THE OKLAHOMA BAR JOURNAL 8 | JUNE 2024 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. based on the Treaty of Dancing Rabbit Creek.12 In 1998, the state of Oklahoma refused to pay for the construction of Sardis Lake because it would not control the water in the lake. They were sued by the Army Corps of Engineers. In 2009, Oklahoma was ordered to pay its debt. Seeing an opportunity to secure needed water rights, the city of Oklahoma City agreed to assume the state of Oklahoma’s debt and pay for the construction of Sardis Lake if it could be granted a permit for the totality of water in Sardis Lake. Oklahoma City applied to the Oklahoma Water Resources Board (OWRB) for such a permit, and it was granted in 2010.13 Although the treaty rights to water under the Treaty of Dancing Rabbit Creek had not been defined, the Choctaw and Chickasaw nations knew it was not zero.14 Susan Work notes, “Tribes in Oklahoma, at a minimum, possess reserved water rights.”15 In 2011, these tribes filed suit in federal court against the state of Oklahoma, Oklahoma City and the Oklahoma City Water Utilities Trust, asserting treaty rights to the water. In 2012, the suit was stayed to allow for settlement negotiations.16 Intensive negotiations continued until the settlement agreement was reached by the parties on Aug. 17, 2016.17 The terms of the agreement were passed by the U.S. Congress in the Water Infrastructure Improvements for the Nation Act in 2016.18 Starting in 2016, the parties worked vigorously to meet the preconditions of the agreement as outlined in Section 4 of the settlement agreement. To prepare for the technical demands of the agreement, the Chickasaw Nation invested in its Natural Resources Office, and the Choctaw Nation invested in its Office of Water Resource Management.19 The Oka’ Institute was created at East Central University as a clearinghouse for water policy, and it assisted with providing scientific information.20 East Central University created a Master of Science degree in water resource policy and management that has graduated 60 students, many of whom work on issues relating to the settlement agreement.21 Additionally, documentation of the Kiamichi Basin Hydrologic Model was filed at the OWRB’s Oklahoma City offices, and the Atoka and Sardis Conservation Projects Fund was created. The cases Chickasaw Nation and Choctaw Nation v. Fallin et al. and OWRB v. United States et al. were dismissed.22 In 2017, Oklahoma City applied for a water permit pursuant to the settlement agreement to divert stream water from the Kiamichi River. Despite 85 protests filed during the hearing, the OWRB granted the permit. A petition for judicial review – Leo v. OWRB – was filed in the District Court of Pushmataha County on Nov. 8, 2017. The local residents believed the settlement agreement did not protect the Kiamichi Basin adequately and filed suit against the OWRB but did not include Oklahoma City in the suit.23 The case effectively delayed the implementation of the settlement agreement for over five years, but the Oklahoma Supreme Court’s decision in Leo v. OWRB hinges on procedure and not water law. The Oklahoma Supreme Court held that the OWRB clearly has the authority to appropriate water, and the district courts have the authority to adjudicate water rights.24 The city of Oklahoma City was not named as a respondent and entered a special entry of Settlement area map. Courtesy Water Unity Oklahoma, www.waterunityok.com.
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