Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Agua Caliente raises pressing issues at the intersection of Federal Indian law and water law that have yet to be conclusively resolved by the U.S. Supreme Court. Among these issues are whether federal reserved water rights apply to groundwater and the scope and circumstances under which aboriginal water rights, with a priority date of time immemorial, may be claimed. This piece explores in depth the Agua Caliente’s claim to aboriginal rights to groundwater, and how the district court ruled on this claim in its March 20, 2015 ruling on summary judgment.

Background on Federal Indian Water Rights

Although the law of Indian water rights remains in flux, water rights potentially available to federally recognized tribes fall into two categories: 1) federal reserved, or Winters, water rights and 2) aboriginal, or Winans, water rights. Both types are at issue in Agua Caliente, and while this post primarily discusses the Agua Caliente Band’s aboriginal water rights claim, an overview of both types of rights provides useful background.

First, tribes may be entitled to federal reserved water rights. The U.S. Supreme Court first recognized reserved water rights in Winters v. United States, 207 U.S. 564 (1908), which concerned the Fort Belknap Indian reservation in Montana. The Milk River flows through the Fort Belknap reservation, and, at the time of the case, a number of non-Indian Montanans had obtained state appropriative rights to the river’s water. The federal government sought to restrain these state-sanctioned users from diverting water upstream of the reservation, and the question arose whether the Indian reservation possessed water rights through which it could restrain other appropriators. In response to this question, the Court held the reservation did possess water rights because, in setting aside the Fort Belknap Indian reservation, the federal government reserved water sufficient to fulfill the purpose of the reservation. In other words, if by treaty the United States reserved land to provide a tribal agricultural homeland, the resulting Indian reservation and its occupants would possess federal reserved water rights to the quantity of water necessary to fulfill that agricultural purpose. Later courts, such as Arizona v. California, 373 U.S. 546 (1963), clarified that these rights apply to waters appurtenant to the reservation and have a priority date commensurate to the date of the treaty or other federal action reserving the lands.

In addition to reserved water rights, tribes have invoked aboriginal water rights carrying a priority date of time immemorial. The key Supreme Court case supporting such rights is United States v. Winans, 198 U.S. 371 (1905). While Winans was not a water rights case, it contains a principle of Indian law applicable to water rights, namely that treaties and other federal actions are not a grant of rights to the Indians, but rather a grant of rights from them. Thus, according to Winans, tribes retain rights that they did not explicitly cede in a treaty or other agreement. In the case of Winans, these retained rights included hunting and fishing.

The central case recognizing the Winans principle with respect to water rights is United States v. Adair, 723 F.2d 1394 (9th Cir. 1983). There, the Ninth Circuit held the Klamath Tribe of Oregon possessed aboriginal title to certain lands, hunting, and fishing rights, and “by the same reasoning, an aboriginal right to the water used by the Tribe as it flowed through its homeland.” Id. at 1413. While the Klamath Tribe ceded title to most of its ancestral lands by treaty, the Tribe retained exclusive use and occupancy rights. Relying on Winans, the Adair court found that there was “no indication in the treaty, express or implied, that the Tribe intended to cede any of its interest in those lands it reserved for itself.” Id. at 1414. Thus, the court held, the Tribe possessed a continuing water right on the Klamath Reservation to support its hunting and fishing lifestyle. This right, the court explained, carried a priority date of “time immemorial.” Id.

Reserved and Aboriginal Rights in Agua Caliente

The Agua Caliente Band of Cahuilla Indians (“Agua Caliente” or “Tribe”) is a federally recognized tribe with a reservation in southern California’s Coachella Valley. The Tribe has used and occupied the land constituting and surrounding their current reservation for generations. The Tribe’s ancestral homeland in the Coachella Valley forms part of the Sonoran desert, where water is scarce, particularly in California’s current drought. In 2013, the Agua Caliente sued the Coachella Valley Water District and the Desert Water Agency seeking, among other requests, a declaration that the Tribe possesses both federal reserved and aboriginal rights to the Valley’s groundwater. This lawsuit began in the United States District Court for the Eastern District of California.

The parties to the suit agreed to break the action into three phases. Phase I, which was decided in March 2015, addressed two primary legal questions: (1) whether the Agua Caliente held federal reserved rights to groundwater under the Winters doctrine, and (2) whether the Tribe held aboriginal rights to groundwater. The court held the Tribe’s federal reserved water right included a right to groundwater. The court found the reservation’s purpose was to provide a tribal homeland, and thus the Tribe possessed a federal reserved water right sufficient to fulfill that purpose. The court reasoned that this right extended to the groundwater beneath the Tribe’s land as an appurtenant source of water. See Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015) at 7-10 (hereinafter “Agua Caliente”). Because the extension of the Winters doctrine to groundwater has not been settled by the U.S. Supreme Court, this constitutes a major victory for the Tribe.

The Eastern District, however, denied the Tribe’s aboriginal rights claim. This section recounts the parties’ arguments in this case.

i. The Parties’ Arguments

The aboriginal rights arguments in Agua Caliente centered on federal statutes enacted in the wake of California joining the United States. In 1848, Mexico ceded land that would become the State of California to the United States in the Treaty of Guadalupe Hidalgo. Shortly thereafter, in 1850, California was admitted to the Union and became a state. And just one year later, the U.S. Congress passed the Act of 1851, which sought to protect the property rights of former Mexican citizens and to settle land claims in California. The Act required those claiming property rights to file their claims within two years.

Coachella argued that the 1851 Act required all claims to land to be submitted, and that the Agua Caliente’s failure to submit a claim within the two-year period set forth in the Act meant that any claims to the land were extinguished in 1853. Likewise, Coachella argued that the record lacked sufficient factual support for Agua Caliente’s aboriginal groundwater rights claim. In particular, Coachella emphasized the lack of evidence that Agua Caliente reservations had any wells in use, but rather that they only used surface water.

Agua Caliente countered that the 1851 Act did not extinguish their aboriginal rights. Agua Caliente did not dispute that they failed to file a claim in the two-year window of the Act. Instead, they argued that the Act, which on its terms pertained to “each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government,” Plaintiff’s Brief at 20 (citing An Act to Ascertain and Settle the Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851)), did not apply to them because their claim to land did not stem from the Spanish or Mexican government. Rather, they claimed aboriginal rights based on use and occupation since time immemorial, and did not rely upon title derived from the Spanish or Mexican government. To buttress this argument, Agua Caliente also pointed to an 1853 Act passed by the U.S. Congress to transfer California lands in which the United States retained a proprietary interest to the United States. Because this 1853 Act included an exception for “land in the occupation or possession of any Indian tribe,” the Tribe argued that this provision explicitly recognized as valid the kind of aboriginal title that they asserted. In making this argument, Agua Caliente also attempted to distinguish a series of U.S. Supreme Court cases finding aboriginal rights to be extinguished by the Act of 1851. It did so on the ground that those U.S. Supreme Court cases addressed “Indian land rights that fell within the purview of the 1851 Act,” but that Agua Caliente’s land rights did not fall within the purview of the 1851 Act.

Likewise, because an 1850 law passed by the U.S. Congress created a treaty commission for the purpose of clearing aboriginal title claims of non-missionized Indians, Agua Caliente argued that they did not fall within the scope of the Act of 1851. The Act of 1851, their argument went, did not apply to Indians outside the zone of missionization because the 1850 Act covered their claims. Agua Caliente also noted that they had negotiated a treaty with the United States in 1852 that set aside a reservation, but that they were not notified of the U.S. Senate’s failure to ratify the treaty for some time.

Finally, Agua Caliente argued that even if their aboriginal land rights had been extinguished by the 1851 Act, they subsequently reestablished title by continuing their exclusive use and occupancy of the land and water on their ancestral lands.

ii. The Court’s Ruling

The court’s ruling on summary judgment granted the Agua Caliente federal reserved rights to groundwater, but denied the claim for aboriginal groundwater rights. It rejected both of Agua Caliente’s aboriginal rights arguments, finding that the Tribe’s failure to file a claim in accordance with the Act of 1851 extinguished any aboriginal water rights. Moreover, the court held that even if the 1851 Act did not extinguish these aboriginal rights, the establishment of a reservation in 1876 “effectively re-extinguished that right.” Agua Caliente at 13.

Although the court did not explicitly address Coachella’s argument that no factual support demonstrated groundwater use in the relevant time period, the court did note that aboriginal rights to groundwater are not founded upon use of groundwater itself, but rather derive from a right to occupancy. See Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015) at 13 fn. 12 (“[N]o such freestanding aboriginal rights exists, all derive from a right to occupancy.”). Accordingly, proof of actual groundwater use was not necessary.

The court’s decision to deny aboriginal rights to Agua Caliente relies fairly heavily on U.S. Supreme Court precedent regarding the Act of 1851. Although the argument that an aboriginal right does not stem from Spanish or Mexican authority and that property rights not stemming from Spanish or Mexican authority are not covered by this Act appears persuasive on its face, past U.S. Supreme Court decisions have interpreted the Act of 1851 as requiring tribes claiming aboriginal land rights to have filed a claim pursuant to the Act to preserve their occupancy rights. The main case finding otherwise, Cramer v. United States, 261 U.S. 219 (1923), upon which Agua Caliente relied heavily, contains some language favorable for the Tribe. See, e.g., id. at 231 (“The Indians here concerned . . . and their claims were in no way derived from the Spanish or Mexican governments.”). Nevertheless, while the U.S. Supreme Court has not affirmatively stated that all aboriginal land claims in California fall within the ambit of the Act of 1851, the Ninth Circuit in U.S. ex rel Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986), effectively interpreted the line of U.S. Supreme cases as doing just that. The Chunie court distinguished Cramer on the ground that the tribe in that case did not occupy the land in question at the time of the Act of 1851. Interestingly, the Eastern District did not address Agua Caliente’s argument about the 1850 treaty commission, so the court’s exact perception of that argument remains unclear. Nevertheless, the Eastern District did not find it persuasive enough to rule in the Tribe’s favor on the aboriginal water rights claim.

The Eastern District’s assertion that the creation of a reservation for the Tribe in 1876 reservation extinguished aboriginal rights, however, appears inconsistent with prior case law on aboriginal water rights. As put forward in Winans, reservations are not a reservation of rights to tribes, but rather a reservation of rights from them—a reservation of those not granted. Accordingly, the Ninth Circuit in Adair, 723 F. 2d at 1414, noted, concerning the aboriginal water rights it found to exist for the Klamath Tribe, “[t]he rights were not created by the 1864 Treaty, rather, the treaty confirmed the continued existence of these rights.” The Eastern District here, citing Hagen v. Utah, 510 U.S. 399, 412 (1994) instead explained that reservation means “the United States withdraws land which it then ‘set[s] apart for public uses.’” The Eastern District used this statement to support the assertion that “an aboriginal right of occupancy is fundamentally incompatible with federal ownership.”  Agua Caliente at 13. This assertion, of unclear origin or legal underpinning, contradicts Adair, which recognized a continued aboriginal right of occupancy on a federal reservation. Adair, 723 F. 2d at 1414.

Conclusion

First, in our estimation, the Eastern District should have refrained from foraying into the counterfactual that the Tribe might have reclaimed its aboriginal title between the Act of 1851 and the 1876 establishment of its reservation. Alternatively, just as the Ninth Circuit did in Adair, the court could have conducted a robust interpretation of the executive order that established the reservation in 1876 to determine whether or not it reserved any remaining aboriginal rights. We feel that it is a legal error to conclude that a reservation automatically extinguishes any aboriginal rights that may exist without even examining the text of the order establishing the reservation. However, because the Tribe has elected not to appeal the aboriginal rights portion of this ruling, the order and its flawed reasoning will remain on the books.

Case law surrounding the presence of aboriginal water rights remains murky. Although Agua Caliente ultimately prevailed on their reserved water rights claim in this case, recognition of aboriginal rights can be crucial to tribes, primarily when 1) a federal reserved rights claim is not available; or 2) the priority date guaranteed by a reserved right is not early enough to preserve a tribe’s access to water. Given the lack of clarity in aboriginal water rights, erroneous decisions in this arena are not surprising. Appellate courts should work to make the law here more clear when the opportunity to do so arises to provide better guidance to lower courts attempting to make sense of the confusing state of the doctrine.

Although this piece has focused on the legal underpinnings of aboriginal rights, it is worth acknowledging that, from the perspective of basic fairness, these legal underpinnings are themselves seriously flawed. During this time period, eighteen tribes in California negotiated treaties with the United States that were never ratified. No one bothered to notify the tribes of this fact. Combined with the Act of 1851, these actions left many California tribes homeless. On top of this, these tribes had to endure state-sanctioned attempts to get rid of the Indian population. There are some tools within the law, such as aboriginal water rights, that can be used to advance tribal interests, but that does not change this country’s history of using the law itself to subjugate the people who have lived here the longest, a history that is still present in certain strains of modern legal doctrine.

Richard Griffin and Claudia Antonacci, JD Candidates, Stanford Law School, Class of 2017

Image: Warner’s hotsprings and the village of Aqua Caliente, California ca. 1900.  Flickr user Ashley Van Haeften, Creative Commons.

SOURCES:

Winters v. United States, 207 U.S. 564 (1908).

Arizona v. California, 373 U.S. 546 (1963).

United States v. Winans 198 U.S. 371 (1905).

United States v. Adair, 723 F.2d 1394 (9th Cir. 1983).

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015).

An Act to Ascertain and Settle the Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851).

U.S. ex rel Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986).

Agua Caliente Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Phase I Issues.

Coachella Valley Water District Memorandum of Points and Authorities in Support of Motion for Summary Judgment or in the Alternative, for Partial Summary Judgment.

United States Bureau of Indian Affairs, Who We Are, http://www.bia.gov/WhoWeAre/RegionalOffices/Pacific/WeAre/.


For Denver Urban Gardens, one of its most important goals is to provide inner-city children with school gardens, where they can grow their own fruits and vegetables. The organization, which operates more than 145 community gardens in the Denver area, works with local school districts, including Denver Public Schools, to create “garden-to-cafeteria” programs. The organization gives kids the opportunity to watch the seeds they plant turn into fresh, healthy food.

Both Denver Water and Denver Public Schools aim to follow the state’s requirement of putting water to its maximum beneficial use. Therefore, instead of using potable water to irrigate school grounds, schools aim to use recycled water.

However, under current state rules, those two goals cannot co-exist. Water regulations prohibit using recycled water on crops intended for human consumption. Because Denver Urban Gardens uses school irrigation water for the on-site gardens, and because Denver Public Schools would begin using recycled water for irrigation at those sites, Denver Urban Gardens could lose a portion of its forty school gardens.

In an effort to meet both goals, Denver Urban Gardens and Denver Water are working together to amend the state regulation to allow the cleanest recycled water to be used on food crops.  “It seems like [our goals] should be complimentary rather than mutually exclusive,” said Shannon Spurlock, Director of Public Affairs and Policy for Denver Urban Gardens.

Proposed Amendment

Pursuant to the Colorado Water Quality Control Act, Code of Colorado Regulation 84 (“Regulation”) sets forth requirements for the use of reclaimed, or recycled, domestic wastewater. The Regulation designates three types of recycled water. Category One is the least treated and most restricted, and Category Three is the most treated and least restricted. The Regulation sets standards for each category, including the maximum allowable level of E. coli. Category One allows the highest level and Category Three requires that “none [be] detected in at least [seventy-five percent] of samples in a calendar month.”  The Regulation also sets the maximum level of turbidity – or cloudiness – for each category.

The categories determine how the water may be used. For example, the Regulation allows users to apply all three categories to non-food crops, but it explicitly prohibits the use of any recycled water on “crops produced for direct human consumption, crops where lactating dairy animals forage, and trees that produce nuts or fruit intended for human consumption.”  That prohibition is where Denver Water and Denver Urban Gardens hope to make a change. The organizations will go before Colorado’s Water Quality Control Commission (“Commission”) for an informational hearing in May 2016 where the Commission will decide whether to move forward with a formal rulemaking hearing to modify Regulation 84.

If the Commission decides that allowing the usage of recycled water on food crops is ready to pursue, then it could consider the changes as early as the end of 2016. If, however, the Commission decides the issue is not yet ripe, then the proposed amendment will be delayed, perhaps as long as three years.  While it is too early in the amendment process to say exactly what the proposed change will be, the organizations are looking at potential changes to Regulation 84 to determine the best way to irrigate food crops with recycled water.

Potential for Pushback

Proponents are preparing for concerns from regulators, from community members, and from people in agriculture, but the concerns do not necessarily stem from the same reasons.  The organizations anticipate that the Commission and the public will have concerns about using recycled wastewater directly on food crops. However, amendment proponents plan to point out that other states already allow the use of disinfected, recycled water on food crops, and they are doing so without making people sick.

Take, for instance, Monterey County in California, where farmers have used recycled water to irrigate fruits and vegetables intended for raw consumption for nearly twenty years. In order to allay consumers’ fears of using recycled wastewater on food, researchers conducted an eleven-year pilot program to study the potential for contamination.  Finding no signs of such a danger, the area’s agricultural industry now heavily relies on recycled water.

Because amending the Regulation would also allow farmers to use recycled water on their own crops, proponents also point out that using recycled water would be a lucrative irrigation alternative. According to those in favor of the amendment, the change would allow farmers to cut down on their annual costs while getting the most out of their water rights.

Even so, farmers may have concerns over how recycled water might affect their water rights. Denver Water and Denver Urban Gardens hope to make it very clear that using recycled water would have no impact on existing rights as long as farmers continue to use the same designated amount of water. Therefore, changing the type of water they use on crops would not require them to apply for alterations to their existing rights and would allow them to continue to use their water rights fully.

Path Ahead

According to the Environmental Protection Agency, the United States only reuses about eight percent of wastewater. Proponents say tapping into this underutilized resource is a worthy goal, especially in places like Colorado, where droughts take a heavy toll on agriculture.

Denver Water and Denver Public Schools say they still have a long road ahead, but the first step is getting Commission’s permission to proceed, which they hope to do at the May 2016 informational hearing. After that, the organizations will come up with a proposed amendment, seek public input, and work with water experts and water districts to ensure that the recycled water is fit for its new purpose.

Even if the Commission sends the proponents back to the drawing board, they say they will continue their effort to amend the rules.  “This won’t be the end of the road regardless,” said Damian Higham, a recycled water specialist for Denver Water.

Whitney Phillips, J.D. Candidate, 2016, University of Denver Sturm College of Law

Image: A hydroponic greenhouse with micro irrigation in California, located ¼ mile from the Pacific Ocean’s Monterey Bay)Flickr user U.S. Dept. of Agriculture, Creative Commons.

 

SOURCES:

DENVER WATER WHITE PAPER: RECYCLED WATER FOR IRRIGATION OF EDIBLE CROPS (2015), http://www.denverwater.org/docs/assets/D37B8FE5-155D-01CB-0C6B47FCC5B59221/recycled-water-edible-crop-white-paper.pdf.

Hudson Sangree, California looking to recycled water to ease drought concerns, THE SACRAMENTO BEE (April 14, 2014, 12:00 AM), http://www.sacbee.com/news/local/article2595660.html.

Interview with Bahman Sheikh, independent water consultant (March 23, 2016).

Interview with Damian Higham, recycled water specialist for Denver Water (March 24, 2016).

Interview with Shannon Spurlock, director of public affairs and policy for Denver Urban Gardens (February 4, 2016).

NATIONAL WATER RESEARCH INSTITUTE, REVIEW OF CALIFORNIA’S WATER RECYCLING CRITERIA FOR AGRICULTURAL IRRIGATION (2012), http://nwri-usa.org/documents/NWRIAgRecycleReport2012.pdf.

Reclaimed Water Control Regulation, 5 Colo. Code Regs. § 1002-84 (West 2016).
The Mission and History of Denver Urban Gardens, DENVER URBAN GARDENS, http://dug.org/mission-and-history/.

UNITED STATES ENVIRONMENTAL PROTECTION AGENCY 2012 GUIDELINES FOR WATER REUSE (2012), available at http://nepis.epa.gov/Adobe/PDF/P100FS7K.pdf.


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Tribal Participation in the Sustainable Groundwater Management Act

In 2014, the California Legislature passed the Sustainable Groundwater Management Act (SGMA), which implements a comprehensive framework for the regulation of groundwater in California.[1]  SGMA relies on local agency leadership to achieve “sustainable groundwater management,” defined as the management and use of groundwater without an “undesirable result,” such as unreasonable reduction of groundwater storage, degradation of quality, seawater intrusion, or land subsidence.  Under the new law, certain high- and medium-priority basins will be required to adopt sustainable groundwater management plans the end of January 2022, and to attain sustainable groundwater management by 2040.[2]  While SGMA contains several provisions pertaining to tribes, it raises many more questions than it answers about how the new regulations will affect the more than one hundred federally recognized Indian tribes that reside in California.

Much of the uncertainty about SGMA’s impact on tribes and vice versa stems from the fact that federally recognized tribes are sovereign entities that often fall outside of state regulation; tribes have a government-to-government relationship with the U.S. federal government.  This means that, with regard to their federal water rights, federal tribes can effectively ignore SGMA if they so choose, which poses potential problems for the state and local sustainability agencies, because sustainably managing an aquifer generally requires managing the total amount of water removed from the aquifer by all users.  If a local sustainability agency cannot control—or doesn’t even know—the amount of groundwater used by a tribe, it will be more difficult for that agency to manage its groundwater basin.  As a result, SGMA seeks to pull federal tribes into local considerations of groundwater management and conservation; it provides that tribes “may voluntarily agree to participate in the preparation or administration of a groundwater sustainability plan” and are “eligible to participate fully in planning, financing, and management.”[3]  Still, the Act does not—and cannot—require that federally recognized tribes participate or in fact do anything at all.

The question of whether to participate in the SGMA process raises complex issues for tribes, and since the first deadlines under SGMA have not yet passed, the tribes appear to be in a “wait and see” mode—they are waiting to see how the process takes shape and plays out before deciding whether to participate.  To date, no tribe has fully begun participating in a local SGMA process of developing a sustainability agency or groundwater plan.  In part, this is likely the result of tribes’ concerns that participating in the SGMA process—a state law to which they are not subject—will impinge on their sovereignty.  Tribes may not want to be forced to report to the state; instead, they wish to preserve their government-to-government relationship at the federal level.  For similar reasons, tribes may be hesitant to share their groundwater data and knowledge about the hydrogeology of any aquifers underlying their reservation.  Moreover, even if tribes are interested in coordinating with local agencies or the state, they may lack institutionalized mechanisms for doing so, because historically many of them have coordinated with federal, rather than state, agencies.  Collaborating with local entities under a state law may be an uncomfortable posture and new procedure for tribes.  Thus, for those tribes who may be interested in participating, establishing a formal relationship between tribes and the state that doesn’t entail the state regulating tribes will be a major challenge moving forward.

But if tribes opt not to participate in the SGMA process, what does that mean for the basins that they overlie?  It could mean future havoc for basin plans if tribes assert federally reserved water rights after the basin plans are established.  SGMA guidance documents have appropriately emphasized how to contact and invite tribes to participate, but they have not named the risks of not including tribal participants.[4]   If a tribe asserts a federally reserved water right after a basin plan has been established, it may render the basin plan ineffective by bringing the total amount of groundwater extracted from the basin above the amount required to achieve “sustainable groundwater management.”

The potential for this situation to arise is the result of the nature of the water rights that federal tribes living on reservations may be able to claim.  Under the Winters doctrine, when Congress reserves land for an Indian reservation, Congress also reserves water rights for the tribes living on the reservation.[5]  Those tribes have a right to the amount of water necessary to fulfill the purposes for which the reservation was created, which can include the amount needed to farm all the “practically irrigable acreage” on the reservation.[6]  That “reserved” water right is a federal right and thus usually paramount to rights later perfected under state law.[7]  As a result, unlike holders of state water rights, tribes with federal water rights need not follow the reasonable and beneficial use doctrines that are part of the California water law regime for both groundwater and surface water rights.  Nor do they lose the water right from non-use—federally reserved water rights are not subject to abandonment, so tribes may come forward and assert a water right at any time—including potentially after a basin plan has been established under SGMA.

The concern that tribes will disrupt existing water allocation regimes by suddenly claiming or exercising their reserved water rights is not new, however.  Historically, tribal claims of federally reserved water rights were made with respect to surface water, which presented complex issues for the appropriative rights systems employed in western states like California because they affected the priority of existing rights.  Whereas priority date under the state system is based on the date when the appropriation was initiated, federally reserved water rights have a priority date that goes back at least as far as the date on which the reservation lands were set aside.[8]  As a result, a tribe claiming a federally reserved right to surface water today could bump down in priority all the rights established after the date on which the reservation was created.

Potential Interactions Between Federally Reserved Groundwater Rights and California’s Groundwater Regime

Similar problems arise in the context of groundwater, which recent case law, including the Eastern District of California’s decision in Agua Caliente, suggests can also be the subject of federally reserved water rights.[9]  California manages state groundwater rights under a water rights system that merges three different types of water rights—overlying, or correlative rights; appropriative rights; and prescriptive rights.[10]  The California Supreme Court first recognized correlative and appropriative rights to groundwater in 1903 in the landmark case Katz v. Walkinshaw.[11]  Under this groundwater rights regime, users whose land lies above an aquifer are vested with overlying rights, which allow groundwater extraction for use on the overlying land subject only to the limitation that the amount extracted is reasonable for use on the overlying parcels compared to the demands of other overlying users.[12]  Appropriative rights are established according to a first-in-time, first-in-right system and relate to groundwater extraction for use on property that does not overlie the aquifer.  These rights are junior to overlying rights—appropriators may only use “surplus” water, or water in excess of what is required by overlying users and that will not result in aquifer overdraft.[13]  Finally, prescriptive rights can be created by the open and adverse continuous use of groundwater in an overdrafted basin for the prescriptive period, which in California is five years.  Thus appropriative rights can shed their junior status as compared to overlying rights if they become prescriptive rights through this process.  How federally reserved rights to groundwater will interact with or fit into this complex state groundwater rights system remains largely an open question.

If the tribe’s land overlies a groundwater source, it may begin pumping under the correlative rights doctrine, making a claim to the correlative right of “reasonable use” under state law.[14]  Under that state law correlative right, if there is insufficient water to meet the demands of all overlying landowners, then each must reduce their use in relation to the other overlying landowners.[15]

If, however, the tribe claimed their groundwater right was a federally reserved right, three potential scenarios could occur.  First, if the date of creation of the tribe’s groundwater right preceded perfection of all other overlying groundwater rights, the tribe’s right would probably be absolute and superior, rather than correlative, to others.[16]  Granting a tribe its entire allotment in this scenario would likely follow the California Supreme Court’s rule for coordinating state surface water appropriative and riparian rights, which provides that appropriative rights supersede subsequent riparian rights and vice versa.[17]  Riparian surface water rights, like overlying groundwater rights, are correlative.[18]  As a result, the tribe’s federally reserved right could effectively preempt the state water rights of other users, thus making sustainable groundwater management more difficult, especially in times of scarcity or if the tribe’s water right is large relative to the total amount of water available in the basin.

In a second scenario, all overlying groundwater rights could predate a tribe’s reserved right.  Under this scenario, because federal reserved rights cannot interfere with prior state water rights,[19] the tribe’s right would likely be satisfied after the overlying rights, similar to a state appropriative groundwater right.

Finally, in a third scenario, the date of the creation of the tribe’s groundwater right could fall between the dates when other overlying groundwater rights in the basin vested.  In this scenario, three potential outcomes exist for coordinating overlying users’ rights with the tribe’s reserved right to groundwater: 1) the tribe’s right might be enjoyed in its entirety, preempting all subsequent overlying users, with all overlying users (including those predating the tribe’s reserved right) sharing in shortage, which means all overlying users reduce use proportionally if there is not enough water to meet their total demand; 2) because some overlying rights precede the tribe’s reserved right, the tribe’s right might be satisfied after all overlying rights; or 3) the tribe’s right might, together with other overlying state groundwater rights holders, reduce use proportionally in times of shortage.  This scenario—where a tribal reserved right is created subsequent to some overlying groundwater rights but before some others—mimics a scenario left unresolved in California surface water law when a surface water appropriative right is both predated by and followed by separate correlative, riparian rights to the same waterbody.  According to the authors of one water law casebook, in this surface water situation, “[i]f you cannot find a solution [to this quandary], do not worry.  Neither can we.  To our knowledge, moreover, no court has ever confronted this Gordian knot in a published opinion.  This issue typically does not arise because title to most private land in California was acquired before rival appropriative water rights were perfected.”[20]  Because tribes like the Agua Caliente Band of Cahuilla Indians, located in Southern California’s Coachella Valley, may hold reserved rights to groundwater with priority dates around the time when overlying groundwater rights first vested—the Agua Caliente’s Winters right to groundwater would date to 1876—this “Gordian knot” might become more common as tribal reserved rights to groundwater are increasingly recognized.[21]

In addition, tribes sometimes pump water from an aquifer and deliver it to lands that do not overlie that aquifer.  Under California groundwater law, this situation would make them state law appropriators.  If the tribe claimed a federal reserved right to groundwater in this distant aquifer, however, their reserved right would probably function like reserved rights to surface water: the tribe’s groundwater right would be fulfilled before appropriators with priority dates after the establishment of their reservation and after appropriators with earlier priority dates.[22]  Meanwhile, a tribal reserved right to groundwater that it uses on lands that do not overlie an aquifer might be fulfilled subsequent to all overlying groundwater rights, like state appropriative rights, or in conjunction with overlying groundwater rights as described above.

These complexities highlight the importance of aboriginal rights to groundwater—tribal reserved rights with priority dates of time immemorial.  Aboriginal groundwater rights with a priority date of time immemorial would almost certainly resolve the legal headaches described above, with tribal rights trumping all state groundwater rights.  Another post in this series discusses the aboriginal rights claim in the Agua Caliente case.

Ultimately, under either the correlative rights or the Winters doctrines, a federally recognized tribe on a reservation overlying an aquifer could claim a right to the groundwater at any time, even if it has not previously been pumping.  With a claim under the state correlative rights system, this would likely pose a fairly manageable problem for groundwater managers, since the tribe’s right would be limited by what is reasonable use in relation to other overlying users.  But an absolute, non-correlative, federally reserved claim to groundwater might frustrate basin plans and the established groundwater rights regime.  This is not to say that tribes are in any way at fault for unsustainable groundwater management in California; in fact, aquifer overdraft throughout the state is largely the result of historic non-enforcement of the groundwater rights regime except through litigation and adjudication in some basins.  Rather, the intersection of tribes’ federally reserved rights to groundwater and the California groundwater regime engenders extreme legal complexities and uncertainty that may have unintended consequences for groundwater management under SGMA.

Further uncertainty for basin managers might arise from questions like: if a reservation both overlies an aquifer and is crossed by surface water, may a tribe decide which water resource to make the subject of its federally reserved right (i.e., whether to claim a federally reserved right in the surface water or the groundwater)?  Can it make a claim to some of both the surface water and the groundwater?  If a reservation overlies two different aquifers, may a tribe claim a federally reserved right in one and a correlative right in the other?  Given that courts have only somewhat recently begun to find federally reserved rights in groundwater, these and many other questions about the interaction between California’s groundwater rights system and federally reserved groundwater rights remain unresolved.  In the end, it is in the interest of state and local agencies to attempt to overcome hurdles like tribes’ concerns about sovereignty in order to coordinate with them on groundwater to ensure that SGMA can be implemented effectively while respecting tribal water rights.

Elizabeth Vissers, J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Mary Rock,  J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Philip Womble, J.D., Stanford Law School, 2016; Ph.D. Candidate, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2019

Image: Shasta Dam, California.  Wikimedia Commons user Apaliwal, Creative Commons.

[1] 2014 Cal ALS 346, 2014 Cal SB 1168, 2014 Cal Stats. ch. 346 [hereinafter “Sustainable Groundwater Management Act” or “SGMA”].

[2] Philip Womble & Richard Griffin, Two Interactions Between California’s Sustainable Groundwater Management Act and the Public Trust Doctrine, Stan. Envtl. L.J. Blog (Apr. 29, 2015, 2:40 PM PST), http://journals.law.stanford.edu/stanford-environmental-law-journal-elj/blog/two-interactions-between-californias-sustainable-groundwater-management-act-and-public-trust#sthash.yaHnd6gB.dpuf.

[3] Sustainable Groundwater Management Act, ch. 346, §10720.3(c).

[4] See Kristin Dobbin, et al., Collaborating for Success: Stakeholder Engagement for Sustainable Groundwater Management Act Implementation (July 2015), http://www.waterboards.ca.gov/water_issues/programs/gmp/docs/local_asst/sgma_stakeholderengagement_whitepaper.pdf.

[5] Winters v. United States, 207 U.S. 564 (1908).

[6] See Arizona v. California, 530 U.S. 392 (2000).

[7] SGMA recognizes this.  Section 10720.3(d) provides that “federally reserved water rights to groundwater shall be respected in full.  In case of conflict between federal and state law in that adjudication or management, federal law shall prevail.”

[8] Winters v. United States, 207 U.S. 564 (1908); see United States v. Winans, 198 U.S. 371 (1905) (possibly supporting the notion that federally reserved rights could go back as far as time immemorial).

[9]  Cappaert v. United States, 426 U.S. 128 (1976); Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 U.S. Dist. LEXIS 49998 (C.D. Cal. Mar. 20, 2015); see also Stephen V. Quesenberry et al., Tribal Strategies for Protecting And  Preserving Groundwater, 41 Wm. Mitchell L. Rev. 431, 453 & n.97 (2015) (commenting that “many . . . state and federal courts have found reserved rights in groundwater” and listing cases).

[10] Womble & Griffin, supra note 2.

[11] 141 Cal. 116 (1903).

[12] Womble & Griffin, supra note 2.

[13] Id.

[14] Wright v. Goleta Water District, 174 Cal. App. 3d 74 (relegating an unexercised right and making the newest pumper subordinate to others is inappropriate).  Tribes would be considered the same as any other overlying user, and could thus make a claim under state law to the amount of water that is reasonable compared to the demands of other overlying users.

[15] While this has historically not been enforced, the implementation of SGMA will hopefully ensure that it is enforced in the future.

[16] Quesenberry et al., supra note 9, at 456. See also Judith Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 169, 182 (2000) (stating that “[t]ribal [reserved] water rights are, therefore, paramount over subsequent state-law water rights.”).

[17] Haight v. Costanich, 184 Cal. 426 (1920).

[18] Pleasant Valley Canal Co. v. Borror, 72 Cal. Rptr. 2d 1 (Cal. App. 5th Dist. 1998).

[19] Royster, supra note 16, at 182.

[20] Barton H. Thompson et al., Legal Control of Water Resources 209 (5th ed. 2013).

[21] Like riparian surface water rights, overlying rights to groundwater would vest when a current landowner’s predecessor in interest originally received a land patent from the U.S. government. Many of these rights would date to the mid-19th century.  See Lux v. Haggin, 10 P.674, 725 (Cal. 1886).  Any reserved groundwater rights held by California Indian Rancherias that were created in 20th century would be accordingly be junior to most, if not all, overlying groundwater rights in this scenario.

[22] Royster, supra note 16, at 182.


Editor’s Note: This piece is a part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Introduction

The United States Forest Service (“Forest Service”) manages 193 million acres of land in the United States, which comprise of 8.4 percent of the total land area, and most of which lies west of the Mississippi River.  In May 2014, the Forest Service announced a proposal to amend its internal polices.  The amendment would establish a comprehensive framework for groundwater management on National Forest System (“NFS”) lands.  Following publication in the Federal Registry, the agency received over 250 comments from interested parties, including state and city governments, tribal groups, and conservation organizations.  Some comment submissions supported the Forest Service’s policy changes.  Others expressed concern over its lack of authority to institute groundwater regulations, and its potential overreach into state rights.  More specifically, commenters argued that the proposed directive had the potential to usurp state groundwater management by what they perceived was a huge expansion of federal authority over reserved water rights.  Ultimately, the Forest Service withdrew its proposed directive, but it intends to revise and resubmit similar directives following additional internal and external consultation efforts.

The Groundwater Directive

The Forest Service does not have a comprehensive policy for managing groundwater resources on NFS lands.  Its current policies provide little internal direction and only address “agency inventory and monitoring activities for groundwater.”  The proposed groundwater directive, entitled “Groundwater Resource Management,” would have amended the Forest Service’s internal directives for Watershed and Air Management.

Substantively, the proposed directive would help the agency manage access to and utilization of groundwater resources under NFS lands.  Broadly speaking, it would establish policies and procedures to help the agency evaluate activities that potentially affect the quality and quantity of groundwater.  The agency identified four objectives and eight broad changes that would result from the new directive.  Among them, and relevant to this discussion, is the establishment of a framework for evaluating existing and proposed Forest Service uses and special use authorizations.  For any such uses, the agency would begin to require “appropriate water conservation measures” to avoid, minimize, or mitigate adverse effects to groundwater.  The agency would not authorize development projects or use of groundwater if such uses failed to “adequately protect resources.”  Further, the Federal Service would assume that all groundwater and surface water is “hydraulically connected, unless demonstrated otherwise.”

The Forest Service offered numerous reasons for its policy change; however, two underlying rationales stand out.  First, the agency concluded that groundwater has inextricable links to all other sources of water in a watershed, so it is therefore “appropriate to include groundwater” in its management of NFS lands in order to maintain the integrity of all water resources.  Second, the Forest Service asserted that there is a “need” to create a consistent policy that addresses both surface water and groundwater resources, and the directive responds to external rules and recommendations calling for such policies.

Legal Concerns

The agency published the proposed groundwater directive for public comment and tribal consultation.  It received hundreds of responses from interested parties.  Some, including conservation groups and those representing tribal interests, favored, or were otherwise neutral to, the proposed policy changes.  However, a majority of those submitting comments opposed the Forest Service’s groundwater directive for a variety reasons.  Predominantly, the agency itself recognized that “[s]tates and a number of other organizations raised concerns that the proposed directive would exceed the Agency’s authorities and infringe on State authorities to allocate water.”

To the first point the agency identified, many commenters remarked that the Forest Service lacked independent authority to regulate groundwater, even that located under NFS lands.  For instance, the Western Governors’ Association (“WGA”), which represents the governors of nineteen Western states, argued that states have exclusive authority over ground water in the United States.  Congress granted such authority to the agency in the Desert Land Act of 1877, and the Supreme Court confirmed it in California Oregon Power Co. v. Beaver Portland Cement Co.  Although the federal government retained some power by reserving rights to surface water on public lands, the WGA and others contended that the Forest Service did not have such a reserved right to groundwater—not in the 1897 Organic Administration Act and not in case law. The Forest Service, on the other hand, argued that the proposed directive did not grant the agency any new authorities.  Instead, it simply clarified the agency’s already existing authority that mandates its protection of NFS lands, which inherently includes the regulation of groundwater.  Thus, this argument makes it clear that the Forest Service believed that federal reserved water rights apply to groundwater, and that the proposed directive was arguably an explicit expansion of those federal rights.

Commenters also highlighted the second concern the agency identified, that the directive infringed on state authority over groundwater management.  Many argued that the proposed directive overreached its stated goal and appeared to create federal rights that inherently conflicted with conferred state rights to groundwater.  The Forest Service later argued that “[t]he proposed directives did not, and any future actions will not, infringe on State authority.” However, ambiguity in the policy nonetheless created tension.  Without clarity, for instance, the proposed directive as written could have allowed the Forest Service to place quantity-based restrictions on waters connected to NFS lands, even if a state has previously authorized a diversion and depletion.  Additionally, commenters argued, the Forest Service should not presume a hydrological connection between surface water and groundwater.  It should instead leave this decision to the laws or agreements of individual states.

Conclusion

In June 2015, the Forest Service withdrew its proposed groundwater directive.  Although the Forest Service withdrew its directive, it announced an intention to continue engaging in dialog, both internally and publically, to develop revised proposed directives on the issue.  Ultimately, if the Forest Service manages to establish policies involving access to or utilization of groundwater resources on NFS lands, even for the purpose of enhancing water quality, it may constitute a large expansion of federal reserved water rights.

Kobi Webb, J.D., University of Denver School of Law, 2016

Image: Greer Spring in Missouri’s Mark Twain National Forest.  Flickr user U.S. Department of Agriculture, Creative Commons.

SOURCES

By the Numbers, U.S. Forest Service, http://www.fs.fed.us/about-agency/newsroom/by-the-numbers (last updated Nov. 2013).

California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142 (1935).

Comments, Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, https://www.regulations.gov/#!docketDetail;D=FS-2014-0001.

James Cefalo, Return of the Federal Non-Reserved Water Right, 10 U. Denv. L. Rev. 45, 49 (2006).

Letter from Anthony L. Francois, Attorney, Pacific Legal Foundation, to Forest Service (Oct. 3, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0129.

Letter from Barker Fariss, Ph.D, Tribal Historic Preservation Office, to the Forest Service (June 25, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0130.

Letter from City of Greely, to Forest Service (Sep. 29, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0230.

Letter from Eric Fry, Director of Regulatory Affairs, Peabody Energy, to Forest Service (Aug. 4, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0045.

Letter from Matthew H. Mead, Chairman, and Steve Bullock, Vice Chair, Western Governors’ Association, to the Forest Service at 2 (Mar. 17, 2016), http://www.westgov.org/images/Forest_Service_Directives_FINAL_002.pdf.

Letter from Rex Tilousi, Chairman, Havasupai Tribe, to the Forest Service (Oct. 2, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0193.

Letter from WGA, at 4; Letter from Clinton Ditch & Reservoir Company, the Forest Service at 4 (Aug. 21, 2014), https://www.regulations.gov/#!documentDetail;D=FS-2014-0001-0227.

Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, 79 Fed. Reg. 25816 (proposed May 4, 2014) (referring to FSM 2880, entitled “Geologic Resources, Hazards, and Services”).

Proposed Directive on Groundwater Resource Management, Forest Service Manual 2560, 80 Fed. Reg. 35299 (June 19, 2015).

U.S. Forest Service, “Key and Common Questions and Answers Proposed Groundwater Directive FSM 2560,” Question 5 (June 30, 2014).

 


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

This post explores the intersection of two topics that have historically been neglected in interstate water allocation, and in particular in interstate compacts: groundwater and tribal reserved rights to water.  Against the backdrop of the Agua Caliente case currently before the Ninth Circuit of the U.S. Court of Appeals, which raises the potential for broader recognition of tribal reserved rights to groundwater, this post focuses on interstate dimensions of recognizing such rights.  Interstate waters may be allocated in three ways: 1) an equitable apportionment decree from the U.S. Supreme Court; 2) legislation by the U.S. Congress that allocates water between states; or 3) interstate compacts.  This piece focuses on how tribal reserved rights have been dealt with under interstate compacts.

Federal Reserved Rights and Groundwater

The recognition of federally reserved Indian rights to surface water is well entrenched in water law jurisprudence, dating back to U.S. Supreme Court cases such as Winters in 1908.  As the Agua Caliente case before the Ninth Circuit highlights, tribal reserved rights to groundwater remain less established.  We first set out some background for tribal reserved rights claims to groundwater.  Then, we explore the interaction between federally reserved Indian and state rights to groundwater in the context of interstate allocations.

Even within individual states, the recognition of tribal groundwater claims may be problematic when addressing the allocation and governance of water rights.  While rights to surface water are well established, tribal rights to groundwater were typically not considered when initial allocations of water rights occurred.  Independent of tribal reserved rights, states have experienced difficulty in formulating regulatory frameworks to conjunctively manage both surface water and groundwater, particularly where different state water rights systems apply for surface water and groundwater.  The introduction of tribal reserved rights to groundwater, which may predate current claims, could have cascading effects on long-established uses of water.  The displacement of these claims and the unsettling of long-settled expectations of continued use pose an issue that we feel should be prophylactically addressed.

Interstate Allocations and Federal Reserved Rights

Inconveniently, aquifers do not always follow state lines.  In the case of transboundary aquifers, which extend across two or more states, it is unclear how federally reserved rights interact with the different states’ allocations from the aquifer.  At least two possible approaches exist: either 1) the federal reserved right takes priority, with the remaining groundwater allocated between the states; or 2) the federal allocation is taken from the allocation of the state in which the federal reserve is located.  The Supreme Court followed the latter approach in Arizona v. California, which allocated Colorado River water between these states.  In that case, the Special Master upheld the federal government’s reserved rights claim to water on behalf of various tribes, and the Special Master to the U.S. Supreme Court determined in his report that “all consumption of mainstream water within a state is to be charged to that state, regardless of who the user may be” (Rifkind, Special Master’s Report, at p. 247).  Thus, water used on Indian reservations would be chargeable to the state within which the use was made.  The Supreme Court accepted this analysis, but it did not explain why.

Nevertheless, while the limited jurisprudence on this issue would take reserved rights from the allocation of the state in which the reservation is located, Arizona v. California may not establish a general rule for the allocation of Indian water rights.  Importantly, it seems that all parties (including the United States) agreed to this approach, so that the merits of an alternative approach may not have been fully ventilated.  Further, any broadly applicable rule may be limited by the Special Master’s reliance on the specific legal framework in that case, including the 1928 Boulder Canyon Project Act and pre-existing federal contracts for the delivery of water in the region.

Of the 24 interstate compacts dealing with the allocation of interstate water resources listed on the National Center for Interstate Compacts database, only nine mention Indian rights, and none use the phrase “federally reserved rights.”  The compacts that do refer to Indian rights generally do not deal with this issue beyond a boilerplate acknowledgement that nothing in the compact “shall be construed as affecting the obligations of the United States of America to Indian tribes,” such as the Colorado River Compact of 1922 and the Klamath River Compact of 1957.

Unfortunately, should a tribal claim to the use of surface water or groundwater be made, this boilerplate language is not helpful in divining who is responsible for satisfying such rights.  One exception to the silence on this issue is the Snake River Compact, which explicitly states that reserved Indian rights are to be deducted from the state allotments in which the reservation is located.  Similarly, the California-Nevada Compact of 1969, which is not technically in force as it never gained U.S. Congressional approval, specifically notes that “there is allocated to Nevada for use on the Walker River Indian Reservation a maximum of 13,000 acre-feet per year.”

Charging tribal reserved rights to state allocations, however, is not the only possible approach.  In Montana v. Wyoming, the Special Master noted Montana’s position that because the Northern Cheyenne Tribe’s water rights predated the Yellowstone River Compact of 1950—they dated to as early as 1881—the Tribe’s rights should take priority over both states’ post-1950 rights.  In 1991, Montana and the Tribe had agreed to the Northern Cheyenne-Montana Compact, which assigned the Tribe a 20,000 acre-foot storage right with a priority date “equal to the senior-most right for stored water in the Tongue River Reservoir,” which is April 21, 1937 (Thompson, second interim report, at 158).  Wyoming, however, expressed its concern that Montana should not be able to “give away” water rights to the Tribe and then ask Wyoming to curtail its own rights to make up any shortfall for Montana users.  Because neither the Tribe nor the United States were parties to the case, the Special Master did not consider the case to be an appropriate venue to decide the nature of the Tribe’s water rights.  Accordingly, this question remains to be decided another day.

Meanwhile, interstate compacts similarly neglect groundwater; only six interstate compacts contain any mention of groundwater, and these references are fairly cursory.  In the Bear River Compact and Klamath River Compact, for instance, groundwater is mentioned to clarify that it falls outside the scope of the surface water apportionment in the Compacts.  By contrast, the Alabama-Coosa-Tallapoosa River Basin Compact provides that “[w]ater resources” or “waters” means “all surface waters and ground waters contained or otherwise originating within the ACT Basin,” signaling an intention that the Compact applies to both sources.  The Upper Niobrara River Compact of 1962 treads a middle ground, as it is confined to surface water apportionment, but expresses an intention to later apportion groundwater as soon as “adequate data on ground water of the basin are available.”  Studies have subsequently been undertaken in the Upper Niobrara Basin, but some fifty years later, the Compact has not been updated to encompass groundwater.  In the absence of express wording in the relevant compact, the Supreme Court has found that surface water allocations can be extended to groundwater; this appears to represent the default position.  For instance, in Kansas v. Nebraska, the Supreme Court found that, although the Republican River Compact did not address groundwater, it could be framed to prevent groundwater use within a state that affected interstate surface water flows.

Who Should be Responsible for Satisfying Federal Rights?

Accordingly, how should future courts, and states while negotiating compacts, approach the allocation of liability to satisfy federal reserved rights water claims? As adverted to above, the dominant theory and practice is that, unless provided otherwise, reserved rights shall be charged to state allocations.  The possible basis for this approach is the argument that a compact made between states and ratified by Congress estops Congress from later asserting a federal interest to modify the specific allocation identified in the compact.  This is because compacts are authorized by the Compact Clause in the U.S. Constitution and then approved by Congress, so they may enjoy some measure of quasi-constitutional status.  However, Professor A. Dan Tarlock suggests that this legal position may be outdated in light of cases suggesting that an interstate compact cannot limit Congressional exercise of its power to regulate interstate commerce (see, e.g., Pennsylvania v. Wheeling).  A related explanation is a pragmatic one founded in the very purpose of interstate compacts.  That is, states enter into compacts, surrendering some of their sovereignty, to secure certainty of supply.  Allowing later federal claims to modify this allocation would risk upsetting and reopening established interstate compacts.  Professor Tarlock suggests that the best approach is to treat Indian claims as “analogous to interstate waters allocated to another state by interstate compact” (Tarlock, at p. 653).  This would involve federal claims being satisfied out of the state’s allocation.  Within that framework, he suggests that federal reserved rights would usually take priority over state uses (see, e.g., Hinderlider v. La Plata & Cherry Creek Ditch Co.).

Conversely, other states have taken the position that satisfaction of Indian rights is a basin-wide responsibility.  There are compelling arguments in support of this approach; it may be unfair to charge one state with responsibility for satisfying the entirety of a federal reserved claim to water in a shared water basin because in some cases, the quantum of the potential federal right may be greater than the state’s entire allocation (as may be the case in Arizona), or federal claims may arise in relation to already over-allocated basins.  This would upset the affected state’s interests under the compact and drastically change the nature of the bargain struck.

On a principled level, prior federal reserved rights generally preempt all subsequent state claims.  Therefore it is misleading for a state to talk about “giving away” water rights, as Wyoming argued in Montana v. Wyoming, because the federal reserved right was never within the state’s power to give.  Moreover, the concern expressed by the Tribe in that case was that characterizing their reserved rights as falling within the state’s allocation could result in relegation of that right.  Although in that case, this concern rests largely on the terms of the Yellowstone River Compact itself, broader vindication of tribal rights may weigh in favor of a basin-wide response.  This issue arises when we consider the dynamics of tribal water settlements, which are usually negotiated between the federal government, tribes and the relevant state.  A state that is required to satisfy any tribal settlement with its own water allocation alone may be more likely to take a hard-nosed approach to negotiations than one that has greater resources available from the basin.  Moreover, because the McCarran Amendment of 1952 waives federal sovereign immunity for adjudication tribal reserved water rights, these proceedings often take place in state courts, which have traditionally been seen as less sympathetic to Indian interests than federal courts.  Therefore, any federally reserved allocation arguably should not factor into the quantity of water that is available for division between states.

This distinction may be easier to draw on paper than in practice, particularly when states allocate water before federal claims are officially recognized, because it assumes that the federal reserved right is both fixed and quantifiable.  This is not necessarily the case, particularly when states are negotiating compacts where inchoate federal claims exist that have not yet been advanced.  That is, in order to reserve water for potential federal claims, it would be necessary to first identify the scope of such claims.  Moreover, where less information exists to guide management of groundwater, it may not be feasible to preemptively identify how much water needs to be set aside to insure against all possible future claims.  This is by no means a straightforward undertaking, and it would most likely require engagement with relevant federal and tribal interests.  The risk of this approach is that quantifying federally reserved rights is in itself a vexed and lengthy process, and so interstate co-management of water basins could be delayed.

While these issues complicate the matter, we suggest they are not insurmountable.  The existence of federally recognized tribes and reservations overlying groundwater is easily ascertainable, so it may be that, where possible, states should proactively reserve water based on the “practicably irrigable acreage” standard.  Further, an approach that prioritizes federal reserved rights may well encourage earlier, more meaningful engagement with tribal stakeholders when states negotiate water allocations.  Ultimately, it is important that tribal water rights are not undermined through the willful failure of states to address these issues.

Conclusion

These issues will only become more contentious and problematic as demand for water continues to grow, and as a changing climate leads to increasingly drought and scarcity in some parts of the American Southwest.  Greater demands will be placed on already stressed aquifers as groundwater is increasingly looked to as a supplemental source.  States should look not only to collaboration with both tribal and private parties, but to other states in attempting to proactively address these inevitable problems.

Sarah Hoffman, L.L.M. Candidate, Stanford Law School, expected 2016

Miles Muller, J.D. Candidate, Stanford Law School, expected 2018

Image: Tahquitz Rock, part of the San Jacinto Mountains in Idyllwild, California.  Flickr user Don Graham, Creative Commons.

SOURCES

Cases / Compacts

Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 U.S. Dist. LEXIS 49998 (C.D. Cal. Mar. 20, 2015).

Alabama-Coosa-Tallapoosa River Basin Compact, Pub. L. No. 105-105, 111 Stat. 2233 (1997).

Bear River Compact, Pub. L. No. 85-348, 72 Stat. 38 (1958).

California-Nevada Compact for Jurisdiction on Interstate Waters, Cal. Water Code § 5976 (West 2016).

Hinderlider v. La Plata & Cherry Creek Ditch Co., 304 U.S. 92 (1938).

Kansas v. Nebraska, 574 U.S. ___ (2015).

Klamath River Compact, 71 Stat. 497 (1957).

Pennsylvania v. Wheeling, 59 U.S. 421 (1856).

Snake River Compact, 64 Stat. 29 (1950).

Upper Niobrara River Compact of 1962, Pub. L. No. 91-52, 83 Stat. 86 (1969).

Winters v. United States, 207 U.S. 564 (1908).

McCarran Amendment of 1952, 43 U.S.C. § 666 (1988).

Secondary Sources

A. Dan Tarlock, One River, Three Sovereigns: Indian and Interstate Water Rights, 22 LAND & WATER L. REV. 631 (1987).

Barton Thompson, SECOND INTERIM REPORT OF THE SPECIAL MASTER, MONTANA V. WYOMING, Oct. Term 2014 (Dec. 29, 2014).

DOUGLAS S. KENNEY, NATURAL RES. LAW CTR., UNIV. OF COLO. SCH. OF LAW, WATER ALLOCATION COMPACTS IN THE WEST: AN OVERVIEW (2002).

John Leshy, Interstate Groundwater Resources: the Federal Role, 14 HASTINGS W.-NW. J. ENVTL. L. & POL’Y 1475 (2008).

National Center for Interstate Compacts, State Search, http://apps.csg.org/ncic/.

Simon Rifkind, REPORT OF THE SPECIAL MASTER, ARIZONA V. CALIFORNIA, Oct. Term 1960 (Dec. 5, 1960).

Robert T. Anderson, Indian Water Rights, Practical Reasoning, and Negotiated Settlements, 98 CAL. L. REV. 1133 (2010).


Boats and Woes

A look at the city of Denver’s ban on swimming through an environmental justice lens

Environmental issues extend beyond simply ensuring that we respect and conserve our habitat. Environmental justice transcends environmental protection to incorporate issues of social justice.  By definition, environmental justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies.  In practice this means that all people, regardless of race and class, should have the same access to a clean and healthy environment. Furthermore, this concept imposes a duty on the government to ensure that government policies are in line with environmental justice principles.  Denver has developed a good plan for the city’s arrangement of public parks that is in line with environmental justice principles.  Denver’s guidelines for park accessibility state that each resident should live within six blocks of a park and that there should not be physical barriers between the two.  Nonetheless, close proximity to parks within the city does not guarantee equal enjoyment of Denver city parks.

Particularly troubling is the ban on swimming at a Denver public lake where high cost activities such as boating and water skiing are permitted.  This ban on swimming is reflective of the need for environmental justice across the Denver parks system because it has the repercussion of discriminating against lower income communities who cannot afford boating recreation.  A look at Denver’s history of discrimination and the ban’s illogical justification will demonstrate the need for reconsidering this prohibition.

Denver is an ethnically diverse city with almost an exact split between Non-Hispanic Whites and other ethnic groups.  Historically, the city was largely segregated by ethnicities, but this segregation is becoming less apparent.  In spite of this positive change, there continues to be inadvertent discrimination in not-so apparent ways.  A small, but growing body of research shows that in Denver access to environmental goods and exposure to environmental hazards are unequally distributed across low-income ethnic groups.  In particular, researchers established that in metro Denver, ethnic minority and low-income communities live closer to toxic hazards and that Denver’s wealthier neighborhoods have significantly more vegetation.  Furthermore, a study on a small sample of Denver neighborhoods showed that low-income communities of color have significantly less access to parks and to parks with play amenities, such as playgrounds and other recreational activities, than mid- to high-income white neighborhoods.  This study included a sample of six urban and six suburban neighborhoods, and four neighborhoods for each of the income categories (low, medium, and high).  In addition, the study classified each park based on the presence of formal and informal play opportunities.

Growing research also indicates the importance of access to nature and outdoor activities.  Studies show that access to nature can help reduce stress, induce cognitive development, and improve a community’s health and wellbeing.  Given the positive correlation between access to outdoor activities and the wellbeing of a community, it is important that Denver ensures it affords all communities the same opportunities.  Furthermore, studies show that nearly eighty percent of low-income minorities in Denver Public Schools have never been to Rocky Mountain National Park.  Such a statistic is representative of the need for Denver to provide its citizens with access to outdoor recreation activities, because there is something inherently wrong with living in such a beautiful state and not being able to enjoy the outdoor recreation it has to offer.

Reflective of this inadvertent discrimination are the rules of Sloan’s Lake, a Denver park, which allows water skiing, but bans all swimming.  The Denver municipal code states that it shall be unlawful for any person to wade, swim, or bathe in any river, creek, canal, lake, reservoir, or other stream or body of water in Denver.  The Denver Department of Environmental Health justifies this ban on swimming by stating that Denver’s lakes and streams receive runoff from Denver streets, yards, parks, industry, and wastewater treatment plants that can make people sick.  Nonetheless, the Denver municipal code allows swimming if the manager of environmental health finds that a natural body of water is safe to swim in.  Upon first inspection, the swimming ban at Sloan’s Lake seems necessary to protect park patron’s health, yet the park allows boating activities, such as water skiing, that run contrary to this purpose.  Water skiing entails skiers being submerged in water and subjected to the same pollutants that the city is trying to shield people from when banning swimming.  In addition, the city tests Sloan’s Lake on a bi-weekly basis for contaminants and is consistently found to have water quality levels that surpass state requirements, making it a safe lake to swim in.  Water skiing is an expensive activity that requires the possession of a boat, which many people cannot afford, while swimming is virtually cost free.  The effect of banning swimming but allowing boating is that Denver provides low-income members of the community with fewer amenities and recreation opportunities at Sloan’s Lake.

Sloan’s Lake is near a low-income minority community, who regularly use the park to picnic, relax, and enjoy the outdoors.  Lifting the swimming ban at Sloan’s Lake would allow a larger portion of its neighboring community to enjoy the amenities the park has to offer.  In addition to the safe water quality at the lake, Denver Parks and Recreation will have to consider other mitigating factors when determining whether swimming is appropriate, such as the construction of appropriate infrastructure to swim, the need to hire lifeguards, and other potential liabilities that could come from allowing swimming.  Nonetheless, the city allocated $4 million in 2012 for remodeling the boat marina at Sloan’s lake reflecting the city’s ability to fund projects in the name of recreation.  Denver should continue to work towards ensuring environmental justice across city policies and rules, lifting this swimming ban would serve that purpose well.

 

The featured image is of Bierstadt Lake in Rocky Mountain National Park. This photo is part of the public domain.


Sources:

Heidi L. Beattie ET AL., Impact of Urban Nature on Executive Functioning in Early and Middle Childhood Environment and Behavior, SAGE PUBLICATIONS (2015).

DENVER CO. MUN. CODE § 24-9 (2015).

DENVER CO. MUN. CODE § 39 (2015).

Travis L. Flohrm & Alessandro Rigolon,  Access to Parks for Youth as an Environmental Justice Issue: Access Inequalities and Possible Solutions (April 2014).

Barry E. Hill, Environmental Justice: Legal Theory and Practice, 45 Envtl. L. Rep. News & Analysis 10236 (2015).

Alessandro Rigolon, Inequities in young people’s access to urban parks: an environmental justice investigation in Denver (July 24, 2015) (unpublished Ph.D. dissertation, University of Bologna) (on file with author).

Joe Vaccarelli, Marina Renovations Complete at Sloan’s Lake Park in Denver, DENVER POST (Nov. 18, 2015), http://www.denverpost.com/ci_21362803/marina-renovations-complete-at-sloans-lake-park-denver?source=infinite-up.

Nancy M. Wells & Gary W. Evans, Nearby Nature: A Buffer of Life Stress Among Rural Children  Environment and Behavior, SAGE PUBLICATIONS (2003).


Over the last thirty-five years, American Indian tribes have slowly forged a relationship with the Environmental Protection Agency (“EPA”). This began in 1980, when the EPA released a policy statement holding tribes to federal environmental standards.[1] Since then, however, only a small percentage of tribes have met the qualifications needed to carry out the Clean Water Act (“CWA”) through government-to-government partnerships.[2] In response to this shortcoming, this past August, the EPA proposed a new rule that reinterprets Section 518 of the CWA titled “Revised Interpretation of Clean Water Act Tribal Provision.”[3] Specifically, the new rule aims to relieve American Indian tribes’ burden of demonstrating inherent regulatory authority under the Montana test in order to apply for Treatment as a State (“TAS”) status under Section 518(e) of the CWA. The new interpretation will streamline the process for Indian tribes to manage water quality within their reservations, including managing water quality on nonmember fee simple land.

The EPA’s newly proposed rule marks a shift in what responsibilities tribes have in regard to federal environmental regulations. Congress passed the CWA in 1972 demonstrating its ongoing commitment to maintain the integrity and health of the national water supply.[4] In the 1970s, the federal government passed a number of environmental laws that mostly ignored, or hardly mentioned American Indian tribes.[5] Similarly, the original CWA omitted American Indian nations, although it is a broad, nationwide statute. In response to this oversight, Congress started incorporating tribes into various environmental statutes’ framework.[6]

In 1987, concerns about pollution on Indian Country prompted Congress to add a TAS provision to the CWA.[7] Under this amendment, the regulatory agency may treat a qualifying American Indian nation similar to a state government when creating and approving a reservation’s water quality standards (“WQS”). Moreover, the TAS provision permits qualifying tribes to apply for certain grants[8] and programs including National Discharge Elimination System (“NPDES”) permits,[9] nonpoint source management,[10] and dredge and fill permits.[11]

In 1991, the EPA promulgated the water quality standards TAS rule, which explains the WQS and CWA certification programs for tribes under Section 303(c) of the Clean Water Act.[12]  The TAS rule requires a tribal nation to meet certain criteria before it can effectively regulate water quality under the CWA.[13]  Federal recognition is the first requirement for a tribal applicant.[14] Moreover, a tribe is required to demonstrate the capability of carrying out substantial lawmaking responsibilities and authority over reservation land, as defined in Section 518(h)(1). Last, a tribe should have appropriate regulatory authority over the reservation’s water quality, in addition to demonstrating its ability to implement the CWA program.[15]

The EPA’s new rule aims to reduce the burden on tribes through cooperative federalism within the TAS process.[16] This effort to delegate American Indian tribes more autonomy in managing water quality standards implicates a landmark Supreme Court decision, Montana v. United States, which held that in the absence of a federal grant of authority, a tribe presumptively lacks inherent jurisdiction over the activities of nonmembers on nonmember fee land.[17] This is land owned by non-Indians, who are not members of the tribe. However, the Supreme Court defined two exceptions to this jurisdictional rule. The Court determined that a tribe could exercise civil jurisdiction over nonmember activities within its reservation in two limited exceptions. First, where the nonmember enters into a consensual relationship with the American Indian tribe or its individual members, through a lease, contract, commercial deal, or other type of arrangement, an exception to tribal jurisdiction is permitted. Second, the tribe may retain jurisdiction when the nonmember activity has a direct effect on or threatens the political stability, economic security, or the general welfare or health of the tribe.[18]

The Montana test has had wide-ranging implications for tribal governments to exercise consistent regulatory authority, environmental or otherwise, over the entire reservation, as many nonmembers own land within the parameters of these lands. In an effort to conserve both the EPA’s and tribal resources, the EPA will no longer require a tribe to meet the Montana test. Within its statement about the Revised Interpretation, the EPA stated, “tribal applications for reservations with nonmember fee lands, which require an analysis of tribal inherent authority under Montana, took 1.6 years longer to be approved, on average, than applications for reservations without such lands.”[19]

Consequently, a tribe will not have to demonstrate its inherent authority to regulate water within its reservation boundaries.[20] Instead, the EPA will permit an applicant tribe to rely on Congress’s delegation of inherent authority under Section 518 in order to establish its tribal sovereignty in regulating its land and waters without having to distinguish between member and nonmember land.[21]

The EPA’s new rule demonstrates important progress in Indian Country for two reasons. First, by treating tribal nations similarly to states recognizes inherent tribal sovereignty. The EPA’s new rule reflects the federal government’s modern trend of treating tribes similarly to a state government in delegating administrative authority. This delegation of authority is a product of the Self-Determination Era, which commenced with President Richard Nixon’s 1970 speech to the Congress on Indian Affairs.[22] The federal government helps in promoting and recognizing tribal self-governance through government-to-government partnerships.[23] The Self-Determination Era refers to somewhat of an American Indian “nation-building” movement, which included establishing tribal governments, courts, police forces, and schools.

Second, the Revised Interpretation is important because only about forty of the 300 Indian Tribes with reservations have obtained the EPA’s approval for TAS status.[24]  This is not to say that tribes cannot regulate their waters without TAS approval, but the EPA’s recognition provides further funding and certification programs to help legitimize and strengthen tribal water management. Tribes generally lack a tax base upon which to develop water management, but with TAS recognition, tribes receive money for water management projects. Thus, allowing tribes with ‘checkerboard’ reservations (that is reservations with large swaths of both member and nonmember land) to bypass the Montana test will make it easier for tribes to receive funding from the federal government for maintaining and improving reservation water quality.

Overall, alleviating this administrative barrier will make it easier for tribes to implement CWA programs targeted at reservation water quality.  It will save tribes both time and resources in their TAS applications, as well as relieve the EPA of identifying on a case-by-case basis whether an individual tribe can meet the Montana test.  Moreover, this rule should encourage more American Indian tribes to apply for TAS status in order to successfully implement CWA programs.[25] This is an important step because clean water is paramount to Indian tribes, not just for sustenance, but also for spiritual, medicinal, and cultural reasons.[26] For example, the most recent tribe to receive TAS status, the Santa Ana Pueblo, views the water within their New Mexico reservation as important for maintaining its own cultural heritage.

Comments for this new rule closed on October 6, 2015. The EPA should make a final determination on whether or not it will implement the Revised Interpretation soon, but the agency has not provided a precise timeline.

The featured image is of Dead Horse Point on the Colorado River.  This photo belongs to Clement Bardot.  Use of his photo does not represent his endorsement of the Water Law Review.


Sources:

[1]  Washington, Dep’t of Ecology v. U.S.E.P.A., 752 F.2d 1465, 1471 (9th Cir. 1985) (quoting the Environmental Protection Agency announcement titled  EPA Policy for Program Implementation on Indian Lands released Dec. 19, 1980).

[2]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47430–31 (Apr. 7, 2015).

[3]  Id.

[4]  33 U.S.C. § 1251 (2015).

[5]  Dean B. Suagee, Tribal Self-Determination and Environmental Federalism: Cultural Values As A Force for Sustainability, Widener L. Symp. J., Fall 1998, at 229, 232.

[6]  Id. at 233.

[7]  33 U.S.C. § 1377 (2015).

[8]  See, e.g., 40 C.F.R. 35.580-88 (2016); 40 C.F.R. 35.600-15 (2016); 40 C.F.R. 35.630-38 (2016).

[9]  33 U.S.C.  § 1377(f).

[10]  Id.

[11]  Id. at § 1344.

[12]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39098-01 (Sept. 22, 1989).

[13] Requirements for Indian Tribes to administer a water quality standards program, 40 C.F.R. § 131.8 (2015).

[14]  Amendments to the Water Quality Standards Regulations That Pertain to Standards on Indian Reservations, 54 Fed. Reg. 39101 (Sept. 22, 1989).

[15]  Id.

[16]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg. 47430-02, 47433 (Aug. 7, 2015).

[17]  450 U.S. 544 (1981).

[18]  Id. at 565-66.

[19]  Revised Interpretation of Clean Water Act Tribal Provision, 80 Fed. Reg 47430-02 , 47436 (Aug. 7, 2015).

[20]  Id. at 47437.

[21]  Id.

[22]  Richard Nixon: “Special Message to the Congress on Indian Affairs,” July 8, 1970, available at http://www.presidency.ucsb.edu/ws/?pid=2573.

[23]  25 C.F.R. § 1000.4 (2016)(Congressional policy on tribal self-government).

[24]  Pueblo of Santa Ana Granted Federal Authority to Protect Water Quality, United States Environmental Protection Agency (Jul. 22 2015), http://yosemite.epa.gov/opa/admpress.nsf/0/0DC659BDC3EFBC5685257E8A0056A0A2 (last visited Dec. 13, 2015).

[25]  Id.

[26]  Marren Sanders, Clean Water in Indian Country: The Risks (and Rewards) of Being Treated in the Same Manner As A State, 36 Wm. Mitchell L. Rev. 533, 553 (2010).


Arizona Dep’t. of Water Res. v. McClennen, 360 P.3d 1023 (Ariz. 2015) (holding that: (i) Ariz. Rev. Stat. Ann. § 45-172 provides the only grounds for which the Arizona Department of Water Resources can deny an application for severance and transfer of a water right; and (ii) the statute defines “interested persons” as those with interests protected by § 45-172 and whose rights the transfer would affect).

In 2010, Freeport Minerals Corporation (“Freeport”) sent applications to the Arizona Department of Water Resources (“ADWR”) to sever water rights from Planet Ranch in Mohave County and transfer them to a wellfield near Wikieup. The proposed transfer would not physically remove any water, but rather it would give Freeport the right to use water for mining and municipal uses without losing priority.

Freeport previously entered into settlement agreements with the Arizona Game and Fish Department, the Hualapai Tribe, and the Department of the Interior, which Congress approved in the Bill Williams River Water Rights Settlement Act of 2014 (“Act”). The Act was scheduled to expire in December 2015 if Freeport failed to fulfill certain conditions, including the ADWR granting Freeport’s applications.

Upon receiving Freeport’s applications, the ADWR published notice in numerous Mohave County newspapers stating ‘any interested person’ could file a written objection. Mohave County (“County”) filed an objection to Freeport’s applications, arguing that the transfer would affect the county’s water supply, increase taxes, and was against the public interest. The ADWR rejected the County’s arguments, finding that the county did not have an affected water right. Additionally, the ADWR concluded it was not authorized to deny the applications on the basis it would cause an increase in tax burdens to residents or it would be against public interest. An administrative law judge upheld the ADWR’s decision finding that none of the County’s objections were based on the “limitations and conditions” enumerated in Ariz. Rev. Stat. § 45-172.

In December 2014, the County filed an appeal in superior court, which vacated the ADWR’s final decision in June 2015. Freeport and the ADWR filed appeals with the Arizona Court of Appeals and moved to transfer the case to the Supreme Court of Arizona (“Court”). The Court granted the petition for special action.

The Court first addressed whether the ADWR had authority to deny severance and transfer applications for reasons other than those listed in the statute. Section 45-172(A) provides: “[a] water right may be severed from the land to which it is appurtenant . . . [and] may be transferred for use . . . without losing priority theretofore established, subject to the following limitations and conditions.” One such limitation is that the ADWR director must publish notice of applications in a newspaper in the county where the drainage or watershed lies. The published notice must include that any interested person may file written objections within thirty days from the last day of published notice.

In construing this statute, the Court analyzed legislative intent. The statute identifies specific limits or conditions in approving water rights transfers. The Court found that the ADWR’s review of an application is a “licensing decision,” which prohibits the ADWR from basing its decision on any condition not specifically authorized by the statute.

The County argued that the ADWR has discretion under § 45-172(A) to consider other factors because the statute says water rights “may” be severed and transferred. However, the Court found “may” to refer to the ability to sever and transfer the water right. The Court reasoned that interpreting “may” to allow the ADWR broad discretion to deny an application overlooks the rest of the sentence stating “subject to the following limitations and conditions.” The County cited various statutes purportedly supporting that the ADWR could deny applications for reasons not listed in § 45-172(A), but the Court found them unconvincing. Thus, the Court found the ADWR did not abuse its discretion in denying the County’s objections, which were not listed in § 45-172(A).

The Court next addressed whether the County qualified as an “interested person” entitled to file objections to the transfer and severance applications. Because the phrase “any interested person” is ambiguous, the Court found it was subject to more than one meaning.

The County first argued that the Court should interpret the phrase “any interested person” as anyone having an interest or concern about the transfer and severance of water rights. The Court found this interpretation would allow almost anyone to file objections, rendering the word “interested” essentially meaningless. The Court specifically noted that words should not be construed in isolation, but rather taken together in context.

Read in context, the Court construed the phrase “any interested person” to mean any person having a statutorily protected interest that would be affected by the application for proposed transfer and severance. The Court concluded the County was not an “interested person” entitled to file an objection in this case because it had no such protected interest.

Second, the County contended that “interested persons” should encompass more than those persons who have existing water rights because the statute requires the director to give notice of the applications. The County reasoned that if “interested persons” were only those having an interest protected by statute, it could send notice directly to those persons, rather than circulating notice in a newspaper. The Court found this argument unpersuasive because publication requirements are not inconsistent with imposing limitations on who may file objections.

Third, the County argued it qualified as an “interested person” because approval of the severance and transfer would cause it injury. Specifically, the severance would increase tax burdens on county residents and could negatively effect water supplies. The Court found that this argument improperly conflated standing, which requires plaintiffs to allege sufficient injury in order to appear in court.

Fourth, the County claimed that the ADWR must first consult with the County before deciding on applications under Ariz. Rev. Stat. § 11-269.09(A). The County also contended it has an obligation under Ariz. Rev. State § 11-804 to protect water resources in the county. The Court found neither statute applied.

Last, the County argued the Court should construe § 45-172(A) liberally to “promote the ends of justice.” The County cited Armer v. Superior Court, in which the Court adopted this approach when interpreting the phrase “party beneficially interested.” Finding that “any interested person” was not synonymous with the phrase “party beneficially interested,” the Court declined to adopt this approach.

Accordingly, the Court vacated the superior court judgment and affirmed the ADWR’s final decision.

The featured image was taken near Phoenix, Arizona.  It is part of the public domain.