Tales from the Water Wars – The Passing Game

By Deirdre Des Jardins

The State Water Resources Control Board’s WaterFix Water Right Change Petition Hearing took place from July of 2016 to September of 2018. It was the largest water rights hearing in 50 years, involving over 110 parties and over 85 attorneys. I participated in the entire hearing. In addition to testifying on impacts of climate change, operations modeling, and reservoir operations for drought, I played “truth squad,”, doing cross-examination of DWR’s witnesses on key scientific, technical, and regulatory issues. And I helped out friendly experts by asking clarifying cross-examination questions on their testimony.

After the hearing ended for the day, I would go back to where I was staying, eat dinner and rest, and then review the testimony that I was going to do cross-examination on the next day. At times there were only myself and a handful of Delta attorneys doing cross-examination for our side. And I was one of the ones who had the deep scientific background to read the testimony and the supporting documents and ask the right series of questions.

It was hard not to be overwhelmed. At night when I was trying to sleep, I would remember a passage from one of my favorite science fiction books about learning to play Shon’ai, “the Passing Game.”  It involved warriors throwing knives back and forth. And basically that is what was happening in the hearing. To be able to ask my cross-examination questions, I had to learn to catch the knives that DWR’s $1,000 an hour hired gun attorneys threw.

At first DWR’s attorneys did the legal equivalent of beating me up and dumping my bruised body in the parking lot. But I was encouraged by one of the attorneys I was working with to keep going. He said that the special treatment was because of my scientific and technical knowledge. So I would crawl back in to the hearing room and do the next cross-examination. I started learning trial skills from watching the attorneys. And I got better and started holding my own. Then I started winning, clarifying major issues in the hearing in important ways.  I found a fierce joy in it.

From C.J. Cherryh, The Faded Sun: Kesrith

He bestirred himself on his pallet, assumed carefully the position the Niun held, crosslegged, hands on knees. Niun showed him the grip he had on the end of the rod in his right hand.

“You must catch,” said Niun, and spun the rod toward him. Duncan caught it, startled, in his fist, not his fingers, and the butt of it stung his palm.

The second followed, from Niun’s left hand. Duncan caught it and dropped it. Niun held up both hands empty.

“Both at once,” Niun said.

It was difficult. It was exceedingly difficult. Duncan’s work-sore hands were less quick than Niun’s slender fingers, that never missed, that snatched the most awkward throws from midair, and returned them always at the same angle and speed, singly until Duncan could make the difficult catch, and then together.

“We call it shon’ai,” said Niun. “Shonau is pass. In your language, then, the Passing game …

There was a chant to the Game, and a rhythm of hands that made it yet more difficult to make the catch. Duncan learned it, and it ran through his brain even, at the edge of sleep, numbing, possessing his whole mind; for the first time in uncounted nights he slept deeply, and in the morning he ate more than he had been able.

On the sixth day by that star, they played a more rapid game, and Duncan suffered a bone-bruise from a hit, and learned that Niun would not hold his hand with him any longer.

Twice more he was hit, once missing by nervousness and the second time by anger. Niun returned a cast with more skill than he could manage when he had thrown the Mri a foul throw in temper for the first hit. Duncan absorbed the pain and learned that to lose concentration from fear or from anger was to suffer worse pain, and to lose the game. He cleared his mind, and played in earnest at shon’ai, still with wands, and not yet as the Kel played, with edged steel

“Why,” he asked Niun, when he had words enough to ask, “do you play to harm your brothers?”

“One plays shon’ai,” said Niun, “to deserve to live, to feel the mind of the People. One throws. One receives. We play to deserve to live. We cast. Hands empty, we wait. And we learn to be strong.”

There was a threshold of fear in the Game, the sure knowledge that there was a danger, that there was no mercy. One could be secure in it a time, while the pace stayed within the limits of one’s skill, and then one realized that it was in earnest, and that the pace was increasing. Fear struck, and nerves failed, and the Game was lost, in pain.

Play, Niun advised him, to deserve to live. Throw your life, kel’en, and catch it in your hands.

He understood, and therein another understanding came to him, how the Mri could take great joy in such a game.