- Ada, Oklahoma

March 13, 2012

Tribes' water lawsuit to stay in federal court

Gene Lehmann Managing Editor
The Ada News

Ada — Plans by the state of Oklahoma to have the Oklahoma Supreme Court decide southeastern Oklahoma water rights were shot down late Monday by the U.S. Department of Justice.

A motion filed by U.S. Attorney Stanford Coats argued the state did not give an adequate reason to begin a general stream adjudication process in Oklahoma. Basically, the state was seeking to have the high court rule on who owns and controls the water rights to the Kiamichi, Muddy Boggs and Clear Boggy stream basins — water basins the Chickasaw and Choctaw nations argue are within its traditional tribal territory and controlled by them through treaties dating back to 1830.

The motion by Coats ends Oklahoma’s hopes of settling the issues in state courts — for now. Coats’ motion sends all water related lawsuits and motions back to the U.S. District Court for the Western District of Oklahoma.

However, Oklahoma may appeal Coats’ motion to the 10th Circuit Court of Appeals in Denver.

State attorneys and Gov. Mary Fallin are weighing their options, according to a report in the Daily Oklahoman.

Oklahoma could petition the appellate court to redirect action back to the Oklahoma Supreme Court.

“We think this is a very positive development because we think federal court is the proper venue for our claim, which is based on our historic treaties with the U.S. government and on federal law,” Chickasaw Gov. Bill Anoatubby and Choctaw Chief Greg Pyle said late Monday evening.

“It is the hope of both nations this issue can be resolved in a way that will save everybody time and money,” said tribal lead attorney Michael Burrage. “The motion places both court cases in front of a federal court and before a nationally recognized mediator,” he added.

The original lawsuit filed by the Chickasaws and Choctaws — seeking an injunction to keep Oklahoma, Oklahoma City, the Oklahoma Water Resources Board and Oklahoma City Water Utility Trust — from pumping and storing water from Sardis Lake was filed in August 2011. That lawsuit is currently being mediated by Duke University law professor Francis McGovern.

In February, an appeal by Gov. Fallin for the tribes to drop the lawsuit was rejected by Anoatubby and Pyle who felt the best way forward was through negotiation, face-to-face talks and continuing mediation.

Oklahoma had vowed to seek stream adjudication through state courts if the tribes continued the federal lawsuit. It filed a motion with the Oklahoma Supreme Court early this year asking it to determine who controlled southeastern Oklahoma water rights.

However, it was argued by Anoatubby and Pyle such an action could not be resolved in state court since treaties were signed with the U.S. government. Coats’ motion affirmed that argument, saying Oklahoma failed to give adequate reasons to proceed.

The removal notice is particularly biting since the Oklahoma Water Resources Board sued the United States of America for stream adjudication to the state’s highest court.

“The action is removable to (federal court) as it is an action against the United State of America and certain of its agencies. As the Oklahoma Water Resources Board correctly states ... the rights of the federal parties to waters in the three stream systems is based in federal law,” Coats’ order states.