Escondido, CA

City, tribes reach historic agreement on water rights

Although some details remain to be worked out, a lawsuit that has gone on so long that most of the people who initiated it are dead, will be settled very, very soon.

As is often the case, the villain in this piece is the federal government, which, about a century ago planted the seeds of a festering legal wound by giving water rights for about 16,000 acre feet of water to the five area tribes when it created their reservations — and then gave the same water rights to the cities of Vista and Escondido — or rather their ancestor water agencies.

Even as the United States was forming Indian reservations in San Diego County in latter part of the 19th century and the early part of the 20th century and giving them water rights, it was giving the same rights to the non-white populations approval of the water and power projects that today serve Vista and Escondido. Beginning in the 1890s the newly formed City of Escondido (through ancestor agencies that included the Escondido Irrigation District and Escondido Mutual Water Company) began diverting water from the San Luis Rey River through the Escondido Canal, which crosses several reservations to Lake Wohlford.

On Wednesday, January 25 the Escondido City Council is due to vote on a “Global Agreement Between the City of Escondido and the Vista Irrigation District.”

Between 1912 and 1998 Vista and Escondido joined in a total of 18 agreements that affected various aspects of the local water system that included facilities owned by Escondido and the VID and allowed water from the Warner Basin to flow into Dixon Lake Treatment Plant and from there to Escondido and VID.

The new agreement recognizes the Settlement Agreement between Escondido, VID and the five neighboring Indian bands, including Rincon, San Pasqual, La Jolla, Pauma and Pala.

In the 1960s the tribes sued VID and the City of Escondido to reclaim their rights to the San Luis Rey Water. Most who initiated those lawsuits died before the issues were resolved.

In the 1980s former Congressman Ron Packard did his best to solve this situation. Last year Congressman Duncan Hunter’s legislation settling the Sun Luis Rey lawsuit passed Congress. One of President Barrack Obama’s final acts was signing that bill.

According to Escondido City Attorney Jeffrey Epp: “I understand that the lawsuit still has some details to be worked out.” But nothing that will stop the process.

Duncan Hunter Deputy Chief of Staff Mike Harrison told The Times-Advocate: “Obviously, the congressman is very pleased to see the legislation finally be implemented. This is a longstanding issue. Water is very important in our region. Any action that can be resolved to such a longstanding issue we are happy to see resolved. Former Congressman Ron Packard was the champion of this. He should be given credit for his leadership and we are thankful that we were able to get it done.”

As Epp describes it, “the benefits fall into two major areas. The first is it preserves and protects an important supply of local water and second it is a high-water mark in our cooperation and teamwork with the surrounding Indian bands.”

What started as a bitter adversarial relationship in the 1960s eventually evolved into the warring parties realizing that the true cause of the problem was the federal government.

Epp told The Times-Advocate: “The framework at that time was that the Indian bands sued the Escondido Mutual Water Co. and Lake Henshaw Water Company, Escondido and Vista for essentially taking the waters of the San Luis Rey River. The paradigm shift that made this settlement possible, was that the U.S. had licensed the cities to use that water at the same time it created the reservations. So essentially the U.S. gave the same water away twice.”

To settle this problem, the parties had to involve the U.S. government. It agreed to replace the water and make it available so the cities wouldn’t be harmed. But where to find the 16,000 AF?

“Where do you find another sixteen thousand acre feet?” asked Epp rhetorically. “It took the better part of a decade to find the answer.” The answer was to line the Coachella Canal and the All- American Canal, which brings water to California from the Colorado River. This saved 100,000 AF from evaporation, and 16,000 was set aside for the settlement. Many other entities benefited from lining those canals, but the tribes were first in line.

“Once we had the other water supply it became a matter of negotiating an agreement,” said Epp. “It covered how we were to share the supplemental water and local water so the bands and the U.S. entered into an agreement that was signed in 2012. Then we needed to have legislation — that was where Duncan Hunter came in.”

All parties signed off on the agreement and earlier this week Escondido filed in federal court joint motions dismissing the 42-year old litigation.

In the early years of the decades-long litigation it went to the U.S. Supreme Court but by 1985 no final decision had been reached and all the parties determined that they should reach a settlement.

Congressman Packard’s San Luis Rey Indian Water Rights Settlement Act resolved the dispute. The Act provided for finding the supplement amount of 16,000 AF and to pay the bands $30 million in damages.

Once the federal government identified lining the canals as the source of the water, litigation over that action required several more years to settle.

“Lo and behold forty years go by,” said Epp.

Bo Mazzetti, chairman of the Rincon Band of Mission Indians, tells how his father, the late Max Mazzetti, was one of the original litigants.

“This brings us one step closer to vitalizing an issue that started in 1967 and 1969 for the tribes,” said Mazzetti. “The federal government caused the problem by creating the reservation and giving it the water and then giving it to Vista and Escondido. We became very hostile towards each other. Since then we have become good friends and allies and worked well together.”

He adds, “My biggest regret is that not one of the original people who started this is alive to see it finished. They have all passed away. It has been fifty years we have been trying to settle this. When in 1988 Packard passed the act that promised to find the 16,000 acre feet, no one knew it would take twenty years to find it! When we found it the federal government tried to rewrite the agreement. We spent a long time fighting what the definition of supplemental meant. We all know what it means, but government attorneys thought it meant replacement. There was a seven-year battle on that one word.”

And now, says Mazzetti, “We’re almost there. The final step is to file in federal district court, which was done by the City of Escondido. It had been an inactive case, now they reopened the case and all the parties are in agreement and then the court can rule and close the case. The only thing left is to get a Federal Energy Regulatory Commission (FERC) license to operate the Bear Valley hydroelectric plant just below the Lake Wohlford dam.”

And perhaps, sometime soon, after sixty years of water, the water will begin to flow towards the Indian reservations.

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