MuskogeePhoenix.com, Muskogee, OK

Oklahoma News

July 8, 2013

State, tribes in negotiations over water lawsuits

Cases on hold while talks proceed

— OKLAHOMA CITY (AP) — After years of legal wrangling, the state of Oklahoma blocked a legal challenge by a Texas water district that claimed it had a right under a 30-year-old compact to cross the Red River and take water from Oklahoma to serve the fast-growing Fort Worth area.

But the state’s victory did not end the court fight over water rights in Oklahoma. The state and a pair of Oklahoma-based tribes are still squabbling in federal court over whether the tribes have a legal right to water in their historic territories in southeastern Oklahoma.

The lawsuit filed by the Choctaw and Chickasaw nations in August 2011 and a related water-rights lawsuit filed by the state six months later have been on hold for more than a year in the hope the state and the tribes can settle their differences through negotiation and avoid years of litigation. Although the two sides continue to talk, no one knows when — or if — a resolution will be reached.

“The process is working,” said Michael Burrage, an attorney for the tribes. He said negotiators have met several times since the lawsuits were stayed and another meeting is scheduled July 18-19 in Oklahoma City.

A mediator appointed to the case in December 2011, Duke University law professor Francis E. McGovern, has left the negotiations. Burrage said McGovern “helped us reach a certain point” and was no longer needed.

“At this stage in the process, we think we can work well with each other,” Burrage said. He said he was prohibited from discussing details of the closed negotiations.

The presiding judge in the water rights cases, U.S. District Judge Lee West, has set no deadline for the cases to be resolved and will likely continue to issue stays if all sides request them, Burrage said. The current stay order expires on Sept. 17.

A spokeswoman for Attorney General Scott Pruitt said the state remains committed to the mediation process.

“We’re hopeful that the parties can achieve a resolution to these issues,” said spokeswoman Diane Clay.

Last month, the U.S. Supreme Court unanimously ruled in Oklahoma’s favor in a lawsuit filed in 2007 by the Tarrant Regional Water District in North Texas that sought access to southeastern Oklahoma tributaries of the Red River that separates the two states.

The lawsuit against the Oklahoma Water Resources Board and the Oklahoma Water Conservation Storage Commission challenged the state’s water laws and sought a court order to prevent the board from enforcing them. Lower courts had ruled that the four-state Red River Compact protects Oklahoma’s water statutes from the challenge.

Legislation adopted by the Oklahoma Legislature in 2009 said no out-of-state water permit can prevent Oklahoma from meeting its obligations under compacts with other states. It also requires the Water Resources Board to consider in-state water shortages or needs when considering applications for out-of-state water sales.

But the Texas case is unrelated to the tribal lawsuit filed in U.S. District Court in Oklahoma City that sought an injunction to bar the state and Oklahoma City from transporting water from southeastern Oklahoma to the state’s largest city.

Burrage said at the time the lawsuit was intended to force the state to recognize the tribe’s sovereignty over water in territories covered by treaties with the federal government and to determine how much water is actually in the region to make sure tribal needs are met.

The state responded with a lawsuit of its own in February 2012 that asked the Oklahoma Supreme Court to decide what rights the two tribes actually have to water in the region. Authorized by the Water Resources Board, it sought a comprehensive stream adjudication of tribal water rights in the Kiamichi River and other stream basins. It was eventually transferred to federal court.

Among other things, the tribal lawsuit sought an injunction to stop the board from selling its water storage rights to Sardis Lake in southeastern Oklahoma to the Oklahoma City Water Utility Trust. The trust wants a water-use permit to withdraw water from the reservoir, which is located within the historic territories of each of the tribes.

The Army Corps of Engineers built Sardis Lake, which straddles Latimer and Pushmataha counties, in a region from where Oklahoma City has received water in the past. The tribes allege they have been excluded from negotiations between the board and the trust in spite of the 1830 Treaty of Dancing Rabbit Creek that they claim gives them authority over water resources in their jurisdictions.

State officials maintain that other treaties must also be considered, including one signed by the tribes in 1866 that they claim relinquished tribal rights following the tribes’ revolt against the United States during the Civil War.

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