Federal Appeals Court to Determine Tribal Reserved Rights to Groundwater

by Christopher W. Payne

The Ninth Circuit Court of Appeals will soon determine whether the Agua Caliente Band of Cahuilla Indians has a federal reserved right to groundwater in a water rights case that could set a precedent for tribes across the West.  The case is entitled Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 WL 1600065 (C.D. Cal.).  The key question before the court is whether the Agua Caliente Tribe holds a federal reserved right to groundwater beneath its Reservation in Palm Springs, California.

The Agua Caliente Tribe filed a complaint against the Coachella Valley Water District and Desert Water Agency in the U.S. District Court for Central California in May 2013.  In the complaint, the Tribe alleges that excessive groundwater pumping by the water districts has caused overdraft of the Coachella Valley groundwater basin and asserts a federal reserved right to groundwater with a priority date of time immemorial for the purpose of providing and sustaining a tribal homeland for present and future purposes.

On cross-motions for summary judgment, the District Court ruled in 2015 that the Agua Caliente Tribe has a federal reserved water right in groundwater underlying the Reservation.  On appeal before the Ninth Circuit, the water districts are seeking to overturn the District Court’s decision on the grounds that a reserved water right in groundwater does not exist because it is not necessary to accomplish the primary purposes of the reservation.

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. Winters v. United States, 207 U.S. 564 (1908). The Winters case involved rights to surface water in rivers and streams but did not expressly address federal reserved rights to groundwater.  Since Winters, numerous tribal reserved water right cases have been adjudicated for surface water sources in both federal and state courts.  However, only three state court cases have directly addressed federal reserved rights for groundwater.  And the determinations of the three state court cases ranged from finding no tribal reserved rights to groundwater (see In re Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys., 753 P.2d 76, 100 (Wyo. 1988)), to finding conditional reserved rights to groundwater (see In re the General Adjudication of All Rights to Use Water in the Gila River System and Source, 989 P.2d 739 (Ariz. 1999)), to finding fully unconditional reserved rights to groundwater (see Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults, 59 P.3d 1093 (Mont. 2002)).

Despite the inconsistency of the application of federal reserved rights to groundwater in the courts, some 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.

Because federal reserved water rights are typically higher in priority than state-based water rights, the Ninth Circuit Court of Appeals’ decision in Agua Caliente could have a significant impact on Western water law.  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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