Kickapoo Water Rights Claim Fails

Here are the materials in Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Black (D. Kan.):

248 Watershed District Motion for Summary J

291 Kickapoo Motion for Summary J

301 DCT Order

An excerpt:

As is evidenced by the briefing, this case has a long and complex factual background. However, the facts material to the pending motions are few and uncontroverted. The Kickapoo Indian Reservation (“Reservation”) lies almost entirely within the District’s boundaries. The Tribe and the District entered into the Watershed Plan and Environmental Impact Statement for the Upper Delaware and Tributaries Watershed (“Agreement”) in 1994 to serve as co-sponsors of a project aimed to carry out works of improvement for soil conservation and for other purposes, including flood prevention. The parties agreed to co-sponsor the project after failed attempts by each party to sponsor the project on its own. The parties reached the Agreement following a procedure established by the United States Department of Agriculture’s Soil Conservation Service (“SCS”), now known as the National Resource Conservation Service, under what is referred to as P.L. 83–566 (the Watershed Protection and Flood Prevention Act, 16 U.S.C. § 1001 et seq.). Many years of planning and negotiation by both parties and numerous other contractors, government officials, and agencies preceded the Agreement. In addition to twenty floodwater retarding dams and other various improvements, the Agreement included plans for a multipurpose dam with recreational facilities, otherwise known as the “Plum Creek Project.”

On multiple occasions, the Tribe asked the District to exercise its power of eminent domain to condemn non-Indian-owned land for the Plum Creek Project that the Tribe had been unable to acquire on its own. The District declined the Tribe’s request each time. The Tribe filed this water rights action on June 14, 2006, seeking declaratory relief, injunctive relief, compensatory damages, and specific performance. In essence, the Tribe claims that the Agreement is a binding contract that obligates the District to condemn 1,200 acres of land on the Tribe’s behalf to build the Plum Creek Project.

The parties agree that the issue before the court in both summary judgment motions boils down to this: Does the Agreement unambiguously require the District to exercise its eminent domain powers on the Tribe’s behalf to acquire non-Indian land necessary to build the Plum Creek Project? The Tribe contends the answer is yes, and the District argues that the answer is no.

Prior posts here and here.

This entry was posted in Author: Matthew L.M. Fletcher, Research, water rights and tagged , , , , , , , , . Bookmark the permalink.

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