Ninth Circuit Holds that the Federal Reserved Rights Doctrine Applies to Groundwater
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.
Walter Rusinek is a member of the Native American Law and Environment and Natural Resources practice groups. He counsels Native American clients on various environmental and Indian law issues, including the transfer of fee-owned property into trust.