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Drip, drip, drip

The slow-going battle for water rights in southeast Oklahoma now heads to the federal court system.

Clifton Adcock March 21st, 2012

In the latest move over a fight about water, a lawsuit to determine water rights in southeast Oklahoma was removed from state court when the U.S. Department of Justice filed action March 12 to bring the case to federal court.

The legal battle has ensnared the Oklahoma Water Resources Board, government of Oklahoma City, state Legislature, Gov. Mary Fallin, Choctaw and Chickasaw nations, several officials from southeastern Oklahoma counties and advocates of water rights in that area.

Tensions began in 2010, when the Oklahoma City Water Utilities Trust, trying to obtain more water for a growing urban area, bought water-storage rights in Sardis Lake. The purchase came after the state had neglected to make payments to the U.S. Army Corps of Engineers for the lake’s construction.

Many in that part of the state, including the tribes, saw the move as an attempt to take one of the region’s main economic resources: water. While litigation brought by a Texas county dealing with a similar issue (cross-border water sales) has dimmed, the intrastate fight may have just begun.

right Gov. Bill Anoatubby

Tribal leaders praised the DOJ’s action. Chickasaw Nation Gov. Bill Anoatubby and Choctaw Nation Chief Greg Pyle called it “a very positive development” in a joint statement.

“We think federal court is the proper venue for our claim,” they said, “which is based on our historic treaties with the U.S. government and on federal law.”

Both tribes have filed suit against the OWRB, Fallin, Oklahoma City Manager Jim Couch and others over the water in southeast Oklahoma. In the litigation, the tribes argue that treaties predating statehood ensure them 100 percent of the water rights in their jurisdictional boundaries.

After the lawsuit was filed, the OWRB authorized its attorneys to file an adjudication suit under a little-known law known as the McCarran Amendment, which would allow courts to decide who has the water rights in much of southeastern Oklahoma.

The OWRB and the state attorney general’s office said they needed to counter the claim in the tribal lawsuit that no such adjudication had been done, as well as protect currently held water rights.

right Greg Pyle

The tribes responded that the adjudication suit would spur a generations-long fight over water rights and that the state’s regulation system did not give it the authority to pursue remedies under McCarran.

In its March 12 filing, the DOJ, on behalf of the federal and tribal governments, stated that because the government had not waived its sovereign immunity, and because the state’s claims were based on federal law, federal court is the proper venue.

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