Two thick, orange, bound books sit on a library table at Colorado State University.
“This is the original compilation,” said Patty Rettig, a water resources archivist at the university. She’s the keeper of the detailed records of another time when states were fighting over how to share the Colorado River.
“You can see here, this is the first 18 sessions, and then we have another volume,” she said, pointing to the second book.
These hundreds of pages hold the transcripts of the 27 meetings that led to the Colorado River Compact in 1922. They provide an important window into the rooms where Western water was divided up.
The verbatim minutes reveal which officials were present – almost always the commissioners from the seven Colorado River states and the federally-appointed chairman Herbert Hoover, and often a handful of state engineers or other leaders. They also document when states disagreed and how, over more than a dozen meetings in Santa Fe in November, they eventually hammered out an agreement.
“In the end, they get to some word-smithing,” said Rettig. “Thankfully, we do have detailed meeting minutes. We can see what concepts they were discussing.”
Aside from a series of public meetings around the West, the negotiators mostly met in private. But a century later, a public record of how they deliberated over the future of the Colorado River is preserved.
Flash forward to today: for the last three years, the seven states have been negotiating a new set of rules for sharing a dwindling supply of water before current ones expire in December. But the public has had little view inside the negotiating rooms.
John Berggren with the nonprofit Western Resource Advocates said the states would meet virtually or around conference tables in various Western cities.
“But there’s no announcement; there's no meeting agenda. There's no minutes that are read out from those meetings,” he said. “The only way you even know they're happening is you have to know someone who's there.”
The seven negotiators serve as the governors’ representatives on Colorado River matters and they’re not elected officials. But they play a vital public role in managing a shared resource that 40 million people rely on for drinking water, agriculture, energy, recreation and more.
KUNC requested work calendars for the seven negotiators earlier this year. The information wasn’t always easy to find. Some states – Arizona, New Mexico and Utah – were either not responsive to the requests or their state offices said they didn’t hold the records. Colorado would have charged about $280 for the documents.
California, Nevada and Wyoming responded to the requests. The schedules of those state principals show frequent negotiating meetings, especially in the lead up to a Valentine’s Day deadline to come up with a plan, and in the weeks after that deadline was missed. There were meetings with just the seven principals, several including federal officials from the Bureau of Reclamation, separate meetings for the upper basin and lower basin and huddles of smaller state pairings.
States have said this closed-door process is needed to reach a deal — and it’s worked in the past. But this time, it hasn’t. The tension has only grown. In the absence of an agreement, the federal government has stepped in with its own plan and the state of Nevada has filed a lawsuit.
After following river negotiations as a reporter and now as a researcher at the University of New Mexico, John Fleck has come to appreciate that private spaces are sometimes needed to work out these thorny issues. Some important talks have happened in hallways or hotel bars. But the lack of a state agreement this time around has changed his perspective.
"These people have lost my trust,” he said. “I no longer trust that behind those closed doors they are doing the kind of difficult discussions that need to happen. Instead, we seem to have reached a point now where the lack of transparency provides cover for hiding the accountability for the failures.”
He wants “messy, public conversations.”
Berggren, who studied the topic of transparency in the Colorado River negotiations for his PhD thesis, said completely opening the door to the public would be a “nightmare.” He thinks private space for frank talks is still needed, especially given the complexity and tense nature of the subject. Still, he thinks states should share more with the public about what’s keeping them apart now, beyond usual talking points.
“If more of the public knew what the seven states were doing, in terms of not reaching an agreement and the risk of going to the Supreme Court, I think more people would be upset,” he said. “Like, ‘Hey, my state is not doing everything they can to get to that seven state solution.’”
Plus, the process can leave out some important voices, like the 30 tribes that rely on the river. Back in 1922, the compact talks completely excluded them. At a University of Colorado Boulder conference this summer, Amelia Flores, the chairwoman of the Colorado River Indian Tribes, said the inclusion of tribal nations has improved.
For example, an agreement between six upper basin tribes and the Upper Colorado River Commission stipulates regular meetings and California’s governor appointed a tribal elected leader to its Colorado River Board.
But Flores said tribes are still not always treated as “true partners.”
“Make no mistakes, the failure to fully engage tribal nations in this process, leaving us to react to the decisions made by others, is a threat to our inherent sovereignty and to our very existence,” she said.
State level negotiators say they represent a wide range of constituents, and they go through different processes, depending on the state, to report back to stakeholders.
Becky Mitchell, Colorado’s river negotiator, told KUNC earlier this year that there are also challenges in explaining publicly all of the finer details of the negotiations.
"It's not just one issue,” she said. “It’s how we move forward things as a package, and so we're trying to be aware of that and not impede the ability for later progress.”
Jim Lochhead has been in her shoes as Colorado's negotiator through the early 2000s. He also agreed that there are good reasons for closed-door negotiations among states.
“The negotiators need to be free to float ideas, to maybe reach tentative agreements on certain elements of the overall negotiation, to be able to have open communications, and that requires confidentiality and a closed door,” he said.
But he thinks the negotiations have recently gotten too politicized and said the balance between confidentiality and transparency is off. He said the states need a reset and to focus on their shared interest in managing a shrinking river – whenever those talks may resume.
Scott Franz contributed reporting.
