Water rights battle likely a long one

Lawsuit claims tribal rights pre-date and supersede any water rights claimed by state officials

OKLAHOMA CITY (AP) – Simmering conflicts between the state and leaders of the Choctaw and Chickasaw Nations over water rights in Oklahoma’s fertile southeastern corner will begin a new chapter when the state goes to court to determine the extent of the tribes’ water rights – a legal battle that has taken years to resolve in other states with similar tribal disputes.
The litigation, authorized last month by the Oklahoma Water Resources Board, is a response to a separate lawsuit filed by the tribes in U.S. District Court in August that claims tribal rights and regulatory authority over water in the historic territories of the Choctaw and Chickasaw Nations pre-date and supersede any water rights claimed by state officials.
The competing lawsuits complicate the state’s efforts to develop and implement a statewide comprehensive water plan and could delay efforts by Oklahoma City officials to tap into new sources of water in southeastern Oklahoma. The region’s Atoka pipeline has transported water to the city and surrounding areas in central Oklahoma for almost 50 years.
“It’s a wrench,” said Jim Couch, Oklahoma City’s city manager. “It’s a hard issue. It’s very complicated. I don’t see immediate solutions.”
The legal disputes will also delay efforts by rapidly growing areas of North Texas to negotiate the sale of any surplus water from southeastern Oklahoma. Jim Oliver, general manager of the Tarrant Regional Water District that serves the Fort Worth and Arlington areas, said the district is still interested in negotiating a deal for southeastern Oklahoma water.
“The door remains open,” Oliver said in a statement.
Attorney General Scott Pruitt’s office is preparing a lawsuit that will ask a state court to determine the tribes’ rights to water in their historic territories. Oklahoma Solicitor General Patrick Wyrick has said the suit will be filed by Feb. 1 and that the state will seek a stay of the federal lawsuit while the state case is pending.
But similar tribal water rights lawsuits in other states have taken decades to resolve. In 2010, officials in New Mexico settled a lawsuit involving more than 2,500 defendants that was filed in 1966 to resolve water rights issues among four Indian pueblos and non-Indian residents in northern Santa Fe County.
“As they say in the west, whiskey is for drinking and water is for fighting,” said David LaFrance, executive director of the Denver-based American Water Works Association. “Water is such an important part of our communities and our economy.”
Tribal water rights adjudications are “very cumbersome” cases to litigate, said Michael Burrage, lead attorney for the Choctaw and Chickasaw Nations.
“Lasts for years and years and years,” Burrage said.
Two years ago, the OWRB agreed to transfer to Oklahoma City the state’s water storage contract for southeastern Oklahoma’s Sardis Lake in the historic territories of each of the tribes, a decision that was opposed by tribal leaders. The tribes’ lawsuit asks a federal judge to stop the board from selling its rights to the lake without an agreement with the tribe.
Burrage said the lawsuit is the culmination of years of unsuccessful efforts by tribal leaders to have state officials recognize their sovereignty and negotiate with them.
“Water is a very important resource,” Burrage said. “The Choctaw Nation and Chickasaw Nation do want a seat at the table on such an important issue.”
He said the tribes want to assure a sustainable water supply in their treaty areas and properly maintain the region’s rivers, streams and lakes. The tribes claim that an 1830 treaty gives them authority over water resources in their jurisdictions but that they have been excluded in negotiations.
“It’s important that the Nations have the natural resources for the treaty territories,” Burrage said.
A mediator appointed to the federal lawsuit, Duke University law professor Francis McGovern, has met with state and tribal leaders twice this month and more meetings are planned within the next 30 days, according to court records. Burrage said federal court rules prohibited him from discussing the status of the mediation process.
As the state and tribes exchange legal barbs, the tribes have mounted a public relations media campaign that focuses on their goals for the region.
Videos produced by the Choctaw Nation that have been broadcast in the Oklahoma City area emphasis southeastern Oklahoma’s environment and the need to protect its habitat for the benefit of the region’s wildlife and residents.
“Water conservation is a top priority for the Choctaw Nation,” Choctaw Chief Greg Pyle says in one video.
Another video focuses specifically on Sardis Lake and stresses the need for a long-term comprehensive water plan that protects the lake and southeastern Oklahoma.
“Its crystal waters are a real blessing to our local economy,” Gary Batton, assistant tribal chief, says on the video.
“We can’t afford to lose this treasure,” says Brian McClain, executive director of the tribe.
Judy Allen, executive director of public relations for the Choctaw Nation, said the videos were designed to showcase the region’s natural beauty and the tribe’s concern that it be preserved.
“I think the general intent is just to educate people that there is just a beautiful jewel of a lake in southeast Oklahoma that is Sardis Lake,” Allen said.
Allen said tribal leaders oppose transferring additional water from the region until its impact is thoroughly studied.
The tribes have entered an agreement with the U.S. Army Corps of Engineers to conduct a regional water plan to assess the water resources of their treaty territory, an area that covers 22 counties in southeastern and south central Oklahoma. The first phase of the $180,000 study is expected to be completed this summer.