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PLACERVILLE, CALIFORNIA
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Appellate Court says EID must seek removal of rancheria water restrictions

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From page A4 | October 12, 2012 |

On Oct. 4, the California Third Appellate Court ruled that the El Dorado Irrigation District, which supplies water to the Shingle Springs Band of Miwok Indians, must seek permission from the Local Agency Formation Commission to continue to do so, and if such permission is not granted, EID and the sovereign tribe must take the matter to court for judicial relief.

However, by existing court order, so long as EID is working with LAFCO to remove certain water restrictions — as it is doing — then EID can continue to provide water service to the tribe.

The matter involves water restrictions LAFCO imposed when approving the annexation of the tribe’s trust lands into EID’s service area in 1988. LAFCO restricted the amount of water the tribe could receive to only that needed for 40 residential lots, limited governmental purposes, and no commercial purposes.

The restrictions are unprecedented in that LAFCO has never before or after imposed such restrictions on an applicant for water service from EID, the tribe noted. For its part, EID has a “first come, first serve” policy for its customers.

The U.S. Department of Interior, tribe and EID all have concluded what the tribe calls LAFCO’s “patently discriminatory restrictions — targeting only the Tribe” — are illegal and unenforceable as a matter of federal law.

State or local agencies cannot, without violating federal law, purport to control the land use of sovereign territory, tribal officials stated. And the original effect and intent of the water restrictions was to control the tribe’s use of its own land and ability to pursue economic development (since water is essential).

The legality of the restrictions was not an issue that was before the California Court of Appeal for decision. Without reaching that issue, the Court of Appeal ruled that EID could not just disregard the restrictions under California law, at least not without first formally applying to LAFCO to remove them.

“We were hoping the state appellate court would see the injustice of all of this, and undo it. It chose a different course,” said Nicholas Fonseca, chairman of the Shingle Springs Band of Miwok Indians. “What the judges did not know is that we tried to work with LAFCO, and ask them to remove the restrictions. That body was not interested at the time because certain people then sitting on the LAFCO were politically opposed to our effort to build a casino. Now that Red Hawk Casino is a reality, that view may have changed.”

Notwithstanding the tribe’s appeal to the Court of Appeal, the U.S. Department of Interior and EID have been working to remove the restrictions through a formal application to LAFCO. That application remains pending, and should be presented for formal action in December. It follows an effort by EID, the United States and the tribe to resolve the matter informally, through entry of a Memorandum of Understanding (MOU) between the parties.

In June 2008, after the Department of Interior’s Regional Solicitor had issued an opinion concluding the water restrictions were illegal and unenforceable, the tribe and EID entered an MOU that would allow EID to provide water to the tribe, consistent with the “first come, first serve” policy that applies to all others. In exchange, the tribe agreed to pay the commercial rate for water (even though it is a government, entitled to a governmental rate).

The tribe also agreed to upgrade water-delivery infrastructure on the reservation, an upgrade that positively affected water pressure not only on the reservation, but within the surrounding community.

A local group opposing the tribe’s casino — Voices for Rural Living or VRL—  then challenged the MOU on the ground that it violated state environmental law, in that an environmental impact report had to be prepared before more water could be provided the tribe.

The Court of Appeal disagreed with this argument, ruling that no EIR was actually required in order to comply with the California Environmental Quality Act. However, VRL also argued EID and the tribe could not, under California law, disregard the water restrictions, without LAFCO’s involvement. The Court of Appeal agreed with this argument.

For its part, while the tribe appealed the ruling to the Court of Appeal, EID agreed to prepare another EIR to evaluate the water impacts and support its application to LAFCO to remove the restrictions.

The EIR and application to LAFCO have been issued for public comment, and a hearing will likely occur this fall. In the meantime, the El Dorado County Superior Court already has ruled that EID can continue to provide the tribe water so long as EID works to secure removal of the restrictions.

Prior to this EIR, the tribe and two federal agencies had already prepared an environmental analysis evaluating the impacts of delivering water to the tribe’s gaming facility. That environmental document found that while the tribe could truck water into Red Hawk Casino on a daily basis, the environmental impacts associated with delivering water to the Rancheria by pipe were far less impactful.

“We hope LAFCO does the right thing, and removes the restrictions once and for all,” said Fonseca. “If it does not, we are confident a federal court will right this wrong, since the restrictions so clearly violate federal law, which is an issue the state court did not reach.”

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