WATER RIGHTS CRUSADE
HISTORY OF WATER RIGHTS
In 1904, the chief engineer for the Los Angeles Department of Water and Power, William Mulholland, visited the Owens Valley and saw the Owens River’s potential as a source of water for the growing city. Fred Eaton, a former Los Angeles mayor, began purchasing options on Owens Valley ranches in March of 1905. A bond issue for the construction of a gravity-flow aqueduct from the Owens Valley to the San Fernando Valley (233 miles) easily passed in the fall of 1905. With the support of President Theodore Roosevelt, rights-of-way were obtained so that the project could cross public lands and the boundaries of the Sierra Forest Reserve were extended eastward. Construction of the aqueduct began in 1908 and was completed in 1913.
By 1932, the City owned approximately 85% of all private property in the Owens Valley. In the same period, the majority of the federal lands previously held for the Owens Valley Indians, including a 67,163.66-acre tract north of Bishop, were removed from trust status. The City of Los Angeles then offered to exchange 1,511 acres of City-owned lands for 3,126 acres of federally reserved Indian lands. As described by City employees, this plan would serve to concentrate the Indian population on three new reservations (Bishop, Big Pine and Lone Pine) as opposed to having them living on scattered parcels. Also, the lands offered by the City were highly taxed and those to be received from the federal government were not. Congress authorized the land exchange between the City and the Department of the Interior on April 20, 1937 (PL 75-43).
In 1939, the United States government exchanged 2,913.5 acres of land held in trust for the Owens Valley Paiute Indians for 1,391.48 acres owned by the LADWP. The exchange resulted in the establishment of a landbase for the Bishop, Big Pine and Lone Pine reservations. Even though the Act of April 20, 1937 authorizing the land exchange specified that water rights were to be exchanged along with the lands, the Los Angeles City Charter would not permit sale or trade of its water rights without the approval of two-thirds of city voters. After some negotiations the federal government and the City of Los Angeles agreed to conclude the exchange with the intent of resolving the water rights issue at a later date; the deed was signed on June 26, 1939. The City agreed to provide, in perpetuity, 4 acre-feet of water per acre per year to the three reservations. This is a contractual water right based on shares owned by the federal government in the Owens River Canal Company and the Big Pine Canal Company that amounts to 5,566 acre-feet of water per year for the three reservations collectively. The federal government clearly did not fulfill its trust responsibility to the Bishop, Big Pine and Lone Pine Tribes by entering an agreement on our behalf that totally neglected our Federally Reserved Indian Water Rights. Today, these water rights are the central issue of negotiations between the Bishop, Big Pine and Lone Pine Tribes and the City of Los Angeles.
WATER RIGHTS NEGOTIATONS
The following briefly summarizes some of the milestones of the water rights negotiations. In 1994, the Department of the Interior appointed a Federal Fact Finding Team. The Fact Finding Team concluded that the Bishop, Big Pine and Lone Pine Tribes did have a valid claim to the water rights associated with the lands traded in the 1939 Land Exchange and therefore were not receiving all of the water they were entitled to on their current reservations.During that same year the Tribes, through the Owens Valley Indian Water Commission and Bureau of Indian Affairs (BIA), contracted with Natural Resources Consulting Engineers, Inc. (NRCE) to perform an Indian reserved water rights (Winters Rights) quantification study for the exchanged lands of the Owens Valley Indians. The study was performed using the Practicably Irrigable Acreage (PIA) concept. This concept takes into account the historic, present and future needs of the Tribes based on consideration of the land base for irrigation and other uses, water supply from both groundwater and surface water, the climate of the area relative to the adaptability of various crops in the region, costs of facilities to serve water for both agricultural and non-agricultural water demands, and the economic returns to justify the claims of water.
The reconnaissance level report for this study, Reserved Water Rights Quantification for the “Exchanged Lands” of the Owens Valley Indian Tribes, Owens Valley, California, was completed in August 1994. Also during this time, Planning Consultant Elton J. Olinghouse performed additional investigations into current and near future water needs for the reservations. The results of that study concluded with the January 1996 report titled, Unmet Water Needs of Owens Valley Tribes. In July 1995, a Federal Water Rights Negotiation Team was appointed by the Department of the Interior to facilitate negotiations on the quantified water rights figure on behalf of the Bishop, Big Pine and Lone Pine Tribes. The team consisted of Mr. Dan Jackson of the Department of the Interior’s Solicitors Office in Phoenix, Arizona, Mr. Bob Laidlaw who at the time was working for the Bureau of Land Management (BLM), and Mr. Curtis Millsap of the Bureau of Indian Affairs, Western Nevada Agency, based in Carson City, Nevada. The team was unsuccessful in assisting the Tribes with reaching an acceptable settlement of the water rights. It seemed that the negotiators were doing their best to see that the Tribes received as little as possible.
In late 1997 the negotiations came to a standstill.In the fall of 1998, new ground rules were set between the Tribes for the negotiations. The Bishop, Big Pine and Lone Pine Tribes made a determination via Tribal resolution that just those three Tribes should be involved in the water rights negotiations related to the exchanged lands and would be the only Tribes sharing in the settlement. The decision is based on the fact that the water rights that are being negotiated are attached to lands that were traded to provide a land base for the three reservations and that the negotiations would be more productive if just the affected Tribes participated. In the past the Benton and Fort Independence Tribes (former Commission Member Tribes) attended the negotiation sessions and participated as support Tribes. The Benton and Fort Independence Tribes currently possess water rights on their respective reservations. With the Commission voting to abide by the Tribal resolutions, the Commission’s Articles of Incorporation and By-laws were amended. The amendments clarified that the water rights negotiations related to the 1939 Land Exchange would involve just the Bishop, Big Pine and Lone Pine Tribes but that the Commission would continue to provide environmental- and water-related services to its other member Tribes. In addition, negotiation protocol was established.In early 1999, the Commission hired the law firm Williams, Janov and Cooney as the our new water rights attorneys.
Our attorneys spent time bringing themselves up to date on our water rights and the past negotiations. They were also asked to give us a legal analysis as to whether or not the Benton or Fort Independence Tribes had any interest in the water rights related to the 1939 Land Exchange. Their findings concluded that the water rights related to the 1939 Land Exchange are to benefit only the Bishop, Big Pine and Lone Pine reservations that were established as a result of the land exchange. In addition, we contracted with Elton Joe Olinghouse to do historical research at the National Archives in San Bruno, CA to uncover whatever he could related to the 1939 Land Exchange. His findings support our opinion that the water rights associated with the land exchange are for the benefit of only the Bishop, Big Pine and Lone Pine Tribes.
In the spring of 1999, the Bishop, Big Pine and Lone Pine Tribes through the Commission resumed the water rights negotiations with the LADWP. The three Tribes agreed upon a figure of 4,350 acre-feet of water provided that the acquisition of additional lands was included in the settlement. This amounts to 3.13 acre-feet of water per acre. When the contractual water right we currently receive is added the water totals 7.13 acre-feet per acre. We had a very promising meeting with the LADWP’s General Manager who stressed that our issues were all solvable. He also articulated that past negotiations and problems that arose would be put behind us, and that there was a commitment to move forward and reach a settlement.
Throughout the summer the Tribes worked on identifying which parcels of city-owned lands they were interested in acquiring and what the intended use would be. The next issue we had to deal with was the delivery of water; where would the water be pumped and how would it be conveyed to each of the three reservations. We brought out our hydrologist from Colorado and had a technical group meeting with the LADWP in November 1999. A negotiation session with the LADWP was scheduled for December. The goal was to come to an agreement on our land requests and to discuss the solar energy project that Los Angeles had proposed. Unfortunately, the meeting did not take place as planned. When the Commission arrived at the LADWP Headquarters in Los Angeles both the Benton and Fort Independence Tribes were there. They had been telling LADWP officials that the negotiations could not continue without them because the water rights the three Tribes are negotiating are also their water rights. This confused the LADWP and they would not continue with the meeting as planned until this issue was resolved. They communicated to us that they would like the Department of Interior to tell them who they should be negotiating with.
The Commission did get a chance to sit down with the LADWP representatives and we made a commitment to provide them with a legal analysis explaining why they should be negotiating the water rights related to the 1939 Land Exchange with just the three Tribes—whose land base was created by the land exchange.In January 2000, the Department of Interior requested that all five Tribes travel to Washington, DC to meet with them to see if we could reach some common ground that would allow us to move forward. During this meeting the Tribes agreed that they would attempt to work together through a Memorandum of Understanding (MOU). The MOU would clarify that the 4,350 acre feet of water that is on the table would be divided up among just the Bishop, Big Pine and Lone Pine Tribes and that the Benton and Fort Independence Tribes could negotiate for additional water.
If the LADWP agreed to include any additional water, it would be divided up between the Benton and Fort Independence Tribes. The MOU would also clarify that participation in the MOU does not mean that the Benton and Fort Independence Tribes are beneficiaries of the land exchange. The Benton and Fort Independence Tribes have not signed the MOU and the deadline for them to sign it has come and gone.The Commission’s legal analysis was sent to the LADWP explaining why they should be negotiating with just the three Tribes. A formal response has not been received. However, LADWP has verbally communicated that they would like the Interior to make a determination or have a court decision on this issue. The Department of the Interior is not inclined to make a determination. If the LADWP will not move ahead with just the three Tribes legal action may be taken. In fact, the Bishop Tribe is in litigation with the LADWP over certain water rights/land issues.