UPDATE: U.S. Supreme Court Denies Cert. in Indian Reserved Groundwater Rights Case
By Procopio Partner Theodore Griswold
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.
Note: This article was also published on Procopio's Native American Law blog, Blogging Circle.
Theodore J. Griswold is head of Procopio's Native American Law practice group and primary editor for its Native American Law blog, Blogging Circle. Ted has counseled clients on Native American governance, intergovernmental agreements, alternative energy, natural and cultural resources, wetlands, habitat, environmental and land use matters.