, he had engendered a new wave of controversy. He was impetuous, outspoken, often outrageous in his advocacy for his people, with little concern for the consequences. In a protest over state taxation, he ordered tribal police to close the highway that ran through the pueblo linking Santa Fe, Los Alamos, and Taos. And of course he was criticized for using precious groundwater on his golf courses. His answer was simple: mainstream society has been building golf courses and making money for a long time; now it’s our turn. But throughout this stormy career, he continued to try to build bridges with neighbors and never lost his sense of humor and his willingness to take risks. And he always made sure to feed people. He died in 2004 at the age of fifty-eight. The Aamodt suit, finally settled in 2010, outlived him.

For me, that first meeting with Governor Viarrial was thrilling. I saw someone, a significant player in a serious conflict, with the courage to stand up in front of his enemies and suggest that there was a better way to coexist. He asked them to set aside the hostility, and said that he would do the same, in order to address a shared environmental crisis. He led them to a common ground where they could be neighbors in the true sense of the word. I saw the power that lies in an individual willing to be vulnerable in front of the enemy in the interest of solving a problem together. I was hooked.

Since that early experience twenty-five years ago, I have mediated dozens of highly controversial regional and national conflicts concerning the allocation, use, and management of natural resources and the development of public policy. I have seen the power of a personality, such as Jake Viarrial’s, make or break a process. I have marveled at how cultural differences of all kinds—from corporate to ethnic—can keep a good solution from moving forward. I have discovered the value of anecdotal knowledge in a sea of technical data. I have learned how to deal with historical trauma when it rises to the surface and threatens to sink a resolution. I have learned that for the mediator, as well as those at the table, it is critical to understand and honor the human side of conflict.

This book offers a fresh look at conflict resolution through my eyes as a mediator. It is a collection of stories that illustrate some of the most thorny challenges I have faced while struggling in the trenches of environmental and public policy mediation. I hope that my experiences will be relevant to a broad audience—professional and lay—and that the reader will find them instructive, entertaining, and above all thought provoking. For my fellow mediators, this will be a chance to squirm, groan, and laugh as you see me in predicaments you know all too well. For the classroom, the book provides real examples of the polarization that undergraduate and graduate students will encounter in their chosen field—environmental studies, public policy, resource management, and conflict resolution, to name a few. And, depending on the role they choose, they will come away with some insights to help warring parties find that common ground. Finally, the general reader will find lively stories with memorable moments, as well as a basic education about some of the major resource issues in the West today. In this age of increasing conflict with higher and higher stakes, we all need a heightened awareness and some practical strategies for dealing with what lies ahead.

I am addicted to stories, as you can already see. The next ten chapters describe cases that for me are memorable. Selecting the stories among dozens that I could have told was torture, like choosing among one’s children. Those included here are in chronological order and illustrate a challenge, an insight, or a difficult choice that guided my development as a mediator. They also contain strong personalities, good story lines, and an element of suspense. I let the stories speak for themselves, sometimes identifying themes but generally leaving the reader to absorb whatever lesson emerges. Chapter 4, “Sheep in the Wilderness,” I see as a kind of centerpiece for the book. It is longer than the others in order to tell a particularly compelling and complex story that was critical in my early years as a mediator. Chapter 12, the conclusion, pulls together the lessons and reflections in a more coherent format.

A mediator must be able to keep the confidences of the parties in the conflict. I have been careful to change names in most of the cases, retaining real names only with permission. In some of the cases there was a co-mediator for some of the time. For the sake of simplicity, I have usually not included these colleagues in the stories, but their contributions to my evolution as a mediator have been great.

I identify myself as an environmental mediator, and most of my work involves the use and management of natural resources. But, like many who work in the multiparty, multi-issue arena, I take other cases as well. Chapters 3, 9, and 11 deal with national public policy relating to tribal education and sovereignty.

I use the terms “mediator” and “facilitator” throughout the book. Generally, a mediator helps resolve a specific dispute, while a facilitator may manage a variety of processes, including public meetings, workshops, and dialogues that may have other goals, such as sharing information or drafting a work plan. For me the two functions are so closely linked that I often make no distinction. Both involve helping people communicate to move forward to a common goal.

Finally, a word about what mediation is and does. The standard definition of a mediator is a neutral person who helps those in conflict find their own solution. This is based on the assumption that those who are embroiled in the conflict know it best and therefore know where the opportunities for resolution are. Although it is sometimes very tempting, the mediator will not make a decision for the parties, no matter how stuck they get. If mediation does not produce a resolution, the parties can turn to arbitration or the courts or duke it out in the press or the next election.

But I like my colleague Peter Adler’s definition of mediation best. He says that what he does is simply help people tell their stories to each other. Once the table is set, the ground rules are in place, and parties take their seats, the mediator’s job, he says, is to help people express themselves honestly and to ensure that others are genuinely listening. Of course, the table conversation can be quite complex. In this book you will find conflicts involving water rights, toxic waste disposal, Indian education, ranching, reservoir management, and more, with solutions that are complicated and costly. They may involve changes in legislation or regulation, the siting of major facilities, the protection or development of significant resources. But I believe there is an important truth here and that Peter is right: it is all about the story. I invite you to read on and see for yourself.

CHAPTER TWO

Encountering Hostile Turf

I began my mediation career with Western Network, a non-profit founded by my colleague and friend John Folk-Williams in the late 1980s. John and I were committed to working in our own backyard, albeit a backyard neither of us had known for more than a few years. We saw that northern New Mexico, a region rich in tradition and culture, was under great stress and hoped we could help. There were conflicts over land and water resources, against a backdrop of cross-cultural tension and a high rate of poverty. What was needed, we concluded, was a way to bring communities, interest groups, and government agencies together to resolve some of these disputes. The communities were primarily Hispanic or Indian, the interest groups environmental or business, and the agencies state or federal. Most of our funding came from private foundations, in the East and Midwest, that shared our vision of a more cooperative and equitable way of making decisions in poor rural areas. Writing proposals was a chore, but the payoff—quite literally—was worth it, and we were happy not to have to charge our “clients” for our services.

But foundation funding had a downside that took us several years to understand. This chapter follows that painful but rewarding journey as we learned about unintended consequences, accountability, and trust.

In the winter of 1987, I saw an announcement about a meeting that intrigued me. The convener was a Hispanic community organizer and friend who said I could come as an observer. The purpose of the meeting, he said, was to organize New Mexico’s small irrigators to defeat an in-stream flow bill that env...

Table of contents

• Cover
• About Island Press
• Title Page
• Copyright
• Dedication
• Contents
• Preface
• Acknowledgments
• Chapter 1. Introduction
• Chapter 2. Encountering Hostile Turf
• Chapter 3. The Power of Story
• Chapter 4. Sheep in the Wilderness
• Chapter 5. Finding Common Ground
• Chapter 6. The Army Corps Takes Orders
• Chapter 7. A Rugged Road
• Chapter 8. So Close to Consensus
• Chapter 9. When the Past Won’t Go Away
• Chapter 10. When Cookies Aren’t Enough
• Chapter 11. Tribes Take the Lead
• Chapter 12. Conclusion
• About the Author
• Index
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