The decision by U.S. District Judge Carlos Murguia in Kansas City, Kan., on Dec. 20 further jeopardizes a reservoir project that leaders of the northeast Kansas tribe say is critical for the tribe, The Topeka Capital Journal reported Tuesday.
Steve Cadue, tribal chairman, has lobbied for years to move the reservoir project forward and asked Gov. Sam Brownback to intervene.
"We are greatly disappointed in the decision," Cadue said.
In recent years the tribe has had to initiate conservation rules to maintain a supply of drinkable water. During a severe drought in August 2012, the tribe banned the use of treated water for lawns, gardens, swimming pools and car washes. Watering of livestock was limited to drawing from ponds or creeks, except for emergencies. The Kickapoo Fire Department was also then barred from using treated water for training exercises.
The tribe argues that the Plum Creek Reservoir project was integral to a 1994 watershed plan signed with the Nemaha-Brown Watershed Joint District No. 7. The tribe's reservation is almost entirely within the water district.
When the tribe was unable to obtain some of the non-Indian land needed for the Plum Creek project, it asked the water district to use eminent domain to procure the land. The water district refused.
The tribe filed a lawsuit in federal court June 14, 2006, relying on a provision of the watershed agreement it said mandated the district to use eminent domain to bring the contract to completion. Attorneys for the district argued that the contract didn't mandate use of eminent domain. Both sides petitioned Murguia for summary judgment. Murguia wrote in favor of the water district, saying the agreement only stated that eminent domain could be used, not that it must.
"The court finds that the agreement is unambiguous and that the plain language of the agreement does not require the district to condemn on the tribe's behalf," Murguia wrote.