Tribes threaten litigation in Sardis Lake dispute

By John Estus
Oklahoma City (AP) April 2011

Two of Oklahoma’s largest tribal nations in February made a direct threat to sue over the state’s high-profile sale of Sardis Lake to Oklahoma City, records show.

Since then, the city has continued Sardis Lake development work that a tribal attorney in February warned was “profoundly unwise” and could spur a lawsuit.

A lawsuit over the Sardis Lake deal would strike at the heart of a decades-old dispute over water rights in Oklahoma, where tribal nations have various treaties for water and other resources that predate statehood.

Amid tribal opposition, the city and state agreed on a $42 million deal last June that gave the city storage rights to 90 percent of Sardis Lake in southeast Oklahoma. Several tribal nations don’t think the deal was legal. It was widely-believed that tribal lawsuits would follow the deal, but none have been filed.

But in a February cease-and-desist letter to city and state leaders, Chickasaw and Choctaw nations attorney Michael Burrage wrote that continued action on the Sardis Lake deal risked “the triggering of complex federal law litigation.”

The letter is the clearest public indication yet of tribal intentions to take the issue to court. Oklahoma City Manager Jim Couch said the letter seemed “a little hostile.”

In the letter, Burrage accused the city of engaging in “unilateral aggression” and “the squandering of public money on a flawed plan.” Burrage is a partner in the prominent Oklahoma City trial law firm Whitten Burrage.

Through a tribal spokesman, Burrage provided a statement late Friday that said the tribes want to negotiate a solution with the state.

“The tribal leaders want common sense and sustainable water resource management, just like everyone else, and plainly the best path to that is negotiations between the state and tribes,” the statement said. “We just hope that Oklahoma City comes to see that and doesn’t try to force action on its permits. There’s time to do this right, and that’s what we’ll keep working toward.”

Since this past June, the city has paid off the lake’s $27 million debt, started paying for lake maintenance costs and hired an engineer to design a pipeline to bring the lake’s pristine water to central Oklahoma, where water demand is expected to exceed supply in the next 20 years.

In addition, the city may form a regional water trust later this year that would oversee distribution of the water throughout central Oklahoma in the future, Couch said. All this comes despite the tribal protests and the city’s contract with the state remaining in procedural limbo.

The Oklahoma Water Resources Board and the Oklahoma City Water Utilities Trust have signed the Sardis Lake contract, but it has yet to be approved by the U.S. Army Corps of Engineers, which has final say on whether control of the lake’s water can be transferred from the state to city.

The federal approval is contingent on the city obtaining outright water rights to the lake. Water rights differ from storage rights, which the city would receive through the already-signed contract. Storage rights pertain to the lake itself, while water rights pertain to the water in the lake.

The city applied for a permit for the lake’s water rights several years ago, but has not pressured the water board to act on the application. J.D. Strong, director of the water board, said there are no plans to consider the city’s permit application right now.

Couch said the city is “making sure the timing is right” before pressing the board to take up its application. The city won’t need the water for at least 20 years, Couch said.

Couch mentioned transition in the Oklahoma governor’s office and expected water board approval this fall of the long-awaited Oklahoma Comprehensive Water Plan as reasons the city hasn’t pushed for its water rights permit.