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Deep water


Regional disputes over water rights lead to state and federal lawsuits.

Clifton Adcock December 21st, 2011

The battle pitting the state and Oklahoma City against two American Indian tribes and a number of southeastern Oklahoma residents might soon take an unprecedented turn in state legal history.

The Oklahoma Water Resources Board voted Dec. 13 to allow the board’s attorney to file state lawsuits to determine all water rights in the Kiamichi River, Clear Boggy Creek and Muddy Boggy Creek stream systems.

The move comes after the Chickasaw and Choctaw nations filed a federal suit to keep the OWRB, city of Oklahoma City and state officials from moving that water to Central Oklahoma.

Although suits to adjudicate water rights are not uncommon in many Western states, it likely would be the first time for such a case to arise in Oklahoma. Oklahoma City officials applauded the OWRB decision, while tribal leaders warned that such action would result in a protracted “generational” fight.

The water in southeastern Oklahoma has been a wellspring of contention between that area’s landowners and Indian tribes and Oklahoma City, which hopes to draw water from Sardis Lake (pictured) — part of the Kiamichi River stream system — to keep up with projected population increases.

No public comment
Much of the OWRB discussion over the plan to file the lawsuits occurred in closed executive session. Despite protests from landowners in attendance, some of whom had traveled upwards of 200 miles to speak on the matter, the board did not allow public comment.

The residents said they were suspicious the OWRB was out to further the interests of Oklahoma City, rather than acting as a neutral third-party arbitrator for all citizens in the state. Some expressed concern that the move by the board could be a way to strip their nonconsumptive water rights.

“If they can ignore the non-consumptive water uses, the riparian rights, then that leaves more to pull from the basin,” said Charlette Hearne, president of Oklahomans for Responsible Water Policy, which opposes the water transfer.

Some said they were worried that pulling water from southeastern Oklahoma would devastate the economy and tax rolls.

“They’re just railroading it,” said Pushmataha County Commissioner Jim Long. “What they’re doing is legal, but it’s not very ethical. I wouldn’t do it to my constituents, just cram something down their throats.”

OWRB Executive Director J.D. Strong said public discussion was left out of the process because the lawsuit is a reaction to the tribes’ suit.

According to a fact sheet circulated by the state Attorney General’s office, the tribes claim in their lawsuit that they have 100 percent of the water rights in their respective areas, and that the OWRB has no right to issue permits without a comprehensive stream adjudication.

“In response to these claims, the OWRB intends to vigorously defend its right to regulate the waters in the basins, and will defend the validity of state law governing water rights, so that those with valid rights retain those rights,” the fact sheet read.

The document also stated that landowners who receive a notice from the OWRB do not need to hire an attorney and that the agency’s actions will not strip valid water rights from people who have them.

Questionable jurisdiction
The state’s plan to file suits to determine water rights hinges on a federal statute informally known as the McCarran Amendment, a method for determining water rights in state court.

Almost all cases involving American Indian tribes are decided in federal court, since states hold no jurisdiction over federally recognized tribes and tribes are rarely sued because of their sovereign immunity.

However, the McCarran Amendment states that water-rights questions involving the federal government can be answered through adjudication in state court. The scope of the law was later extended to include Indian tribes, allowing one of the very few instances in which tribal rights can be decided in state court.

right, Water from Lake Atoka

Michael Burrage, the lead attorney for the tribes in the suit, contended the state’s laws are set up in such a way that the McCarran Amendment cannot be used to adjudicate such claims.

Photos by Mark Hancock

 
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