In treaty talks, whose voices will be heard?

Later this year, the United States and Canada will renegotiate the Columbia River Treaty, and Northwest residents are watching closely.

The 1964 pact guides how four dams along the river system are operated for flood control, and how the United States and Canada split the electricity they help generate. Now, many inhabitants of the 259,000-square-mile basin want a range of other issues, from salmon passage to Canadian-sourced selenium pollution, addressed as well.

Six U.S. negotiators, from the State Department and other federal agencies, will discuss these issues with their Canadian counterparts later this year. With the stakes for basin residents high, State solicited their input in preparations for the talks, and is pledging to stay connected with them and their members of Congress throughout the process.

But the Department could do more to ensure their voices are heard, say some stakeholders along the rivers and experts on the treaty.

One of these experts is Barbara Cosens, a professor at the University of Idaho College of Law who has written extensively on the Columbia River Treaty. She notes that residents lack a presence they had in the original talks: Congressional observers.

Senators from northwest states sat in on the 1960 treaty negotiations. In Cosens’ view, their involvement improved the final product — and could do the same this time.

“Having the Congressional Delegation have observer status really raised the legitimacy of the proceedings,” she said.

Observers, she explained, “have a chance as the negotiations are proceeding to provide input at the State Department. They also have a chance to be a two-way conduit of information from their constituents, so it provides transparency. It provides a chance to raise issues that might not have been discussed before, such as the selenium issue [affecting Lake Koocanusa], it provides the chance for the constituents to stand up and speak out if they don’t like the direction that things are going.”

Under U.S. law, a treaty is forged in two stages. First, negotiators appointed by the executive branch reach an agreement with their foreign counterparts. Then, it’s sent to the Senate, where the Committee on Foreign Relations, and then two-thirds of all Senators, must approve it for ratification.

Over the years, both Congress and presidents have tried to bridge these two steps — and boost a treaty’s odds of success in the Senate — by appointing observers from Congress.

That’s what happened with the original Columbia River Treaty. According to a 2015 report by the Universities Consortium on Columbia River Governance, “members of the Senate Committee on Foreign Relations from the basin,” including Mike Mansfield, D-Mont., Frank Church, D-Idaho, and Wayne Morse, D-Oregon, “participated in an advisory capacity.”

Cosens acknowledged that, because the negotiations were closed to the public, it’s difficult to gauge the effect they had. But “the fact that the original treaty really was tailored very much to the local condition suggests that they had substantial influence and that it followed what they wanted to see happen.”

At the moment, however, the region’s representatives lack that role. According to a State Department spokesperson for Western Hemisphere Affairs, “there are no plans for Senators to be physically present during negotiations.”

The lawmakers and their constituents aren’t walled off from the process entirely.

The same spokesperson added that “members of the U.S. negotiating team will continue to meet with and regularly communicate with members and staff from the Pacific Northwest congressional delegation throughout negotiations.”

In separate statements sent to the Inter Lake, Senators Jon Tester, D-Mont., and Steve Daines, R-Mont., voiced their intent to stay engaged with the process. So did Senators Jim Risch, R-Idaho, and Jeff Merkley, D-Oregon, who both represent Basin states and serve on the Foreign Relations Committee.

Residents, too, have had chances to take part — through public discussions that informed the 2013 Regional Recommendation that will guide negotiators, and in regional town halls that the State Department has said it will hold.

Rep. Mike Cuffe, R-Eureka, attended the first of these meetings, held April 25 in Spokane, Wash. “I was happy with it,” he recalled, explaining that he raised his concerns about river diversion and compensation for Libby Dam’s benefits. “I was assured that the Montana issues are getting serious consideration from the full negotiating team.”

But as Cosens sees it, these forms of engagement can only go so far.

“Because negotiations are a very dynamic process, in which new ideas are coming up and you’re adjusting to them, an occasional public meeting just can’t reflect that complexity and possibility for things that could benefit people in the basin...so you kind of have to be in the room to see that happening.”

She isn’t the only one concerned about who’s in the room. The Basin’s Native American tribes have repeatedly stressed their desire to be involved with the talks.

Rich Janssen, Natural Resources Department Head for the Confederated Salish and Kootenai Tribes, said that “we’ve reached out to our Congressional delegation” on the treaty, although not specifically about the possibility of observers. “It’s our hope, if our Congressional delegation is in fact in the room, that they will listen to tribal concerns.”

With the tribes deeply tied to the basin’s lands and waterways, Janssen voiced hope that “both countries will look at our Regional Recommendation, [which states] that an ecosystem-based function is a consideration along with power and flood control.”

Janssen said that Jill Smail, the State Department’s negotiator for the treaty, had met with the tribes, but that “right now we have not been given any indication that we are going to be part of the renegotiation,” Janssen said.

Like with members of Congress, the State Department’s spokesperson pledged that the agency would stay engaged with indigenous groups, but did not specify any kind of formal role they might have in the negotiations.

DR Michel, executive director of the Idaho- and Washington-based Upper Columbia United Tribes, was blunt in his assessment. “The response from the State Department is basically that, ‘We’ll take care of those issues,’” he said. “They lack the vision to see the tribes’ importance in this process and how we can help.”

The tribes’ absence on the negotiating panel drew criticism at the Spokane meeting last month. As reported by Northwest Public Broadcasting, the State Department’s Smail told attendees that “we thought that the best way to meet our objectives from a foreign policy point of view was to have a focused team.”

The negotiating team’s six members are drawn from the State and Interior Departments, the Army Corps of Engineers, Bonneville Power Administration and the National Oceanic and Atmospheric Administration.

Dates have not yet been set for the future town halls they’ll have in the area, or for the start of negotiations. But those seeking greater input don’t see it as a lost cause.

The University of Idaho’s Cosens believes that observers can still be nominated, and paths to do so may exist. According to a 2001 report by the Congressional Research Service, “Congress took initiatives to assure congressional observers” on several treaty negotiations during the 1990s.

Meanwhile, “we’ll continue to figure out how we can be more involved,” the Upper Columbia United Tribes’ Michel said. “As sovereign nations, we’ll continue to work with the State Department to include the tribes more.”

However these possibilities play out, Michel, the tribes, and other Basin residents are eager for a hand in the talks’ outcome.

“The tribes, for thousands of years lived with the river, [and] know those issues” related to the river’s ecology, he said. “We’ve built the capacity to be an asset in that process.”

Reporter Patrick Reilly can be reached at preilly@dailyinterlake.com, or at 758-4407.