The Choctaw and Chickasaw Nations on Thursday filed a federal lawsuit against Oklahoma City and the Oklahoma Water Resources Board in an effort to halt future sales and exports of Southeastern Oklahoma water without agreement from the tribes.
The tribes are asking the court to issue a permanent injunction to halt the proposed transfer of water to Oklahoma City from Sardis Lake unless the transaction has been negotiated with the tribes or approved by the court.
The tribes are not asking the court to interfere with water transfers that are already happening, said Michael Burrage, attorney for the tribes.
“We're not seeking to cut off anybody's water right now,” Burrage said, noting that tribal officials are aware that would be devastating to Oklahoma City in the midst of the current drought.
However, current water transfer agreements may be an issue as the lawsuit moves forward, he said.
Oklahoma City has been obtaining a portion of its water supply from Southeastern Oklahoma since 1962 and currently gets about half its water from lakes that are within Choctaw and Chickasaw Nation territories, said Jim Couch, city manager for Oklahoma City.
The tribes want the requested injunction to also cover proposed or potential future water transfers to Texas or anywhere else outside tribal boundaries of waters that originate within the tribes' jurisdiction.
Couch and Oklahoma Water Resources Board officials declined to comment on the lawsuit.
‘No realistic alternative'
The Choctaw and Chickasaw Nations issued a joint news release Thursday stating they have been trying for at least a decade to establish government-to-government negotiations with the state to resolve water rights issues.
“Unfortunately, our efforts have been unsuccessful, leaving us no realistic alternative to legal action,” Chickasaw Nation Gov. Bill Anoatubby said in the news release.
Choctaw Chief Gregory E. Pyle added that “a lack of any real progress on the initiation of meaningful government-to-government talks on these matters leads us to believe further inaction would simply mean the deepening of our present challenges.”
The Choctaw and Chickasaw Nations claim they own the rights to water within their tribal territories by virtue of the 1830 Treaty of Dancing Rabbit Creek, which gave the tribes jurisdiction over much of southeastern Oklahoma.
The tribes noted in the lawsuit that a 1906 act of Congress allotted land rights within their boundaries to individuals — both Indian and non-Indian — but contend their water rights within tribal boundaries remain intact.
The Choctaw Nation holds an undivided 75 percent interest and the Chickasaw Nation holds an undivided 25 percent interest to the water rights within a tribal territory that encompasses all or parts of 22 counties, they contend.
The counties are Atoka, Bryan, Carter, Choctaw, Coal, Garvin, Grady, McClain, Murray, Haskell, Hughes, Jefferson, Johnston, Latimer, Le Flore, Love, Marshall, McCurtain, Pittsburg, Pontotoc, Pushmataha and Stephens.
The tribes made it clear in their lawsuit that it is not their intention to use their claimed water rights to deny water to any non-Indian communities or residents within their territories.
As a matter of policy, the tribes “have not objected and do not presently object to the productive use of tribal water resources for the economic and environmental health of the treaty territory communities and residents,” the lawsuit states. “They have, however, never consented to the proposed or actual export of water resources from the treaty territory.”
Transfers to which the tribes have not consented include proposed water transfers from Sardis Lake to Oklahoma City, as well as water transfers that have been going on for years from Atoka Lake and McGee Creek Reservoir to Oklahoma City, the tribes said.
“The (Oklahoma City) Water Trust's diversions of Clear Boggy Basin waters occur in such volumes and are subject to such poor oversight and control as to regularly convert Atoka Lake to a muddy hole — a result that imposes adverse economic and environmental impacts on local communities and sparks considerable local and regional concern and opposition,” the lawsuit states.
Proposed water transfers would do even more damage, they claim.
“There are currently on file with the Board seven additional water-use permit applications that seek authorization for trans-basin exports of treaty territory waters in a cumulative amount that exceeds 1,900,000 acre feet per year, ... more than 10 times the water trust's current diversion or proposed new withdrawal and export from the Kiamichi Basin,” the lawsuit states.
Oklahoma City is seeking authority from the state water board to export water from Sardis Lake in exchange for paying the state's financial obligation for the lake's construction. Several Texas entities also want to buy and export water from Southeastern Oklahoma to meet the needs of growing North Texas cities.
The tribes argue that their water rights under the 1830 treaty legally prevail over any rights the Oklahoma Water Resources Board has to allocate water to Oklahoma City, Texas or anyone else under state law.
The Choctaw and Chickasaw Nations said in their news release that the “recent formation of a state joint legislative water committee based on the presumption of the supremacy of state law on this issue is yet another indication of disregard for tribal rights and demonstrates a commitment by the state to take unilateral action.”
“We haven't gone out looking for a fight on all this,” Burrage said. “We're using the courts to protect our water, period.”
Named as defendants in the Oklahoma City federal court lawsuit are Gov. Mary Fallin, the City of Oklahoma City, the Oklahoma City Water Utility Trust, and the Oklahoma Water Resources Board and its members and executive director.