Tribe must submit to state water control

WINNEMUCCA - Saying even the federal court has no business interfering with his authority over the Humboldt River decree, District Judge Richard Wagner on Monday ordered the South Fork bank of the Te-Moak tribe to submit to state control of the river.

The ruling brings to a head the battle over the tribe's decision two years ago to prevent state water commissioners from crossing their land to control the headgates of the Humboldt River. State officials say the tribe is taking whatever water it wants and ignoring other water rights owners.

When Wagner ordered them to allow the water commissioner on their land, they went to federal court claiming tribal sovereignty.

In the two years since, state officials say the tribe has had complete control over the headgates of the Humboldt, irrigating whenever it wants and ignoring the rights of other water users.

Wagner got the case back last month when U.S. District Judge Edward C. Reed sent the case back to state court. But Reed's order said he was retaining "concurrent jurisdiction."

Wagner said the federal court has no right to jurisdiction over the Humboldt River Decree, which has been managed by the Sixth Judicial District Court in Winnemucca for more than 50 years.

"I understand that federal judges are gods," said Wagner. "But I have jurisdiction in this instance and everyone seems to ignore that."

And he rejected the argument over whether the tribe has sovereign immunity.

"My position doesn't rest on immunity at all," he said.

He said the tribe accepted the Humboldt decree and control by his court when they received the water rights like anyone else.

"When you go to a foreign nation and buy property, you're subject to the jurisdiction of the court there," he said. "Is that so hard to understand?"

Rodriguez argued the tribe has agreed to state control of the Humboldt's waters until their sovereignty arguments are heard in the U.S. Supreme Court. He said no injunction and no sanctions are needed.

Deputy Attorney General Paul Taggart said the tribe has consistently broken its word. He said the resolutions allowing state water commissioners access and control could be changed in 24 hours, that tribal chairman Marvin McDade has lied to the court in the past and cannot be trusted.

Wagner agreed McDade had absolutely no right to arrest the water commissioner last year and that there is evidence the tribe has illegally taken water and irrigated its lands.

"There is no question there has been irreparable damage to other water rights holders," he said.

He ruled his court has exclusive jurisdiction over the Humboldt River water and ordered the tribe to submit to his control. He ruled that not only must the tribe give his commissioners access and let them control the water but that tribal police must protect them while they do so. If they don't Wagner, said he will order state or county police onto tribal land to protect them.

He said if McDade and the tribe don't cooperate, they will be held in contempt, fined up to $10,000 for not cooperating with his control and that McDade will go to jail.

He said he isn't discriminating against the tribe, just stopping them from breaking the rules.

"They are to be treated as any other water user," he said. "I want no question that they are entitled to their fair share of water."

"I'm not out to hurt people," he said. "I'm here to bring compliance to a lawful order of this court that has been in place 50 years."

Rodriguez said the tribe will comply with state control while it takes the sovereignty issue to the Supreme Court. he said the issue isn't Wagner's control over the river but his control over the tribe.


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