Author: Adrian LeCesne
Editor: Michael Fife
The Ninth Circuit Court of Appeals recently upheld a decision affirming the Agua Caliente Band of Cahuilla Indians’ (the “Tribe”) right to groundwater in the Coachella Valley. The court found that the Tribe holds a federal “reserved right” to groundwater based on the intended agrarian purposes of the reservation when it was created in 1876. Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, No. 15-55896, D.C. No. 5:13-cv-00883-JGB-SP (2017) (available here), upholding the lower court decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et al, EDCV 13-883-JGB (March 24, 2015) (available here).
The case revolves around the Tribe’s complaint that the Coachella Valley Water District and the Desert Water Agency (the “Agencies”) extract water from the local sub-basin that is in a state of continual overdraft. The Tribe asserts that the Agencies’ replacement of groundwater with water from the Colorado River is unsatisfactory because the Colorado River water is more saline than the aquifer and will cause water quality degradation over time.
The Court of Appeals analyzed two significant questions:
- whether a water right was created under the reserved rights doctrine as established by Winters v. United States, 207 U.S. 564, 575-78 (1908), and
- whether that water right extends to groundwater underlying the reservation.
The Court of Appeals found that Winters establishes that the purpose of the reservation is controlling. Here, a water right was necessary to effectuate the purposes of the reservation; namely, to provide a permanent home for the Tribe.
The Agencies argued that United States v. New Mexico, 438 U.S. 696 (1978), requires that the court decide a reserved right exists only where the water is necessary to fulfill the primary purpose of the reservation, and where other sources of water then available do not meet the reservation’s demands. The Court of Appeals declined to interpret New Mexico so narrowly, holding that Congress retains authority to reserve unappropriated water for use on appurtenant lands withdrawn from the public domain for specific federal purposes regardless of whether other resources are provided pursuant to state law.
The court held that the Tribe had a senior water right in the basin because the Executive Order establishing the Tribe’s reservation was intended to provide the Tribe with a permanent home, and that in such an arid region, access to water is necessarily implicated in that purpose.
In its analysis, the court also found there was no reason to treat groundwater and surface water differently for the purposes of the Winters doctrine. It stated that the Winters doctrine was developed to provide sustainable land for Indian tribes in arid parts of the country, that life in many locations in the western United States is viable only with access to groundwater, and that there are no appellate authorities on this issue. While unappropriated water must be “appurtenant” to the reservation, this simply limits the reserved right to those waters that are physically attached to the reservation, which does not limit the right to surface water only. The court even stated that the closest case to an applicable precedent, United States v. Cappaert, 508 F.2d 313, 317 (9th Cir. 1974), “hinted that impliedly reserved waters may include appurtenant groundwater.” Agua Caliente Band v. Coachella Valley Water Dist., No. 15-55896, D.C. No. 5:13-cv-00883-JGB-SP (2017) at 18. It held, therefore, that the Winters doctrine encompasses both surface water and groundwater appurtenant to reserved lands.
The Agencies argued that because the Tribe is already entitled to surface water from the Whitewater River System pursuant to the correlative rights doctrine, and never drilled for groundwater, a federal reserved right is unnecessary to protect the original purposes of the reservation. The court rejected the Agencies’ arguments for three reasons. First, state water rights are preempted by federal water rights; second, a failure to use a federal water right does not destroy that right; and third, under the New Mexico analysis mentioned above, it is not necessary that the water right is currently needed to sustain the reservation, but rather, the issue is whether having a water right was envisioned as necessary for the reservation’s purpose at the time the reservation was created.
The case will now return to the trial court for further proceedings.
Other groundwater users and managers should review this case carefully as it could impact future decisions on tribal groundwater rights as they relate to California’s Sustainable Groundwater Management Act and formulating Groundwater Sustainability Plans thereunder.
This document is intended to provide you with general information regarding the Ninth Circuit Court of Appeals decision affirming the Agua Caliente Band of Cahuilla Indians’ right to groundwater. The contents of this document are not intended to provide specific legal advice. If you have any questions about the contents of this document or if you need legal advice as to an issue, please contact the attorneys listed or your regular Brownstein Hyatt Farber Schreck, LLP attorney. This communication may be considered advertising in some jurisdictions.