San Luis Rey Water Rights Challenge - A 100-Year Old Struggle
The following is a release on behalf of the San Luis Rey Indian Water Authority in regards to their 100-year old water rights struggle.
Five southern California Indian tribes, comprising the San Luis Rey Indian Water Authority, have important questions for the Obama Administration. The tribes, the La Jolla, Pala, Pauma, Rincon and San Pasqual Bands, located in northern San Diego County, are asking the federal government to settle a 100-year old problem created when it gave away their water rights.
The tribes want to know why senior staff of the departments of Interior and Justice are ignoring the President’s policy to honor federal trust responsibilities. And, why, after giving water promised to the tribes away to the forerunners of two municipal water agencies, and then agreeing to a settlement act passed by Congress to resolve the issue of the 43-year legal battle over water rights, the federal government now refuses to sign off on the terms of its own settlement?
“Central to the federal refusal is an attempt to avoid or limit their trust obligations to the tribes and future protection of our water supply,” said Bo Mazzetti, vice president of the San Luis Rey Indian Water Authority, and chairman of the Rincon Band of Luiseño Indians.
After 23 years of negotiations, on April 25, 2012, the tribes, the City of Escondido and the Vista Irrigation District, reached an agreement as stipulated by the 1988 Congressional San Luis Rey Water Rights Settlement Act.
Everyone was celebrating a successful conclusion to the expensive, time-consuming water dispute, involving not just five tribes, but over 300,000 municipal rate payers. The complex dispute that had put needed infrastructure improvements for the water agencies in limbo and held the future water sustainability for the Indian bands was, apparently, amicably resolved.
However, in a complete and surprising reversal of the original federal settlement act, the departments of Justice and Interior rejected the deal. The tribes, and water agencies, supported by state and federal elected office holders and San Diego County Board of Supervisors, are not ready to concede defeat.
“We are hoping that discussions with the Secretary or Assistant Secretary of Interior will make a difference, especially since they are appointed by President [Barack] Obama, and presumably are aware of the administration’s expressed commitment to living up to the federal government’s trust responsibilities,” explained Mazzetti.
Local lawmakers say they want the federal government to approve the agreement. “It is in the interest of all parties, including the federal government to enact a comprehensive settlement with respect to Indian water rights on the San Luis Rey River,” said Rep. Darrell Issa in a statement. “The Departments of Justice and Interior should move forward immediately to achieve a final settlement agreement.”
The basis for the policy of congressional settlement of Indian water rights disputes is that in almost all situations, the federal government created the conflict between tribes and their neighbors by encouraging and subsidizing water development for non-Indians with little or no regard for Indian water rights and the Winters Doctrine.
The 1973 report of the National Water Commission said that, “in the history of the government’s treatment of Indian tribes, its failure to protect Indian water rights for use on the reservations is one of the sorrier chapters.”
The situation is even worse on the San Luis Rey River in southern California. No sooner had the reservations been set aside under the Mission Indian Relief Act of 1891 than the government entered into agreements and issued a license that allowed non-Indians to construct facilities on the reservations that enabled diversion of 90 percent of the water to nearby non-Indian communities.
In 1988, Congress passed the San Luis Rey Water Rights Settlement Act sponsored by Rep. Ron Packard and signed into law by the President Ronald Reagan. The purpose of the Act was to fix the problem that the government had created by giving away the water of the San Luis Rey River twice: First to the bands when the reservations were established, and then, when the ink was hardly dry, to the predecessors of present-day users of the water, the City of Escondido and Vista Irrigation District.
The Act authorized a monetary settlement and provided a framework of terms, which included agreement between the water agencies, the tribes and the federal government. The law said the five tribes were entitled up to 16,000 acre-feet of supplemental water annually. It stated clearly that the supplemental water would need to come from a source other than the San Luis Rey River. A question of where a new source of water would come from was not resolved for another 10 years.
The state of California made an indispensable contribution to the settlement in 1998, when it appropriated $200 million to implement California’s plan to live within the state’s apportionment of Colorado River water. That sum was dedicated to the lining of the All American Canal and its Coachella Branch. The state Legislature specified that a portion of the conserved water (16,000 acre-feet) from that project would be made available as the supplemental supply required for the San Luis Rey Settlement.
The only thing needed to put an end to the long dispute between the local tribes, federal government and the non-Indian water agencies is an agreement among the five Indian Bands, the City of Escondido, the Vista Irrigation District and the United States. The Bands, Escondido and Vista Irrigation reached agreement last year. Unfortunately, the United States has changed its mind.
“So the federal agencies, which really created the dispute in the first place, now have become the stumbling block to the final settlement, and it is a serious problem,” said retired Rep. Packard, who has remained as a consultant for the tribes and the two water agencies.
He believes the federal government wants to rid itself of its responsibility to provide water to the reservations, including helping to defend Indian water rights.
According to Mazzetti, from 1988 through 2004 the positions of the federal government and the Bands were aligned. “We took common positions in the litigation, which went all the way to the Supreme Court in 1984. We stood together in negotiating the terms of the settlement with Escondido and Vista. We advocated enactment of the settlement to Congress. We worked together to find and make arrangements for the supplemental water at no cost to the federal government,” he noted.
At long last and with considerable compromise, on April 25, 2012, the five tribes, the City of Escondido and the Vista Irrigation District notified the Secretary of Interior and the United States Attorney General that they had concluded the agreement specified by the 1988 Settlement Act and were seeking their assistance in obtaining final federal approvals.
May 24, 2012, the California parties were notified by the Department of Interior that the federal government had a fundamental disagreement with the settlement principles that had been the framework for the past 25 years.
The Settlement Act remained the same, but the policy of the administration seemingly has changed 180 degrees. The current interpretation of the law by the federal government voids any future responsibility, any exposure, any risk of liability for anything having to do with the bands’ rights to the surface and ground waters of the San Luis Rey watershed.
Today the federal team continues to insist that the price of settlement for the United States is termination of its trust responsibility for all of the bands’ rights to the San Luis Rey water.
Rep. Packard, a principal author of the Act, vehemently disagrees. “The government’s refusal to join the parties’ settlement agreement is contrary to the intent of Congress as clearly expressed in the Act. The legislation was in no way intended to terminate or resolve the band’s reserved water rights to all the San Luis Rey water and was not written to adjudicate all rights in the San Luis Rey River.”
Finally, according to Mazzetti, the government’s current position is not just contrary to the President’s stated policy, but is inconsistent with its trust obligations and fails to follow the Indian Canon of Statutory Construction, which resolves any ambiguity in favor of the Indians.
A bright spot however evolved when tribal officials met with high-ranking Interior officials on March 7, 2013 and the federal officials expressed their willingness to make the San Luis Rey Water Settlement a priority for the Interior Department. The highest-ranking official present at the meeting expressed optimism and a desire to reach agreement and reach a solution within the next two weeks.