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LAFCO clears legal block to tribe’s water

By
From page A3 | December 10, 2012 |

The Shingle Springs Band of Miwok Indians reported that its decades-long effort to have the same rights to water as any other user in the El Dorado Irrigation District is finally over.

On Wednesday, Dec. 5,  the Local Agency Formation Commission, a local agency that determines EID’s service area, voted to remove restrictions that it placed on the tribe’s water service long ago.

Specifically, when the tribe sought water service from EID in 1988, LAFCO purported to restrict the amount of water the tribe could receive, restricting it to residential purposes (amounting to enough for only 40 residential lots) and no commercial purposes.

The purpose of the restrictions was to preclude any economic development on the tribe’s lands, since water is needed for commercial operations. By a 6-1 vote Wednesday night, LAFCO removed the restrictions that have long plagued the tribe.

“We could not be happier today,” said Nicholas Fonseca, chairman of the Shingle Springs Band of Miwok Indians. “We have worked for many years to simply be treated like any other water customer, and remove what are obviously unfair and we believe illegal restrictions on the tribe. Last night’s vote was a long time coming, and justice finally prevailed.”

The tribe had worked with EID and the United States Department of Interior to remove the restrictions, through a formal application to LAFCO. Prior to that formal application, the Department of Interior had issued an opinion that concluded the discriminatory treatment of the tribe violated federal law. On the basis of that opinion, and an EID policy that provides water on a “first come, first serve” basis, the tribe and EID entered a Memorandum of Understanding in 2008 that would provide the tribe the same water rights as any other customer.

“Our choice at the time was to sidestep LAFCO, or sue LAFCO,” said Chairman Fonseca. “We chose what appeared to be the most reasonable choice, which was to proceed in good faith with an agreement with EID.”

In exchange for water service from EID under the MOU, 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 Red Hawk Casino (Voices for Rural Living) challenged the tribe’s MOU with EID in state court, and without deciding the legality of the restrictions, a Court of Appeal recently ruled that EID and the tribe had to formally ask LAFCO to remove the restrictions.

“So EID filed a formal application,” said Chairman Fonseca. “And with LAFCO’s action last night, VRL’s legal challenge appears to be moot, and as soon as that case is dismissed, we can all move on.”

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