Gov. Mary Fallin asked leaders of the Chickasaw and Choctaw nations on Thursday to withdraw their federal lawsuit against Oklahoma over tribal water rights in the southeastern part of the state.
“If you are truly interested in mediation over litigation, you will dismiss your lawsuit,” the governor wrote in a letter to Chief Greg Pyle of the Choctaw Nation and Gov. Bill Anoatubby of the Chickasaw Nation.
“I am asking for the sake of our citizens, businesses, taxpayers and frankly, our image as a state, not to mention the huge cost our state will have to bear for a prolonged lawsuit, that you continue to work with the citizens and State of Oklahoma to find a resolution through mediation,” she wrote.
What the tribes want
The lawsuit filed by the tribes asks a federal judge to stop the state's plan to sell water storage rights to Sardis Lake to Oklahoma City.
Fallin said an ongoing mediation process is the best way to resolve disputes between the state and the tribes. If talks continue, the state will not file a separate state court action — as part of what is known as a stream adjudication process — to determine the extent of tribal water rights in their historic territories.
Pyle and Anoatubby issued a joint statement, saying they urge the state to recognize that the Chickasaw and Choctaw nations have substantial water rights protected by federal law.
They say the state court action would be “neither necessary nor productive,” and that “federal court is the only legal forum that has jurisdiction over appropriate issues.”
The statement said the tribes hope a resolution can be reached outside of the court system, although the state seems committed to its chosen course of action.
Fallin calls action necessary
Fallin said in her letter that state officials have repeatedly told the Choctaw and Chickasaw nations that the state court action is a necessary response to their lawsuit.
The federal lawsuit filed in August by the tribes claims the water rights in question are provided to them in treaties signed in the 1800s. The tribes also claim that the state would be violating federal law by adjudicating the waterways in southeastern Oklahoma, court documents show.
The tribes are claiming rights to all the waters in 22 counties in southeastern Oklahoma. Fallin said in her letter that the tribes asked the federal court to stop the state from taking actions related to those waters “unless and until a comprehensive (stream) adjudication … has been completed” to determine tribal rights.
“Working in good faith, the State of Oklahoma agreed to initiate just such adjudication so that a court of law could finally and conclusively determine what rights, if any, the Nations have to the waters of those 22 counties in southeastern Oklahoma,” Fallin wrote. “Strangely enough, you have now indicated you have changed your mind and have cried ‘foul' over the State's agreement, and are now taking every action possible to prevent that adjudication from occurring.”
Mediation offer stands
Fallin wrote that before mediation with the tribes began, the state repeatedly told tribal officials that if they would agree to dismiss the lawsuit without prejudice, which preserves their ability to refile it, the state would not initiate the adjudication. Instead, the state would continue to mediate the dispute with the same mediator, and under the same mediation rules, for as long as talks were productive.
“That offer still stands,” Fallin wrote.
The governor earlier told reporters of her desire for talks with the tribes to continue, but they have to be fair to the state and citizens of Oklahoma.
“I hope that we can continue on mediating, talking, trying to keep the dispute out of the court system and move it more into mediation,” Fallin said. “I think that's what's in the best interest of the state. Certainly it would cost a lot of money to go into a long, protracted legal fight in the court system.
“If at some point they decide they don't want to mediate on their lawsuit against the people of Oklahoma, then I am fully prepared to do everything I can to represent the state's water interests and the people of Oklahoma and their water interests.”
Tribes work on regional plans
Pyle and Anoatubby last week issued a joint statement saying they hoped to work with state leaders to develop a water plan “that meets the needs of urban and rural Oklahoma while maintaining the environmental health of the state's rivers, streams and lakes.” Faced with the possibility of prolonged litigation, leaders of both tribes have repeatedly expressed a preference to settle their differences with the state through negotiation, the statement said.
“The Nations have no desire to challenge existing permitted uses of water by any Oklahoman,” Pyle said. “Rather, the lawsuit filed against state officials and Oklahoma City was designed to ensure that our rights are taken into account in any future plan to remove additional water from our historic homelands.”
The Chickasaw and Choctaw Nations said in the statement they are working with the U.S. Army Corps of Engineers to develop a regional water plan.
“We call on state leaders to work with us to develop a sustainable water management plan for the greater good of all Oklahomans,” Anoatubby said. “We firmly believe that state and tribal leaders can resolve our differences through negotiation instead of proceeding with the general stream adjudication process.”