With opening of Red Hawk Casino less than eight months away in Shingle Springs, a key water-supply decision faces directors of El Dorado Irrigation District.

The decision will come in the wake of a blistering federal critique of past policymaking in El Dorado County as it has affected the Shingle Springs Band of Miwok Indians.

Before EID directors could elect to supply requested water for the Red Hawk Casino, they would need to override a long-standing ruling by El Dorado County’s Local Agency Formation Commission concerning the Shingle Springs Rancheria, a policy to which EID has clung for years even in the face of threatened litigation by the Miwok tribe.

“(The irrigation district) shall make water available for residential use only … and for tribal use … limited to that necessary to serve a community of 40 residential lots,” a July 1988 LAFCO ruling stated.

Fueling a revisiting of the LAFCO restrictions April 28 was an opinion issued March 5 by counsel for the federal Department of the Interior, which tends to support the tribe’s request for EID water. The federal solicitor general’s analysis is bluntly critical of past policy-making in El Dorado County.

“There appears to be some evidence the LAFCO conditions were imposed even though water was available for delivery to the rancheria, which suggests the conditions may have been imposed, at least in part, to regulate use of the land,” the opinion states.

The opinion says essentially that counties or states cannot regulate land use on a reservation except when the U.S. Congress expressly applies a local law to a piece of land. It cites federal immunity from local and state laws, including in the area of land use on federally owned Indian reservations.

The 1988 LAFCO ruling came at a time when the notions of tribal sovereignty and federal immunity apparently were poorly understood by some public officials and county residents. During the unfolding of a lawsuit to stop the casino by the county, officials and residents mounted a steep learning curve.

In April 1988, when the LAFCO board first heard a petition to annex the Shingle Springs Rancheria, agency Commissioner Jack Sweeney said he wanted “to ensure some regulation over its development policies,” an EID staff report states. On Sweeney’s motion, the board continued the annexation matter “until county counsel researches the ability of local government agencies to control development on this property.”

A local group funded partly by Lake Tahoe casino interests joined the county’s suit to stop the casino, with members frequently arguing no more than that a casino would be “inappropriate” near Shingle Springs.

The EID board April 28 also heard public comment on the question of casino water supply by the district. Spokeswoman Deanne Kloepfer said comments were mixed, for and against. She said the board, which took no action April 28, will revisit the solicitor general’s recent opinion, likely during the second meeting of this month, on May 28.

“In general, we agree with the legal principles espoused by tribal counsel concerning federal preemption of state laws pursuant to the Property Clause and Supremacy Clause of the U.S. Constitution,” the opinion states. “More specifically, with regard to local regulation of the tribe’s rancheria, to the extent the regulations conflict with the federally prescribed use of the land, we agree they may be preempted by federal law.”

The EID board at the workshop also reviewed a staff report that said supply will remain adequate for all distinct customers even if EID supplies the rancheria with casino water.

Tribal Chairman Nicholas Fonseca said Thursday he will get water from whatever sources necessary, even tanker trucks, to run the Red Hawk Casino.

“I need 135,000 gallons a day, but I don’t want to be a trucking-company owner,” Fonseca said. “We’ve been trying to get water from EID for a long time.”

Jose Henriquez, current LAFCO executive director, said the 1988 agency restrictions have always been controversial. The recent Interior Department opinion is “one more thing added to the pile,” he said.

The Telegraph’s Roger Phelps can be reached at rogerp@goldcountrymedia.com, or post a comment at folsomtelegraph.com