UPDATE: U.S. Supreme Court Denies Cert. in Indian Reserved Groundwater Rights Case

shutterstock_371332990By:      Ted Griswold | Partner | ted.griswold@procopio.com

The U.S. Supreme Court today (November 27, 2017) upheld a key decision affecting Native American tribal rights. Last March, we posted regarding the remarkable Ninth Circuit decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (849 F.3d 1262 (2017)), in which the Ninth Circuit affirmed that the federal “reserved rights” doctrine for water established in the seminal case of Winters v. United States, 207 U.S. 564 (1908), applies to groundwater (see here). As expected, the case was appealed to the U.S. Supreme Court by the defendant water agencies; the High Court has declined to hear the case, however, and that denial of certiorari upholds the Appellate Court’s determination that the Winters doctrine applies to groundwater on Tribal Reservations.

The Winters doctrine states that when the United States established a reservation for Tribal purposes, it impliedly included with that reservation “a reserved water right in unappropriated water which vests on the date of the reservation and is superior to the rights of future appropriators.” (Cappaert v. United States, 426 U.S. 128, 138 (1976)). Attorneys for Agua Caliente Band successfully argued that the Winters doctrine is based on the reservation’s need for water, and not whether that water occurs above or below the surface of the land. This position was consistent with a majority of district court cases considering the matter; however, this is the first appellate decision to confirm the applicability to ground water. The Agua Caliente reservation is one of several western Indian reservations established in desert areas, with little surface water flow.

With the Winters reserved ground water rights confirmed for Agua Caliente, the District Court case will move forward with the next two phases: (1) whether the reserved water right includes the right to maintain the quality of the groundwater, and (2) the quantity of groundwater that was reserved. The former issue–the protection of water quality of reserved water rights–emanates from the Tribal concerns that the groundwater aquifer, which is also used by the Desert Water Agencies, has been degraded by the Agencies through over use and recharge activities. If successful in establishing their ability to protect the quality of the water, Agua Caliente could seek compensation for the damage to its water source. Like most water law cases, that decision may not come quickly.

Ted Griswold

Ted Griswold is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.

Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater

Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater

By:      Walter E. Rusinek | Senior Counsel | walter.rusinek@procopio.com

For the first time, a federal appellate court has held that that the federal “reserved rights” doctrine for water established in the seminal case of Winters v. United States, 207 U.S. 564 (1908), applies to groundwater.  In Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, the Ninth Circuit Court of Appeals upheld the trial court’s grant of summary judgment to the Tribe on the reserved rights issue in the first phase of the trial. The remaining two phases of the trial will address whether that reserved right includes the right to maintain the quality of the groundwater and the quantity of groundwater that was reserved.

Relying on Winters, the Ninth Circuit held that when the Tribe’s reservation was established by Executive Orders, those actions reserved an amount of water “necessary to accomplish the purposes of the reservation.”  The “primary purpose” for the Reservation “was to create a home for the Tribe, and water was necessarily implicated in that purpose.”  The Winters doctrine applied to groundwater because a Reservation “without an adequate source of surface water must be able to access groundwater.”  The reserved rights doctrine thus applies to “both surface water and groundwater appurtenant to the reserved land.”

The Court rejected the District’s argument that the decision in United States v. New Mexico, 438 U.S. 696 (1978) required that the Court determine whether groundwater was necessary to fulfill the “primary purpose” of the Reservation in deciding whether a reserved right to groundwater exists at all.  The Court also rejected the District’s arguments that there was no reserved right because the Tribe had the right to pump groundwater under California law, it had not yet pumped any groundwater, and it had rights to surface water.  The Court found all those points irrelevant because the right was limited only by the government’s intent in creating the Reservation.  That conclusion reflected previous decisions applying the Winters doctrine to surface water.

While the Court confirmed that Tribes have reserved rights in groundwater, it did not address the remaining trial court issues, including the amount of groundwater reserved.  The Court acknowledged that the New Mexico primary-secondary analysis could be applicable in that process.  Under New Mexico, which concerned reserved rights on forest lands not a Native American Reservation, the quantity of water reserved is to accomplish the “primary” purpose of the reservation and water needed for “secondary” purposes must be obtained under state law.

The Court’s confirmation that the Winters doctrine applies to groundwater is a significant victory for Tribes.  That is especially true for Tribes in the arid west where groundwater may be the sole or primary source of water for the Reservation.

In addition, the Court’s finding that the Reservation was created to establish a homeland for the Tribe provides a broad and evolving basis to quantify the amount of water reserved.  Most courts had held that the purpose of reservations was for agriculture and that the method to quantify the amount of water reserved was to calculate the “practicably irrigable acreage” or “PIA” on each reservation. The “homeland” purpose adopted here is more rational, although it is not clear how the quantity of water reserved for that broad purpose will compare with the quantity calculated under the PIA process.  That will become clearer as the case proceeds through the next phases of the trial.

Procopio_Rusinek_Walter_Bio Photo

Walter Rusinek is a member of the Native American Law and Energy and Environment practice groups.  He counsels Native American clients on various environmental and Indian law issues, including the transfer of fee-owned property into trust.  Connect with Walter at walter.rusinek@procopio.com.

Ted GriswoldTed is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.