The plaintiffs in a water rights dispute appear to be ready to pursue their claims in state court despite a recent setback at the federal level.

Tulsa lawyer Steve Harris, whose clients are challenging the Grand River Dam Authority’s right to assess fees for raw water drawn from Fort Gibson Lake, said the rural water districts he represents must get board approval before he refiles the lawsuit.

The board of one of the four rural water districts Harris represents already has approved further action. Harris said he anticipates the governing boards of the other Wagoner and Cherokee county districts will follow suit.

“Essentially we will be adjudicating the same issues raised in the federal complaint,” Harris said. “Each board will have to meet and vote to proceed. But judging from the response I heard from those who attended our recent meeting, I expect to receive approval from everybody involved.”

Harris’ original complaint was filed in late 2007 in the U.S. District Court of Northern Oklahoma by Wagoner County Rural Water Districts 2, 7 and 9 and Cherokee County Rural Water District 11, Peggs Water Co., and Tri-B Nursery.

The lawsuit seeks to prevent GRDA from selling water from Fort Gibson Lake, a U.S. Army Corps of Engineers-built lake located on the Grand River in northeast Oklahoma. Plaintiffs are also seeking restitution from GRDA for past water sales.

GRDA, which along with the Oklahoma Water Resources Board was dismissed as a defendant in the federal lawsuit after a judge ruled the state agency was immune to being sued in federal court, claims it has jurisdiction over all the waters in the Grand River, not just those impounded by dams it built at Grand Lake and Hudson.

Harris, citing a U.S. Supreme Court case decided in 1960, disputes that claim. That opinion, Harris said, held GRDA possesses no vested property rights to the waters of the Grand River.

Kevin Easley, GRDA’s chief executive officer, reasserted the agency’s jurisdiction of the waters of the Grand River when it was dismissed from the federal lawsuit.

Research into the question of who owns Grand River water rights, Harris said, shows laws predating 1981 provided an exemption for municipalities from paying for water drawn from the Grand River. Changes made to the law lack information regarding the legislative intent of later amendments.

Gene Whatley, executive director of the Oklahoma Rural Water Association, said it may be wise for the Legislature to revisit that issue and expand the language to include exemptions for rural water districts. Whatley said lawmakers he has talked to suggested it may be wise to wait until the issue is litigated in court.

“We don’t disagree with paying for storage rights or for any costs associated with that,” Whatley said. “But what we need to know is whether GRDA really has control over the water in Fort Gibson Lake.”

That issue, Harris said, is one he hopes still will be adjudicated in federal court in tandem with the action he plans to file during the coming weeks in Craig County, which is proper venue for actions filed against GRDA.

The federal lawsuit also names as defendants the United States of America, the Federal Energy Regulatory Commission, the U.S. Army Corps of Engineers and the Cherokee Nation. These defendants were named, Harris said, so the court could sort out any ownership rights those entities may assert to the water impounded by Fort Gibson Lake and any of its tributaries.

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