Several months ago, an earlier post in this blog described a decision by the Ninth Circuit Court of Appeals that recognized a federal reserved water right to groundwater [see Ninth Circuit Holds that Federal Reserved Water Rights Extend to Groundwater]. The Ninth Circuit’s decision has very significant implications for water users across the western United States who rely on state law-based water rights. The federal reserved water rights doctrine is one of the rare exceptions to the general rule that state law controls allocation of water in the western United States. When a reserved right is recognized, that right will often conflict with water rights granted under state law, threatening to disrupt such rights and causing uncertainty for water users dependent on state law. By broadly recognizing a reserved right to groundwater, the Ninth Circuit’s decision extended this uncertainty to a water source that has had comparatively little scrutiny under the reserved water rights doctrine.
In light of these implications, the defendants in the case, the Coachella Valley Water District and the Desert Water Agency (collectively, the Districts), recently filed petitions for certiorari requesting that the United States Supreme Court review and overturn the Ninth Circuit’s decision. Although the Districts filed separate petitions, both raise similar issues. The Districts assert that the Ninth Circuit opinion conflicts with opinions from a number of other courts, including the supreme courts of Wyoming and Arizona (a state within the Ninth Circuit). The Districts also argue that the opinion threatens to undermine state law-based water rights by imposing a federal law concept – the reserved water rights doctrine – on largely incompatible state law systems for allocating groundwater resources. Finally, the Districts argue that the Agua Caliente Tribe does not need a reserved right to groundwater because its rights to groundwater are adequately protected by California state law.
On October 13th, the Agua Caliente Tribe (the Tribe) and the United States, acting as the federal trustee for the Tribe, filed briefs in opposition to the Districts’ petitions. The Tribe and the United States disputed each of the arguments raised by the Districts, asserting that the Ninth Circuit opinion is consistent with the vast majority of cases addressing the reserved water rights doctrine, that federal law controls over any conflicting state laws, and that California law does not adequately protect the Tribe’s right to access groundwater underlying its reservation. The Tribe and the United States urged the Supreme Court to reject the petitions for certiorari and allow the case to continue in the courts below.
The Districts’ petitions have drawn the attention of a number of non-parties who filed amicus curiae briefs with the Supreme Court expressing concerns regarding the Ninth Circuit’s opinion. Most notably, a coalition of ten states submitted a brief arguing that the Ninth Circuit’s holding would be incompatible with, and therefore undermine, state-law groundwater regimes. Interestingly, the coalition of states included Wisconsin – a state that does not apply the doctrine of prior appropriation that is common among western states. The coalition’s brief also provides an example of potential conflict with state law doctrines using Minnesota – another state that does not apply the doctrine of prior appropriation – to illustrate the kinds of problems that could arise if the Ninth Circuit’s decision is allowed to stand. In doing so, the coalition emphasized the potentially nationwide implications of the case.
The Supreme Court has not yet acted on the petitions for certiorari, but can be expected to do so in the near future. If the Court accepts the petitions, it will establish a schedule for briefing on the merits, and will place the case on its calendar for oral argument. Accepting the petition would give the Court the opportunity to further refine the reserved water rights doctrine, which it last considered in the late 1970s. With conflicts over water, coupled with frequent droughts, increasing throughout the United States, any clarifications provided by the Court would be most helpful.
However, the Supreme Court accepts a very low percentage of petitions for certiorari. If the Court declines to accept these petitions, litigation concerning the claims of the Agua Caliente Tribe will continue in federal district court. In fact, regardless of the fate of the petitions, further litigation is the district court is already underway. By agreement of the parties, the case was split into three distinct phases, the first of which resulted in the Ninth Circuit decision issued earlier this year.
Despite the pending petitions for certiorari, the district court has initiated litigation on the second phase of the case and instructed the parties to brief three additional issues: (i) the appropriate legal standard for quantifying the Tribe’s reserved water rights; (ii) whether the Tribe is entitled to protection of water quality as part of a reserved right to groundwater; and (iii) whether the Tribe owns the “pore space” above the current elevation of the aquifer underneath its reservation. No matter what the Supreme Court does regarding the petitions for certiorari, these new issues are likely to result in additional important, and potentially controversial, rulings that are also likely to have serious implications for water users across the west.