As the U.S. Supreme Court pointed out some forty years ago in its opinion in Colorado River Water Conservation Dist. v. United States, “It is probable that no problem of the Southwest section of the Nation is more critical than that of scarcity of water.” The Supreme Court’s words still ring true today, as evidenced by the legal battle between the Agua Caliente Band of Cahuilla Indians and the Coachella Valley Water District over whether the tribe’s federally reserved water rights extend to groundwater. The case is now set to be decided by the Ninth Circuit Court of Appeals following a California district court’s decision that the Agua Caliente Indian tribe had a reserved right in groundwater underlying the tribe’s reservation.
Agua Caliente Sues Water District and Others in 2013 Over Groundwater Rights
In May 2013, the Agua Caliente tribe filed a complaint in federal court against the Coachella Valley Water District and several others seeking to have the court declare that the tribe has a federally reserved right to groundwater underlying the Coachella Valley, and to further enjoin the defendants from overdrafting the groundwater to the injury of the tribe. In their complaint, the Agua Caliente tribe claims that they have lived in the Coachella Valley since before California was admitted to the Union in 1850. The tribe sets forth that they have continually used both surface water and groundwater resources for “cultural, domestic and agricultural subsistence purposes,” including “stock watering and agricultural irrigation.”
Agua Caliente Says Their Water Rights are Senior to Those of the Defendants
Furthermore, the tribe claim that the “establishment of the Reservation pursuant to federal law impliedly reserved to the Tribe and its members the right to surface water and groundwater sufficient to accomplish the purposes of the reservation, including establishing a homeland for the Tribe and its members.” More specifically, the tribe claims their reserved rights “are the most senior” in the region, and, as a result, the tribe may prevent the defendants from adversely impacting the quantity and quality of their water.
Agua Caliente Tribe Claims of “Overdraft”
Beyond their claims of seniority, the Agua Caliente tribe alleges that the groundwater underlying the Coachella Valley is in a continual state of “overdraft,” meaning that the water flowing from the underground aquifer exceeds the water flowing into the aquifer. The defendants claim that they try to recharge the valley’s groundwater by importing water from the Colorado River. However, the tribe claims that water from the Colorado River is of inferior quality.
Lastly, the tribe alleges in its complaint that the “Tribe and its members have established a homeland in the Coachella valley, including housing, schools, government offices, and cultural and commercial enterprises,” for which the Tribe relies upon its reserved groundwater resources.” Accordingly, the tribe says it seeks relief in order to “satisfy the present and future needs of the Tribe and its members” and to protect the tribe’s reserved water rights from overdraft and degradation.
Parties Agree to Trifurcate Case
During the litigation of the case, the parties agreed to trifurcate the case into three phases. Phase I seeks to resolve the legal questions surrounding the Agua Caliente tribe’s federally reserved rights to groundwater under the Winters doctrine, as well as the tribe’s aboriginal rights to groundwater. The other two phases of the litigation are dependent upon a resolution of the tribe’s rights under Phase I. If the case ever proceeds to Phase III, the California district court will undertake the fact-intensive tasks of quantifying the Agua Caliente’s rights to groundwater and pore space, and crafting appropriate injunctive relief.
The Parties’ Cross-Motions for Summary Judgment
All four parties to the case filed motions for summary judgment. In their motion, the tribe argued that federal law recognizes the tribe’s reserved right to groundwater, and that the tribe also holds aboriginal title to the land in the Coachella Valley to which groundwater rights attach. The U.S. government’s motion echoes that of the tribe’s, emphasizing the supremacy of federal water rights over those created by state law. However, the government does not support the tribe’s claim of aboriginal ownership.
Conversely, the Coachella Valley Water District argued that Congress extinguished the tribe’s aboriginal groundwater rights, and that Winters rights impliedly reserved for the tribe do not extend to groundwater, and that even if they extend to groundwater, the purposes of the Agua Caliente tribe’s reservation will not entirely fail without a reserved right to groundwater. The Desert Water Agency’s motion mirrored that of the water district’s, contending that the tribe has no federal reserved right in groundwater, and the tribe’s aboriginal water rights claim was extinguished by statute long ago.
District Court Says Tribe Has Federal Reserved Right to Groundwater
On the parties’ cross-motions for summary judgment, the California district court ruled that the Agua Caliente tribe has a federally reserved water right in the groundwater underlying their reservation pursuant to the Winters doctrine. However, the district court determined that the tribe’s claim to an aboriginal groundwater right failed, explaining that “[t]he Act of 1851 extinguished the Tribe’s aboriginal occupancy right, and even if the Tribe re-established such a right it was not continuous and exclusive and continuous once the United States created the Agua Caliente’s reservation.” As a result, the district court said the tribe could not assert an “original occupancy right,” so defendants were entitled to summary judgment on the aboriginal issue. Following the district court’s decision, the defendant filed a petition for permission to immediately appeal the court’s summary judgment decision to the Ninth Circuit.
Winters Doctrine Front and Center on Appeal
On appeal, the key question will be the Court’s interpretation of the Winters doctrine. Under the Winters doctrine, when the federal government sets aside lands for a reservation, it impliedly reserves sufficient water to fulfill the purposes of the reservation. Even still, the Winters case involved only questions related to rights to surface water in rivers and streams, and does not even address federal reserved rights to groundwater.
In the time since Winters, a number of tribal reserved water right cases have been litigated and adjudicated as it relates to surface water sources. Only three cases, arising in state courts, have addressed the groundwater issue in the context of the Winters doctrine. And the determinations of the three state court cases ranged from finding no tribal reserved rights to groundwater (In re Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys.), to finding conditional reserved rights to groundwater (In re the General Adjudication of All Rights to Use Water in the Gila River System and Source), to finding fully unconditional reserved rights to groundwater (see Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults).
Despite Lack of Clarity in the Law, Tribes have Successfully Negotiated Rights to Groundwater
While the state court decisions fall on both sides of the groundwater issue, several tribes have been able to secure reserved rights to groundwater through water settlements. In fact, of the nearly 30 water settlements that were enacted between 1978 and 2010, approximately one-half contain some provisions addressing rights to groundwater for tribes; though there has been little uniformity in the groundwater provisions of these water rights settlements. For example, some of these settlements specified a quantity of groundwater for use or set a limit on tribal pumping of groundwater, while other settlements provided tribal communities with the express right to use groundwater beneath their lands. But will these settlements have any impact on the Ninth Circuit’s decision?
Water District Argues Tribe Does Not Impliedly Exist
In its appellate brief, the water district argues that the U.S. Supreme Court has narrowly construed the reserved right doctrine because the doctrine conflicts with Congress’s policy of deference to state water law. The water district says that, under this narrow construction, the tribe’s claimed reserved right in groundwater fails. The water district claims that the tribe’s “claimed reserved right is not necessary to accomplish the primary reservation purposes and prevent these purposes from being ‘entirely defeated,’ and thus does not impliedly exist” under the Supreme Court’s narrow construction of the reserved right doctrine.
Agua Caliente Tribe Argues Government May Reserve Groundwater
In response, the Agua Caliente tribe asserts that “[a] federal reservation of land impliedly includes the reservation of water necessary to accomplish the purposes of the reservation,” and that “[a] Winters right is a fully vested and perfected federal property right in reserved water that exists from the date of a reservation’s establishment.” The tribe says the district court correctly concluded “like every other court that has considered a similar question, that water is necessary to accomplish the purposes of the Agua Caliente Reservation.” Similarly, the tribe claimed the district court also correctly concluded that the Winters doctrine applies to groundwater, and that the Ninth Circuit held more than forty years held that “the United States may reserve not only surface water, but also underground water.”
U.S. Government and Amici Lend Support to Tribe’s Arguments
Ninth Circuit’s Decision Could Have Lasting Impact on Western Water Law
All eyes will be fixed on the Ninth Circuit regarding its decision in the Agua Caliente case because it may have a significant impact on Western water law, including a number of settlements between other water conservancy districts and various Indian tribes. If the Ninth Circuit upholds the District Court’s determination of federal reserved rights to groundwater for the Agua Caliente Tribe, the case will likely go back to the District Court to determine the limits of the reserved groundwater rights and how to quantify those rights.
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