Century old tribal water dispute will be settled soon

January 26, 2017

 

A lawsuit that has gone on so long that most of those who initiated it are dead, will be settled very, very soon, possibly this week. For Bo Mazzetti, chairman of the Rincon Band of Mission Indians, that is a bittersweet thing. “My biggest regret is that not one of the original people who started this is alive to see it finished,” he told The Roadrunner this week. “They have all passed away. It has been fifty years we have been trying to settle this.”
One of those was his father, the legendary Rincon leader Max Mazzetti, who fought for Indian causes all his long life.
The lawsuit involved water that the federal government gave away—first to the five Indian bands whose reservations ring the Valley Center area—and then later gave the very same water to two water agencies that came to serve Escondido and Vista.
When you give the same thing to two different parties, it is a recipe for disaster.
This action by the federal government more than a century ago planted the seeds of a festering legal wound that is only now being healed.
Even as the United States was forming Indian reservations in San Diego County in latter part of the 19th century and the early part of the 20th century and giving them water rights, it was giving the same rights to the non-white populations through the approval of the water and power projects that today serve Vista and Escondido. Beginning in the 1890s the newly formed City of Escondido (through ancestor agencies that included the Escondido Irrigation District and Escondido Mutual Water Company) began diverting water from the San Luis Rey River through the Escondido Canal, which crosses several reservations to Lake Wohlford, which is owned by the city.

On Wednesday, January 25 the Escondido City Council was due to vote on a “Global Agreement Between the City of Escondido and the Vista Irrigation District.” This week an attorney for the city filed a motion in federal court to revive the longstanding lawsuit one more time so that it could be noted that all the parties involved had agreed to the settlement.
Between 1912 and 1998 Vista and Escondido joined in a total of 18 agreements that affected various aspects of the local water system that included facilities owned by Escondido and the VID and allowed water from the Warner Basin to flow into Dixon Lake Treatment Plant and from there to Escondido and VID. This new agreement supersedes all of them.
The new agreement recognizes the Settlement Agreement between Escondido, VID and the five neighboring Indian bands, including Rincon, San Pasqual, La Jolla, Pauma and Pala. All, to one degree or another, take water from the San Luis Rey River.
In the 1960s the tribes sued VID and the City of Escondido to reclaim their rights to the San Luis Rey water. Most who initiated those lawsuits died before the issues were resolved.
In the 1980s former Congressman Ron Packard did his best to solve this situation. Last year Congressman Duncan Hunter’s legislation settling the San Luis Rey lawsuit passed Congress. One of President Barrack Obama’s final act in office was signing that bill.
Duncan Hunter Deputy Chief of Staff Mike Harrison told The Roadrunner: “Obviously, the congressman is very pleased to see the legislation finally be implemented. This is a longstanding issue. Water is very important in our region. Any action that can be resolved to such a longstanding issue we are happy to see resolved. Former Congressman Ron Packard was the champion of this. He should be given credit for his leadership and we are thankful that we were able to get it done.”
In the early years of the decades-long litigation it went to the U.S. Supreme Court but by 1985 no final decision had been reached and all the parties determined that they should reach a settlement. Congressman Packard’s San Luis Rey Indian Water Rights Settlement Act resolved the dispute. The Act provided for finding the supplement amount of 16,000 AF and to pay the bands $30 million in damages.

 

Packard, who retired to Payson, Utah after his 18 years in Congress, was gratified to hear that the cause he fought for before he was elected to Congress and after was finally being resolved.  Packard told The Roadrunner: “I have worked on the San Luis Rey water settlement since before I went to Congress, forty years or more. It’s marvelous that we finally put it to bed. We finally got it done this year, thanks to Duncan Hunter, who introduced the bill. The lawsuit is put to bed!”
Packard recalls, “When I went to Congress we passed the legislation.” When he took office, he met with the bands, the water districts and the Department of the Interior to determine how to settle the lawsuit.
“We required that the government would furnish enough water to make all parties equal, which meant they had to come up with the water. The first water that came from that lining [of the two canals carrying water from the Colorado River] was to settle this dispute. Plus, we earmarked 30 million for the Indians in a trust that they can access that money once we sign the agreement. It has accrued interest since 1986, now it’s closer to $60 million, that will be a big benefit to the five bands and settles a long legal dispute.”
Once the federal government identified lining the canals as the source of the water, litigation over that action required several more years to settle.
As Epp describes it, “the benefits fall into two major areas. The first is it preserves and protects an important supply of local water and second it is a high-water mark in our cooperation and teamwork with the surrounding Indian bands.”
What started as a bitter adversarial relationship in the 1960s eventually evolved into the warring parties realizing that the true cause of the problem was the federal government.
“This brings us one step closer to vitalizing an issue that started in 1967 and 1969 for the tribes,” said Mazzetti. “The federal government caused the problem by creating the reservation and giving it the water and then giving it to Vista and Escondido. We became very hostile towards each other. Since then we have become good friends and allies and worked well together.”
Epp said, “The framework at that time was that the Indian bands sued the Escondido Mutual Water Co. and Lake Henshaw Water Company, Escondido and Vista for essentially taking the waters of the San Luis Rey River. The paradigm shift that made this settlement possible, was that the U.S. had licensed the cities to use that water at the same time it created the reservations. So essentially the U.S. gave the same water away twice.”
To settle this problem, the parties had to involve the U.S. government. The Department of the Interior agreed to replace the water and make it available so the cities wouldn’t be harmed. But where to find the 16,000 AF?
“Where do you find another sixteen thousand acre feet?” asked Epp rhetorically. “It took the better part of a decade to find the answer.” The answer was to line the Coachella Canal and the All-American Canal, which brings water to California from the Colorado River. This saved 100,000 AF from evaporation, and 16,000 was set aside for the settlement.  Many other entities benefited from lining those canals, but the tribes were put at the head of the line.
Mazzetti recalls, “When in 1986 Packard passed the act that promised to find the 16,000 acre feet, no one knew it would take twenty years to find it! When we found it, the federal government tried to rewrite the agreement. We spent a long time fighting what the definition of ‘supplemental’ meant. We all know what it means, but government attorneys thought it meant ‘replacement.’ There was a seven-year battle on that one word.”
“Once we had the other water supply it became a matter of negotiating an agreement,” said Epp. “It covered how we were to share the supplemental water and local water so the bands and the U.S. entered into an agreement that was signed in 2012. Then we needed to have legislation—that was where Duncan Hunter came in.”
And now, says Mazzetti, “We’re almost there. The final step is to file in federal district court, which was done earlier this week by the City of Escondido. It had been an inactive case. Now they reopened the case. All the parties are in agreement and then the court can rule and close the case. The only thing left is to get a Federal Energy Regulatory Commission (FERC) license to operate the Bear Valley hydroelectric plant just below the Lake Wohlford dam.”
And perhaps, sometime soon, after sixty years of water, the water will begin to flow towards the Indian reservations.

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