Water management systems in the western United States prioritize historical economic uses of water, but are being tasked with addressing growing populations, unmet ecosystem needs, and climatic changes. Collaborative governance scholars posit that collaborative processes generate solutions better suited to resolving wicked natural resource problems than traditional regulatory approaches. However, scholars dispute how collaboration and regulatory enforcement in the form of litigation interact: does litigation destroy collaborative efforts or does litigation facilitate collaboration? In the Upper Deschutes River Basin in central Oregon, stakeholders engaged two collaborative processes to lay the foundation for a new water management regime. However, a participant in these processes was concerned that they were not progressing and filed a lawsuit under the Endangered Species Act. This research finds that litigation, strategically applied under specific conditions, can facilitate collaboration.
Across the western United States, existing water management structures established under the prior appropriation doctrine are being tasked with adapting to new challenges. Concerns over rapid population growth, shifting societal values, environmental quality, species survival, and climate change are all creating new demands and pressures for scarce, and in most cases, already over-allocated water, the vast majority of which is controlled by agriculture [1–6]. Conflict is inevitably created as management structures try to adapt to this complex or “wicked” problem: wicked problems resist simple, permanent solutions, affect a multiplicity of issue areas and policy jurisdictions, and have causes and effects that are difficult to define [7, 8].
In fact, many scholars now argue that collaborative governance institutions and processes can better generate the kinds of innovative and flexible solutions best suited to resolving wicked natural resource problems than traditional regulatory or litigious approaches [8–10]. In wicked problem settings, collaborative processes are believed to reduce conflict among stakeholders, address competing needs in tandem, and increase open dialogue leading to more innovative and flexible solutions [10–13].1 These elements are perceived as necessary to address the complexity and interdependence inherent in wicked problems and to manage them successfully in the long term .
While there is widespread support for using collaborative governance to solve wicked problems, some scholars argue that litigation, as a form of regulatory enforcement, that is, litigation arising out of citizen suit mechanisms in environmental laws such as the Endangered Species Act (ESA), can be used to facilitate environmental collaboration [6, 10, 16–19]. These scholars argue that the power asymmetries that often occur in environmental collaboratives favor established interests such as water rights holders and leave environmental interests with little power, which leads to mistrust between the powerful and weak and reduces commitment to the collaborative on both sides: the powerful have little incentive to commit to the collaborative because they can achieve their goals unilaterally or within the collaborative they may use their power to ensure that the outcome reflects the status quo, whereas the weak believe there is little chance that the collaborative will produce meaningful results for their interests and thus they may seek another more favorable venue to achieve their goals [18–20]. Thus, for the powerful, litigation highlights the threat of conflictual alternatives with higher transaction costs, less control, and potentially worse outcomes reminding them of the benefits of collaboration and increasing their incentives to make meaningful change from the status quo within the collaborative, and for the weaker players, litigation offers a legally binding assurance mechanism that their goals will be met within the collaborative [6, 10, 12, 17–19, 21, 22].
The general lessons from the collaborative governance literature, however, strongly suggest that if litigation, as a zero sum conflict-based approach, is thrown into the midst of a collaborative process, it will most likely result in the collapse of collaboration given its propensity to destroy the trust-based relationships and credible commitment needed to produce the expected positive sum (win-win-win) outcomes [12, 23]. However, these conflicting propositions have not received the empirical attention and testing they deserve. Does litigation filed by a collaborative governance participant destroy or otherwise severely hamper collaborative governance efforts or can litigation serve as a mechanism to facilitate collaboration?
We conducted a qualitative case study of the Upper Deschutes River Basin in central Oregon to address this question. Our results aim to provide new insights for policymakers, stakeholders, and scholars grappling with how best to resolve wicked environmental problems, with a particular emphasis on water management. The article briefly discusses research methods and the study site and then provides a discussion leading to the main finding: under certain conditions litigation in the midst of collaborative processes can help to facilitate collaboration instead of destroying it.
This research relies on data from 21 semi-structured interviews, primary and secondary documents, and participant observation of two public basin study meetings. The interviews were completed in the Upper Deschutes River Basin in 2016 with key participants involved in the Oregon spotted frog litigation filed under the ESA and in two collaborative processes, the Upper Deschutes River Basin Study and the Deschutes Basin Habitat Conservation Plan. Interviewees were purposively selected to hear from representatives of all the key stakeholder groups involved in the litigation and two collaborative processes: local governments, state and federal agencies, environmental organizations, irrigation districts, and the Confederated Tribes of Warm Springs.2 Interviews were conducted with all stakeholder groups until saturation was reached . All interviews were recorded, then de-identified, transcribed, and qualitatively coded for major themes. Prior to coding, a codebook was developed with clearly operationalized and defined codes to ensure consistency in the coding process . The observations and documents were also coded to triangulate the interview findings.
Fighting to Cooperate in the Upper Deschutes River Basin
The Upper Deschutes River Basin is a prime example of a community attempting to address the changing context of water management in the U.S. West. Surface water in the Upper Deschutes River Basin has been almost fully allocated since the early 1900s, with 90% of the water rights dedicated to agricultural use, the majority of which are controlled by the eight major irrigation districts in the basin [25–26].3,4 However, the basin is facing new demands for water from growing populations, unaddressed species and ecosystem needs, as well as climatic changes.
The basin’s population growth has averaged 44% over the last half century and is expected to double to 415,000 by year 2065 [25, 28]. The growth has exponentially increased demands for municipal, recreational, and environmental water .
The managed ebb and flow of the Upper Deschutes River according to irrigation needs fails to mimic the historical natural flow regime, the “master variable” for river system health, of 600–700 cubic feet per second (cfs) throughout the year [29, 30]. Instead, winter flows regularly drop as low as 20 cfs and summer flows rise as high as 1,500 cfs [31–32].5 Downstream, water withdrawals for agriculture decrease summer streamflow in the Middle Deschutes River, and many of its tributaries, to roughly 10% of the natural flow .
Climate change is forecast to reduce precipitation in the basin and alter the timing of supply for some streams in the basin .
Overall, the forecast through 2050 is an average annual unmet water demand of 230,000 acre-feet for agriculture, instream flow, and municipal needs each year .
Two collaborative processes emerged in the basin to try to address these issues. In 2014, the U.S. Bureau of Reclamation (BOR) and the Basin Study Work Group initiated the Upper Deschutes River Basin Study (hereinafter called “basin study”) as a collaborative, consensus-based effort to craft a water management plan to meet the diverse water needs through 2050 . The study will develop multiple water management scenarios in the hope that the scenarios will serve as the foundation for a water management agreement in the basin. Key participants include irrigation districts, state and federal agencies, local government entities, environmental organizations, and the Confederated Tribes of Warm Springs.
The second collaborative process is the Deschutes Basin Habitat Conservation Plan (DBHCP). In 2008, the Deschutes Basin Board of Control, an association of the eight major irrigation districts in the basin, and the City of Prineville began to develop the DBHCP for their water management actions in the Upper Deschutes River Basin. A habitat conservation plan is a voluntary collaborative process to attain an incidental take permit (ITP) under the ESA: an ITP protects applicants from liability for “taking,” essentially harming or killing threatened or endangered species under the ESA, as long applicants adhere to the terms of their HCP.6 The DBHCP is a multi-species plan aimed at adjusting water management to address the needs of several candidate and listed species including the Oregon spotted frog . In addition to collaboration between the applicants, the DBHCP is also being crafted with participation from additional stakeholders, including state and federal agencies, Portland General Electric, environmental organizations, and the Confederated Tribes of Warm Springs, many of whom are also involved in the basin study . While the basin study and DBHCP are separate, independent processes, the basin study plans to incorporate the stipulations of the DBHCP, once completed, into the water management scenarios.
Conditions Catalyzing Litigation
Prior to the Oregon spotted frog litigation, the basin study and DBHCP struggled to produce genuine collaboration despite the involvement of a diversity of stakeholders. Stakeholders pointed to the significant power imbalance favoring irrigation districts in the basin study process, given their majority control of water rights :
[I]f you’re talking about restoring flows … you’ve got to get it from irrigation districts…. [I]rrigation has the upper hand because [of]…, prior appropriation, [and] until you change that … irrigation [has all the power]. (Interviewee 14, irrigation district)
Stakeholders viewed the power imbalance as even more pronounced in the DBHCP process because it was “owned” (i.e., controlled) by the applicants—the irrigation districts and the City of Prineville. For many, this position translated into a lack of good faith collaboration with the larger stakeholder group:
It’s [the applicants’] process … I don’t know that there was any great collaboration really ever going on in the DBHCP process. It was highly controlled by … how the [irrigation] districts wanted to run the process. (Interviewee 16, environmental organization)
At the same time, the environmental interests were perceived to have the least power and assurance that their interests would be met through the collaborative processes:
[Environmentalists were] going with their tin cup to those who own the water and saying, “Will you do a project with us and we’ll help you and we’ll bring some money and we’ll get some water instream?” (Interviewee 16, environmental organization)
The majority of interviewees, including those from irrigation districts, also connected this power imbalance to a general lack of credible commitment to collaboration and changing the water management status quo in order to protect species by the irrigation districts in the DBHCP, which was the DBHCP’s primary objective. Further, almost half of a correspondingly broad, representative group of stakeholders for the basin study process said the same about it [41, 42].
I’ve heard [an irrigation district manager] … at a public meeting down at Sun River say that “Yeah the districts could justly be accused of stonewalling … towards restoring the basin period.” (Interviewee 5, environmental organization)
The general consensus was the [irrigation] districts were dragging their feet and not doing enough. (Interviewee 4, irrigation district)
The power imbalance and perceived lack of credible commitment to collaboration or change also contributed to high levels of distrust between the irrigation districts and environmental interests in both cases:
We’re so guarded with our water because you know everybody’s trying to take it away from us … So we’ve played it pretty close to the vest and … [are] not very trusting because we have everything to lose…. It’s guarded cooperation. Everybody’s got their own agenda. (Interviewee 14, irrigation district)
The lack of progress toward consensus outcomes as well as concern that further delays would allow the irrigation districts’ existing water management practices to cause further take of the threatened Oregon spotted frog led WaterWatch of Oregon—a water conservation organization and participant in both collaborative processes—to file suit in January 2016 under the ESA against other participants in the collaborative processes, including BOR, the Central Oregon Irrigation District, the North Unit Irrigation District, and the Tumalo Irrigation District.7 The lawsuit sought to force the defendants to adjust their reservoir management to provide a more natural flow regime on the Upper Deschutes River to protect the Oregon spotted frog.8
The Effects of Litigation: Helpful or Harmful to Collaboration?
According to stakeholders, the litigation had clear effects on both collaborative processes by rebalancing the power equation inside the collaboratives. The litigation raised the risks of not collaborating for the irrigation districts, prompting them to strengthen their commitment to both collaborative processes and to changing the existing water management regime. The litigation also served as an assurance mechanism for the weaker stakeholders, the environmental interests.
First, the litigation reminded the irrigation districts that despite their power there were significant risks from not collaborating. The majority of interviewees from all stakeholder groups believed that this led them to increase their commitment to collaboration and the overarching collaborative goal of water management regime change. The key risks included:
the uncertainty and fear caused by the potential of future enforcement of species take liability under the ESA (Interviewee 3, agency; Interviewee 13, agency);
loss of control and having the courts impose a policy solution, compared to greater leverage and control via collaboration (Interviewee 19, environmental organization; Interviewee 20, local government).
The increased commitments to collaboration and change were supported by empirical examples . The litigation led the irrigation districts to make several flow regime changes: the districts committed to leaving 100 cfs in the Upper Deschutes River below Wickiup Reservoir during the winter even at immediate cost to their water supply and provided an earlier spring release of water to help with Oregon spotted frog reproduction. The districts also began discussing plans for providing even more instream flow in order to achieve the collaborative processes’ ultimate goals:
I think it [the litigation] incentivized the irrigation districts to think a little bigger and broader [about] what the system is actually capable of and how we’re going to get there…. Now they’re even talking, “Well, 300 [cfs] someday below Wickiup Reservoir. That’s possible.” (Interviewee 12, agency)
Second, the litigation served as an assurance mechanism for the weaker stakeholders, the environmental interests. A number of stakeholders stated that the true purpose of the litigation was to help environmental interests make progress toward restoring flows to the Upper Deschutes River, their primary goal in the collaborative processes [41, 46]. Further, the litigation strengthened the environmental interests’ negotiating position by increasing the probability that meaningful environmental protections—species protection and restoration of streamflows to more ecologically sound levels—would be part of any final collaborative bargain. In short:
The environmentalists now have a real say. The power is a little bit more equal because the ESA pretty much trumps everything … It made the districts realize that they need the environmental community to support what they are doing. (Interviewee 9, environmental organization)
Third, despite the evidence that litigation did help to facilitate collaboration in these cases, it also caused some harm. The majority of interviewees agreed that there was diminished open dialogue and creative brainstorming following the litigation. Others stated that the litigation led to reduced involvement of the larger stakeholder group in the DBHCP: only a smaller technical group continued to convene following the litigation. Further, while trust was already low in the collaborative processes prior to the litigation, some stakeholders saw the litigation as dealing another blow to trust, while a few stated that the litigation completely eliminated trust (Interviewee 10, irrigation district; Interviewee 12, agency; Interviewee 17, irrigation district).
Yet, all 21 interviewees stated that despite some negative effects from the litigation the collaborative processes would be able to regroup and successfully move forward toward achieving their primary goals. Furthermore, a majority of stakeholders, including all individuals interviewed from irrigation districts, believe collaboration is still the best way to resolve the Upper Deschutes Basin’s complex water issues [33, 34, 43, 44].
The renewed commitment to collaboration, after the litigation, rested in part on the fact that interviewees from all stakeholder groups perceived collaboration to be more advantageous than a mandated, top-down regulatory process because it offers a forum in which stakeholders can share information to understand the many pieces of the problem and learn about others’ perspectives and thus, craft a more sophisticated, nuanced, and creative solution required to resolve the complex water management problems in the basin [33, 34, 40, 43, 44, 47]. As noted by one stakeholder:
[A] sophisticated, balanced solution will not come out of [the litigation]…. [W]hatever it is will be inadequate from everybody’s point of view…. It’s only a sophisticated [collaboration-based] solution that protects the broader community interests and the farming communities and others, and if it were easy we would have done it already. (Interviewee 16, environmental organization)
Stakeholders in Oregon’s Upper Deschutes River Basin are employing collaborative processes to adjust water management in order to meet agricultural water needs and new pressures from growing and changing populations, unaddressed species and ecosystem needs, and climate change. The record shows that prior to the litigation filed by WaterWatch, there was a perceived power imbalance between the irrigation districts and environmental interests, distrust between these two key parties, and a general lack of commitment by irrigation districts to changing the water resource management status quo. The evidence also demonstrates that litigation helped to facilitate collaboration by increasing incentives for the powerful to commit to changing the status quo and creating assurance for the environmental interests that their objectives will be met. Thus, the first takeaway is that litigation strategically applied under the specific conditions of a significant power imbalance and the lack of credible commitment to collaboration by these same dominant stakeholders can boost collaboration.
Second, this research provides a corrective to the broad claims by Weber (1998) , Ansell and Gash (2007) , and others, that litigation is highly likely to destroy the elements needed for successful collaboration. In fact, even after litigation, stakeholders expressed strong support for continued collaboration as the preferred mechanism for achieving a viable, effective, long-term solution to the basin’s complex water management problems. It interesting that the stakeholders, as the practitioners on-the-ground who are responsible for making the hard management decisions in their basin, agree with a growing number of scholars that collaboration is essential to managing complex wicked problems successfully [8–10].
Finally, this research suggests that successful problem solving in wicked problem settings may not be a zero sum, either collaboration or litigation approach. Instead, this case provides evidence that the unlikely combination of collaboration and litigation gives stakeholders the tools they need to deal effectively with the wicked natural resource problems society faces today [6, 10, 16–19]. The findings of this case also indicate value in continuing to explore this relationship. Specifically, scholars may want to further examine the concept of trust in collaborative governance: it may be that trust in process, not people, allows collaboratives to continue to function following litigation.
CASE STUDY QUESTIONS
What are the arguments supporting the use of collaborative governance institutions and processes for the resolution and management of wicked natural resource problems?
Outline the basic dispute between scholars and practitioners over the relationship between collaborative processes and the use of litigation for resolving complex public problems. Which side, according to this case study, has the better argument?
Why did environmentalists pursue a lawsuit under the auspices of the federal Endangered Species Act of 1973? Would you have done the same? Why or why not?
What were the overall effects from litigation in this case? Was it helpful or harmful to the collaborative processes?
What were the risks of not collaborating for the irrigation districts?
What are the primary lessons from this case study for our understanding of how we might effectively manage wicked natural resource problems?
Hannah Satein: conceptualization, formal analysis, investigation, methodology, validation, writing-original draft, writing-review, and editing. Edward Weber: conceptualization, methodology, supervision, writing-original draft, writing-review, and editing
The authors have declared that no competing interests exist.