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Arbitrator Admonishes Water Authority After it Sued Five Tribes

The San Diego County Water Authority tried to interfere with the delivery of water to five local Indian tribes based on illegal actions and illogical arguments, an arbitrator determined.

Photo by Sam Hodgson

The San Diego County Water Authority tried to interfere with the delivery of water to five local Indian tribes based on illegal actions and illogical arguments, a former federal judge has ruled.

Last year, five San Diego Indian tribes got back the rights to water taken from them a century ago. In response, the San Diego County Water Authority this spring blamed the tribes for cutting into its bottom line and sued them for $2 million.

The County Water Authority and the tribes argued in front of Oliver Wanger, a retired judge who hears arbitration disputes for the American Arbitration Association. Arbitration is a private legal system used to resolve disputes.

In a Dec. 14 ruling, Wanger sided with the tribes – the La Jolla, Pala, Pauma, Rincon and San Pasqual Bands of Mission Indians.

Wanger is famous in water industry circles for a series of court rulings that took water from farmers and cities across California to protect an endangered species of smelt that lurks in Northern California’s rivers.

In his arbitration ruling, he said the agency ignored the “undisputed and unambiguous purpose” of a law Congress passed to ensure the tribes could receive and use their water.

Wanger wrote that “it is beyond comprehension that SDCWA, with a $900 million budget, competent management, and skilled attorneys” did not find a way to deliver the water to the tribes without a hitch.

Bo Mazzetti, president of the San Luis Rey Indian Water Authority, which represents the five tribes, said the dispute was ridiculous from the start.

“There was just a lot of legal expenses, we should have just been able to sit down and work it out,” he said.

The case cost at least $72,000 in court fees – half paid by the tribes, half paid by the County Water Authority. It also absorbed time of the County Water Authority’s in-house counsel and officials from several other water agencies.

The tribes lost their water a century ago when North County settlers began drying up the San Luis Rey River. For 50 years, the tribes fought to get back their water — water that’s used today by Escondido and Vista.

In a convoluted solution to the tribes’ problem, they now receive water from the Colorado River over 100 miles away to replace the water they lost from their backyard.

According to that deal, which took decades to work out, the tribes are supposed to say by April 1 how much water they want each year. That way the Metropolitan Water District of Southern California and the County Water Authority can deliver it from the Colorado River. But the tribes missed the 2017 deadline because they didn’t know until May 17, 2017, that they had finally won access to the water after years in court and waiting on Congress. Understandably, after waiting so long for it, they wanted the water right away.

The County Water Authority viewed this as an unexpected hit to its bottom line. That’s because the tribes planned to sell the water to Escondido and Vista, which meant less water that the County Water Authority could sell to Escondido and Vista. The County Water Authority argued the tribes should repay it for lost sales in 2017.

While the County Water Authority points to wording in a contract that prompted it to litigate the issue, it’s hard to see the delay as anything but another instance of Indians again being pushed around by settlers and government officials.

In an interview earlier this year, Mark Hattam, the County Water Authority’s general counsel, said that wasn’t the case and “trying to turn it into some sort of cosmic issue is silly.”

Nevertheless, Wanger took the County Water Authority to task for its actions against the tribes.

The ruling was another legal setback for the County Water Authority, which spent much of the past decade in court unsuccessfully trying to dramatically reduce the price it pays for some water from the Colorado River.

Hattam said the County Water Authority took the tribes to court because it needed to look out for its ratepayers.

“The Water Authority spent a total of about $36,000 in arbitration to try and recover over $2.1 million for our region’s ratepayers,” he wrote in an email.

Hattam said the agency was disappointed but “appeals from even mistaken arbitration rulings are very rare as they are procedurally disfavored. Therefore, this matter is now concluded from the Water Authority’s perspective.”

Robert Pelcyger, an attorney for the tribes who has been working on the case for nearly 50 years, said that after decades of work he hoped there would now be smooth sailing.

“Hopefully there won’t be another controversy, but you know you enter into a contract and the parties have to perform,” he said.

Mazzetti said he tried to work out a deal with County Water Authority General Manager Maureen Stapleton before the dispute ended up in front of an arbitrator. But, he said Stapleton told him the lost sales, had she known in time, would have prompted her to ask for a rate increase from county water users, though the amount in dispute was only about 0.1 percent of her agency’s budget.

“There was obviously no logic behind those statements at all,” Mazzetti said. “It also appears she wanted to fight just to fight.”

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