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.

Introduction

The Agua Caliente Band of Cahuilla Indians (“Agua Caliente”) holds impliedly reserved water rights in the Coachella Valley in Southern California.  President Ulysses S. Grant established the Agua Caliente’s reservation by Executive Order in 1876.  Today, water in the Coachella Valley is scarce, and the Agua Caliente seeks to satisfy the tribe’s needs by asserting that the tribe’s reserved water rights include the right to groundwater resources.  However, controlling law is unclear on the issue of whether tribal reserved water rights extend to groundwater.  State supreme courts are split on the issue.  The U.S. Court of Appeals for the Ninth Circuit (“Ninth Circuit”) will be the first federal court of appeals in forty years to address the issue.  Specifically, the Ninth Circuit will consider whether when the government created Agua Caliente’s reservation the government impliedly reserved rights to groundwater in the context of California’s correlative water rights framework.

Background on Federal Reserved Rights to Water

Federal law provides a framework for Native American tribes’ possession of water rights.  These tribal water rights impliedly arise from the establishment of the reservation.  The reservation grant thus provides a property right to the land and an implied right to sufficient water to fulfill the purposes of the reservation.  Winters v. United States was the seminal case that established the implied reservation doctrine.  The Supreme Court held in Winters that the Fort Belknap tribes gained the right to use unappropriated water from the Milk River for the reservation needs.

Tribal reserved rights vest at the creation of the reservation and hold priority over those of future appropriators.  Tribes do not abandon the reserved rights by nonuse.  Further, most federal reservations predate, and therefore hold priority over, state water law rights.  Prior court decisions further explain the application of Winters to groundwater.

Tribal Reserved Rights to Groundwater Recognized by Litigation

The Agua Caliente court found persuasive that every court, with the exception of the Wyoming Supreme Court in a 1989 decision, that has addressed the issue of whether Winters extends to groundwater held in the affirmative.  Many courts declined to directly address the issue, but acknowledged the possibility that Winters could encompass groundwater.  The cases that have previously recognized tribal reserved rights to groundwater are not abundant, but they followed one of two lines of reasoning.  Some courts relied on the hydrologic interrelationship between groundwater and surface water to find that Winters applies to both.  Other courts took a logical approach and reasoned that groundwater should be available to fulfill a water reservation along with surface water.

In In re Gila River System & Source, the Arizona Supreme Court was the first court to expressly hold that the federal reserved rights doctrine extended to groundwater.  The Gila court’s 1999 opinion acknowledged that the hydrological connection between groundwater and surface water is such that groundwater pumped from a distance may significantly diminish the surface flow.  Nonetheless, Gila deemed the distinction between groundwater and surface water as insignificant for purposes of applying the reserved rights doctrine.  Even though the Gila court expressly extended the reserved rights doctrine to groundwater, it restricted tribal rights to groundwater.  Gila limited tribal reserved rights to groundwater to “where other waters were inadequate to accomplish the purpose of the reservation.”

In 2002, the Montana Supreme Court recognized a tribal federal reserved right to groundwater in Confederated Salish & Kootenai Tribes v. Stults.  In Salish, the court prohibited the state agency from issuing water use permits until the Confederated Salish and Kootenai Tribes quantified their water rights.  Like Gila, the court noted that the groundwater must be necessary to fulfill the purposes of reservation, but refrained from determining whether the groundwater at issue met this standard.  Instead, the court ruled that the tribes’ federally reserved water rights included groundwater.  The court’s holding was rooted in logic.  The court failed to find a reason to exclude groundwater from the tribes’ reserved water rights, so it refrained from limiting the tribes’ rights in such a way.

The hydrological connection between groundwater and surface water formed the basis of the Ninth Circuit’s extension of Winters to groundwater in United States v. Orr Water Ditch Co.  In that case involving the Pyramid Lake Indian Reservation, the court reasoned that the reciprocal hydraulic relationship between groundwater and surface water is such that allocations of groundwater would predictably affect the surface water in a nearby flowing river.  Further, the court interpreted the decree that reserved water in the Truckee River included a right to groundwater if the Pyramid Lake Paiute Tribe needed groundwater to fulfill the purpose of the reservation.  The court additionally held that because the tribe’s decreed rights were the two most senior water rights in the Truckee River and those rights extended to groundwater, other users’ allocations of groundwater may not adversely affect the tribe’s right to the surface water.

In New Mexico ex rel. Reynolds v. Aamodt, a New Mexico district court extended Winters to groundwater for hydrological reasons.  This case involved the Pueblo Indians’ prior right to water in a Rio Grande tributary for domestic and irrigation uses.  The decree gave the tribe water rights appurtenant to its irrigated acreage.  The court held that water rights appurtenant to the tribe’s land included groundwater because groundwater and surface water were physically interrelated, and therefore both were appurtenant to the tribe’s land.

Tribal Reserved Rights to Groundwater Recognized by Settlement

Indian Tribes have entered into settlement agreements to resolve disputes over federally reserved rights to groundwater.  Many of these settlement agreements expressly recognized tribal federally reserved rights to groundwater.

For example, a 2007 settlement agreement between the United States, the Lummi Indian Nation, and the State of Washington recognized the tribe’s right to groundwater on the Lummi Reservation in Northwest Washington.  The agreement resolved a water rights case in which the U.S. District Court for the Western District of Washington held that Winters rights on the Lummi Reservation extend to groundwater.  The agreement gave the Lummi the right to groundwater on the Lummi Peninsula.  Specifically, the agreement allocated the right to use 120 acre-feet per year of groundwater to the State of Washington, Department of Ecology, and the remainder of the groundwater to the Lummi.  The Lummi gained the exclusive right to regulate the use of groundwater underlying the reservation, and the agreement prohibited groundwater withdrawal unless the Lummi had authorized the withdrawal.

In addition to court settlements, state and federal settlement acts have resolved disputes over groundwater rights.  Many of these settlement acts recognize a tribal reserved right to groundwater.  One such federal settlement act is the Snake River Water Rights Act of 2004.  This act resolved water rights disputes between the Nez Perce Tribe, the State of Idaho, and private water rights holders.  The settlement act clarified water rights in the Snake River Basin in Idaho, and it allocated to the tribe the right to groundwater.  Focusing on the hydrological connection between groundwater and surface water, the settlement quantified the tribe’s right to surface water and stated that the right extends to the groundwater source beneath.

Limitations on Use of Tribal Reserved Rights to Groundwater

Several courts that recognized tribal reserved rights to groundwater placed limitations on the rights.  Federal reservation grants originally derived from the idea that the water is impliedly reserved to the extent that the water is necessary to fulfill the purpose of the reservation.  The Ninth Circuit has broadly defined the purpose of the reservation as it relates to water rights in order to provide a home for native peoples.  Courts that analyzed groundwater in the context of Winters considered whether groundwater was necessary to fulfill the reservation’s purpose.  The reservation grant itself thus set an initial, and broad, limitation on groundwater rights.  Courts have limited tribal reserved rights to groundwater based on quantity, pumping maximum, purposes of groundwater usage, sales outside the reservation, and necessity.

The Nevada Supreme Court limited the quantity of groundwater allocations on the Pyramid Lake Indian Reservation in Pyramid Lake Palute Tribe of Indians v. Ricci.  The court established the limitation on groundwater as the amount of water in the Orr Ditch Decree adjudication.  The court held that while the decree impliedly gave the Pyramid Lake Palute Tribe a right to groundwater, the decree restricted that right to the tribe’s personal yield of water as set forth in the decree.  Because the specified amount of water in the decree represented the tribe’s full adjudication, the tribe had no right to groundwater in excess of that amount.

In a 1990 settlement agreement between Idaho and the Shoshone-Bannock Tribes, the tribes discussed the right to water under, arising on, flowing across, adjacent to, or otherwise appurtenant to the reservation.  The agreement limited the tribes’ respective rights in terms of necessity: the agreement restricted the tribes’ use of groundwater to instances where their diverted water from other sources was insufficient.  If the one of the tribes diverted less than the agreed-upon quantity, the tribe had the exclusive right to divert groundwater.

A settlement contract between the Jicarilla Apache Tribe and the United States limited groundwater rights with regard to the effect on the surface water sources.  The contract addressed water rights in the Navajo River, Navajo Reservoir, and San Juan-Chama Project.  Under the contract, the tribe had the express right to adjudicate water rights from either the groundwater or surface water.  The tribe gained the right to lease its water off-reservation, but the contract prohibited the tribe from withdrawing groundwater if doing so would adversely impact the surface water source.  As an additional measure relating to the protection of surface water sources, the contract required the tribe to implement a conservation program.

Previous Cases and Potential Guidance to Examining Agua Caliente Defendants’ Arguments

The Agua Caliente court distinguished the water at issue from other cases recognizing tribal reserved right to groundwater.  Many prior cases focused on the hydrological connection between surface water and groundwater to extend Winters to groundwater.  However, Agua Caliente did not involve hydrologically connected groundwater and surface water.  The defendants in Agua Caliente argued that the tribe did not need groundwater to fulfill its reservation’s purpose, so Winters did not apply.  Various courts have previously considered this argument, but each court implemented a somewhat different solution.  Nonetheless, reference to the history and trends of previous cases may help define and clarify the scope of the reserved rights doctrine in relation to the Agua Caliente groundwater.

Daphne Hamilton, J.D., University of Denver College of Law, 2016

Image: Cahuilla Tewanet Vista Point, Santa Rosa / San Jacinto Mountains, California.  Flickr user Tony Webster, Creative Commons.

 

Sources:

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

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

Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981).

Confederated Salish & Kootenai Tribes v. Stults, 59 P.3d 1093 (Mont. 2002).

In re Gila River Sys. & Source, 989 P.2d 739 (Ariz. 1999).

In re Snake River Basin Water System, 764 P.2d 78, 81 (Idaho 1988), agreement ratified by Snake River Water Rights Act of 204, Pub. L. No. 108-447, 118 Stat. 2809.

New Mexico ex rel. Reynolds v. Aamodt, 618 F.Supp. 993, 1010 (D.N.M. 1985).

Pyramid Lake Palute Tribe of Indians v. Ricci, 245 P.3d 1145 (Nev. 2010).

United States v. Orr Water Ditch Co, 600 F.3d 1152 (9th. Cir. 2010).

United States ex rel. Lummi Indian Nation v. Washington, Dep’t of Ecology, (W.D. Wash. Nov. 20, 2007) (approving settlement agreement).

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

Settlement Agreement: Contract between the US and the Jicarilla Apache Tribe (Dec. 8, 1992).

Royster, Judith V., 47 Idaho L. Rev. 255, Conjunctive Management of Reservation Water Resources: Legal Issues Facing Indian Tribes (2011).

The 1990 Fort Hall Indian Water Rights Agreement (Jul. 10, 1990).

 


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.

Introduction

Many in the United States take water for granted.  It is a commodity that typically comes out of a faucet clean and at a low cost.  However, not everyone in the United States has this amenity.  In rural areas, residents commonly rely on wells drawing out water that is not pure for consumption.  Many Native Americans, residing in their sovereign nations within the United States, lack access to clean water for drinking, bathing, cooking, and other every day uses.  There is a question of how these Native Americans can ensure their water is of the quality other United States citizens take for granted.

It seems that only drastic events make water a discussion at the dinner table; events like the Gold King Mine spill, where three million gallons of metal-polluted water spilled forth from an abandoned mine turning the picturesque clear water of the Animas River yellow-orange.[1]  Both the Southern Ute Tribe and the Navajo Nation are directly downstream of the polluted Animas River in southern Colorado and across the border in New Mexico.  The Animas is a tributary of the San Juan River, which flows through over 200 miles of the Navajo Nation.[2]  These tribes rely on the river to grow food, for drinking water, and for their modern municipal and industrial needs.  How are Native American tribes to ensure the reserved water they have a right to use is of the quality they expect and need to sustain themselves?  This blog discusses the notion that some inherent right to quality may arise from the Winters doctrine.  It also considers other means for federally recognized tribes to ensure their water is of a useable quality.

Water Quality in Winters Doctrine

Under Winters, the United States Supreme Court held that Congress set aside land for the Native American tribes to live on, and, along with the land, Congress impliedly reserved water.[3]  Congress’ implied reservation of water for the land, and any other reserved federal land, was based on the amount of water necessary to fulfill the reservation’s need when it was established.[4]  Presently, courts acknowledge both reserved Native American water for growing crops[5] and water for traditional tribal uses, such as hunting and fishing.[6]

Some legal scholars believe that Winters may apply to the quality of water as well.[7]  In the Winters opinion, Justice McKenna wrote, “in furthering and advancing the civilization and improvement of the Indians. . . it is essential and necessary that all of the waters of the river flow down the channel uninterruptedly and undiminished in quantity and undeteriorated in quality,”[8] allowing for the tribes to argue an inherent right to both water quantity and water quality.

The Hopi Tribe in northeastern Arizona recently made an argument for their right to water quality. [9]  The United States Court of Appeals for the Federal Circuit (“Court”) heard the case.[10]  In Hopi Tribe the Court held that the United States did not have a fiduciary duty, under Winters, to ensure the quality of Native Americans’ water supply.[11]  The Hopi Tribe brought the action seeking monetary relief because of high arsenic concentrations in their water supplies.[12]  Arsenic is a naturally occurring contaminant found in rock and soils.[13]  The Hopi Tribe wanted funds to improve their infrastructure and ability to provide clean water to the reservation.[14]  The Hopi Tribe argued that the United States had an affirmative duty to ensure water quality on the reservation.[15]  They argued this duty existed based on the Winters doctrine and the Act of 1958,[16] holding in trust Hopi lands as described in 1882.[17]

The Court denied the Hopi Tribe’s argument for two reasons.  First, the Hopi Tribe’s argument that the United States had a fiduciary duty to act did not persuade the Court.[18]  No language in the Act of 1958, or the Executive Order of 1882, gave weight to this argument.[19]  Second, the Court took issue with why the contaminant was in the water.[20]  The Hopi Tribe could not drink their water because of arsenic contamination, but this contamination is natural.[21]  Natural erosion, as opposed to third-party actions, resulted in the unsafe amount of arsenic in the reservation water.[22]  The Court acknowledged that in a situation where an upstream user affects the water quality, the United States might have a duty to act.[23]  The Court held, however, that the United States had no fiduciary responsibility to improve the water quality when the contamination occurred naturally.[24]

The Court did not find a connection between water quality and Winters doctrine in Hopi Tribe, but nevertheless there is still an argument for an inferred connection between the Winters doctrine and water quality standards.  The Court’s decision in Hopi Tribe left room for Native Americans to argue for a right to water quality under Winters.  The Court’s dicta in Hopi Tribe seems to assert that the United States does have a duty to act when a third-party diminishes the water quality, as opposed to harmful, naturally occurring minerals.  The United States District Court for the District of Arizona (“District Court”) found such a duty in United States v. Gila Valley Irrigation District.[25]  The District Court identified two reasons why the Apache Tribe’s water was tainted.[26]  First, upstream irrigators diverted the entire flow of the stream.[27]  When the irrigators returned the water to the stream it carried with it salts from the irrigated lands.[28]  Second, upstream water users pumped groundwater in excess, particularly when flows in the Gila River were low.[29]  Groundwater has higher salinity than surface water, so the water coming back into the Gila River at low flow had a higher salinity than what naturally occurs.[30]  The upstream users, through these two acts, raised water salinity to an unusable level for the Apache Tribe’s salt-sensitive crops.  On appeal, the Ninth Circuit affirmed the District Court’s decision that 1) the landowners’ diverted water was strictly for agricultural irrigation use; 2) the district court’s interpretation of the Globe Equity consent decree of June 29, 1935, Article VIII in all of its parts; and 3) that the “lower valley diverters in Gila Crossing District were not entitled to priority call as against upstream diverters.”[31]

The Gila Valley case contrasts the Hopi Tribe case.  When interpreted together, it is likely that upstream users are liable for the polluted water that a tribe uses downstream.  Further, the United States has a duty to ensure water quality only when it has a fiduciary duty to the tribe.  However, when natural causes lead to water pollution, the United States has no duty to provide the tribe with clean water, even when a fiduciary duty exists.

Another Means of Ensuring Clean Water

To be sure, no federal court has stated a clear rule regarding an implied right to water quality under Winters.  However, Native American tribes have other means of ensuring their water is of the quality necessary for agricultural and other purposes.  The Clean Water Act allows for the Environmental Protection Agency to treat tribes as states.[32]  A Native American tribe, to be treated as a state, has to show that it has a governing body with governmental powers, that it will perform functions related “to the management and protection of water resources,” and that the tribe is capable of such authority.[33]  The tribes that qualify gain the benefit of receiving assistance from the United States to restore water quality where contaminated.[34]

Once the United States recognizes the Native American tribe as a state under the Clean Water Act, the tribe is able to set its own standards on water quality.[35]  The tribe’s water quality standards must be reasonable and enforceable against upstream water users.[36]  This power gives federally recognized Native American tribes the ability to set their own enforceable water quality standards, and provides the federal government with assistance in ensuring water quality improvements in the United States.[37]

There are several barriers that prevent tribes from taking advantage of this statute.  One barrier is acquiring the necessary capital to sustain a governing body that can handle the responsibilities that come with governmental powers.  Further, tribes bring projects under this statute that are likely costly, even with federal assistance.  The statute imposts an additional barrier in that only federally recognized tribes may exercise governmental authority over water quality.  State governments and the Federal government do not always recognize the same tribes.[38]  Therefore, while tribes may seek federal assistance to ensure water quality on their reservations, state-imposed hurdles prevent many tribes from being able to request that assistance.

Conclusion

Despite what some legal scholars believed as far back as twenty years ago, the courts have yet to decide a case that addresses whether Winters applies to a right to water quality.[39]  Professor Judith Royster has suggested that if the courts find Native American tribes have a right to water quality it will likely be closely tied to the quantity of water.[40]  While Winters remains open regarding water quality, there are other avenues for federally recognized tribes to ensure their water is of a necessary quality under the Clean Water Act.  Those means, however, are not without obstacles.[41]

W. James Tilton, J.D., University of Denver School of Law, 2016

Image: Coahuilla Indian well at Martinez, Palm Springs, ca.1903.  Flickr user Ashley Van Haeften, Creative Commons.

[1]  Gold King Mine Could have Been Prevented, (Nov. 15, 2015), http://indiancountrytodaymedianetwork.com/2015/ 11/15/gold-king-mine-could-have-been-prevented-162427.

[2]  Id.

[3]  Winters v. U.S., 207 U.S. 564, 576–77 (1907).

[4]  U.S. v. New Mexico, 438 U.S. 696, 701 (1978).

[5]  Winters, 207 U.S. 564, at 569–70, 576.

[6]  U.S. v. Adair, 723 F.2d 1394, 1408–09 (9th. Cir. 1983).

[7]  See generally Cynthia Brougher, Indian Reserved Water Rights Under the Winters Doctrine: An Overview, Congressional Research Service (2011), http://nationalaglawcenter.org/wp-content/uploads/assets/crs/ RL32198.pdf; Judith V. Royster, Water Quality and the Winters Doctrine, 107 Water Resources Update 50 (1997), http://opensiuc.lib.siu.edu/jcwre/vol107 /iss1/10/; Mark E. Chandler, A Link Between Water Quality and Water Rights: Native American Control Over Water Quality, 30 Tulsa L. J. 105, 112 (1994) http://digitalcommons.law.utulsa.edu/tlr/vol30/iss1/3.

[8]  Winters, 207 U.S. 564 at 567.

[9]   Hopi Tribe v. U.S., 782 F.3d 662 (Fed. Cir. 2015).

[10]  Id.

[11]  Id. at 668–69.

[12]  Id. at 665.

[13]  Id.

[14]  Id. at 665–66.

[15]  Id. at 669.

[16]  An Act to Direct the Secretary of the Army to Convey Certain Property Located at Boston Neck, Narragansett, Washington County, R.I., to the State of Rhode Island, Pub. L. No. 85-548, 72 Stat. 403 (1958), https://www.gpo.gov/fdsys/granule/STATUTE-72/STATUTE-72-Pg403-2/content-detail.html.

[17]  Executive Order for Moqui (Hopi) Reservation, (Dec. 16, 1882), Indian Affairs: Laws and Treaties. Vol. I, Laws (Compiled to December 1, 1902), 805, Compiled and edited by Charles J. Kappler. Washington: Government Printing Office, 1904, http://digital.library.okstate.edu /kappler/vol1/html_files/ARI0801.html.

[18]  Hopi Tribe, 782 F.3d at 668–69.

[19]  Id. at 669.

[20]  Id.

[21]  Id.

[22]  Id. at 665–66.

[23]  Id. at 669.

[24]  Id.

[25]  920 F.Supp 1444 (D. Ariz. 1996).

[26]  Id. at 1450.

[27]  Id. at 1451.

[28]  Id.

[29]  Id. at 1450.

[30]  Id.

[31]  Id.; see also United States v. Gila Valley Irrigation Dist., 117 F.3d 425, 426 (9th. Cir. 1997) (affirming the United States district court’s reasoning and findings).

[32]  33 U.S.C.A. § 1377 (June 2014).

[33]  Id. at (e).

[34]  See §§ 1377 and 1251(g).

[35]  Mark E. Chandler, A Link Between Water Quality and Water Rights: Native American Control Over Water Quality, 30 Tulsa L. J. 105, 112 (1994), http://digitalcommons.law.utulsa.edu/tlr/vol30/iss1/3.

[36]  Id. at 118.

[37]  See 33 U.S.C.A. § 1383(c).

[38]  See Federal and State Recognized Tribes, National Conference of State Legislatures, (2016) http://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx.

[39]  Chandler, supra note 35.

[40]  Judith V. Royster, Water Quality and the Winters Doctrine, 107 Water Resources Update 50 (1997), http://opensiuc.lib.siu.edu/jcwre/vol107 /iss1/10/.

[41]  Id.


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/.


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).


“These are some of the things wilderness can do for us. That is the reason we need to put into effect, for its preservation, some other principle that the principles of exploitation or “usefulness” or even recreation. We simply need that wild country available to us, even if we never do more than drive to its edge and look in. For it can be a means of reassuring ourselves of our sanity as creatures, a part of the geography of hope.”

Wallace Stegner, “Wilderness Letter”

HOW THE WEST WAS WON:

The settlement of the American West is predominantly a story of man’s ingenuity apropos of the water resource. Migration towards the Pacific in the nineteenth-century revealed many disheartening truths concerning the alien lands West of the Mississippi River, especially with regard to the availability of water. The land was abundant and full of economic promise, but the means by which to raise it were uncertain. Even so, our growing nation was hell-bent on conquering the West and, therefore, developing easy access to water became the objective.

Early estimations for successful settlement of the West, however, were dour at best. Famously, John Wesley Powell warned that “[m]any droughts will occur; many seasons in a long series will be fruitless; and it may be doubted whether, on the whole, agriculture will prove remunerative.” What Powell failed to consider, perhaps, is the tremendous potential of human inventiveness. By relying on luck, technological innovation, and an equal measure of reckless ambition, civilization was realized in the West. Nevertheless, the consequences that Powell envisioned continue to play out to this day. Many fear that soon we will reach a juncture where no amount of cleverness and scientific bravado can tame nature’s irregular hydrology. The possibility then becomes – with regard to water’s continued use and availability in the American West, has man’s reach finally exceeded his grasp?

MAKING THE CASE FOR NONUSE:

As the recent drought reaches new and frightening dimensions in much of the West, and especially in California, water users and state enforcers alike are scrambling to identify a method of addressing unprecedented shortages. In the western states where drought has not yet reached California-level magnitudes, its imminence proves equally disconcerting. For these states, such as Colorado, it is not a question of if, but when.

Amidst current efforts to reduce the threat of drought and shortage is a reinvigorated push for conservation, where nonuse of a water right has been given new import, to include legal recognition. In 2013, Colorado Governor John Hickenlooper called for the drafting of a new water plan that would analyze strategies for increased conservation and reuse of treated wastewater. The water plan, the first of its kind in Colorado, is partially designed to confront the drought head-on, and although the focus remains on divvying up appropriate amounts of water to meet growth projections across the Front Range, the preservation of healthy river systems has been encouraged with equal vigor. The operative effect of the plan is sure to be contentious, as concerns for conservation across the Western Slope clash with demands for increased water diversions to meet domestic needs and population growth in the Front Range.

Colorado’s emphasis on conservation in regards to combatting drought and attendant shortages represents a new philosophy amongst western states. Against this conservation backdrop, however, the dominant theory continues to focus on how to use or reuse available water most effectively to meet human demands. This ideal is ideologically anthropogenic, and little if any concern is given to the effects that the drought will have on the natural environment once it has run its course. In times of environmental uncertainty, the effects of a solely-anthropogenic agenda take on added significance, as man grapples with the preservation of a finite resource and the expectations for its use.

According to many, we are currently living through a water crisis in the West. Although many in Colorado take for granted water’s availability – and an uncharacteristically wet summer in 2015 did nothing to counteract this assumption – the reality of the situation is that in order to avoid California’s recent fate, residents must force conservation onto the agenda. Awareness of the risks is critical, and Colorado has encouraged the use of its imminent water plan (set to be released in December of 2015) as an educational tool for benefit of the public. Nevertheless, educating the public is no simple task, and championing the effectiveness of nonuse for conservation of a resource that is so freely accessible is no less difficult.

In the face of these uncertainties, a question arises: does non-use for purposes of conservation play any critical role in a region that is routinely paralyzed by the effects of drought? At microcosmic level, some water users in Colorado would answer that question in the affirmative, and early results are promising. In anticipation of the Colorado Water Conservation Board’s new water plan, water rights owners are distancing themselves from Colorado’s timeworn “Use It Or Lose It” rule, which has been at the heart of water law in the state ever since its inception. In a region where the effects of past droughts have had tremendous impacts on both the economic and cultural pulse of communities, the benefits of focusing more on conservation and less on use could be enormous. In fact, in 2013, Colorado’s General assembly passed a law allowing for an owner of water rights to leave water unused without fear of penalty or revocation of the water right, provided that the owner is enrolled in a conservation program and is granted local approval.

Benefitting by this safe harbor provision, drought-conscious ranch owners and other water rights holders in Grand County and Aspen are spearheading a new movement whereby users leave water in streams and tributaries, rather than abandoning their rights to any excess waters. In Colorado, long-standing doctrines governing the use of water were often incongruous to conservation efforts. After the passage of the 2013 law, a shift in perception is currently underway. Appropriators now face less legal obstacles when they decide to exercise restraint in exercising their water rights.

Recently in Glenwood Springs, the Colorado River basin roundtable (a collective of regional water-supply planners), have prioritized an ongoing process to identify methods by which water can be left in the heavily used Roaring Fork River watershed. Pitkin County went one step further by giving support to a $35,000 grant to help a Front Range nonprofit move forward with its plan to provide a pathway for water right holders to leave more of their allotted water rights in the Roaring Fork, made possible without penalty by the 2013 law. Unsurprisingly, the city of Aspen has given its blessing to both the grant and to any proposed effort to improve upon the health of the Roaring Fork. Although support at this level is no doubt promising, the overall success of these efforts hinges on the individual user’s willingness to forsake a portion of his or her allotted water rights in order to conserve river flows. To be sure, any reluctance is to be expected; but the reward of compensation without fear of penalty is certainly an enticing offer. Efforts already undertaken by ranchers in Aspen and Grand County, therefore, represent an encouraging start.

ENVIRONMENTAL BENEFITS:

Water consumers on the Front Range have certain expectations regarding the use of water. The manufactured urban environment – with its golf courses, green lawns, and public parks – provides residents with a much-needed respite from the detachment attendant to urban life. Unfortunately, the consequences these luxuries have on the natural environment, from which they extensively borrow, are too often ignored. As the Front Range continues to expand its base, the Western Slope bears a heavy burden in keeping its river ecosystems healthy. Within this framework, nonuse could be hugely influential, especially considering that the whole of Colorado’s Front Range depends entirely on healthy rivers in the Western Slope for much more than irrigation of golf courses.

The environmental benefits behind this method are easily understood: irrigators and other users will leave unused water they have rights to in the river, and the water saved will then serve to sustain river ecosystems. Convincing domestic users to cut back on their water consumption is difficult in its own right, but convincing water users that depend on their appropriative rights for their economic livelihood, is another thing entirely.

Across parts of Colorado’s Western Slope, there seems to be at the very least a middling interest among ranchers to cut back on the use of excess waters. If these users can be convinced to leave even a small portion of their waters unused, the aggregated benefits could be substantial. According to Amy Beatie, director of the Colorado Water Trust, “[o]n a stream, one cubic foot a second can make a big difference [with regard to environmental benefits].”

In this way, conservation via nonuse becomes a part of the discourse in how we tackle foreseeable drought problems, while simultaneously protecting the natural environment. Unfortunately, and notwithstanding the importance of water conservation, this discourse has been complicated by the fact that non-use is chiefly at odds with the central tenets of the appropriative regime, forming the very foundation of water rights in Colorado. Inevitably, allowing for a right to nonuse of the water amenity has been met with its fair share of criticism.

NONUSE AND THE COLORADO DOCTRINE:

At the heart of the law of water in Colorado is the concept of beneficial use. Once an appropriator puts water to a beneficial use, the right becomes absolute relative to junior appropriators. The term “beneficial” has proven to be remarkably flexible, and any attempt to apply a precise definition is stifled due to the evolution of economic, cultural, and social norms regarding water and its many uses. In recent decades, the idea of conservation has entered the fray regarding the ever-evolving definition of a beneficial use. Indeed, Colorado has already recognized the value of environmental conservation by including the protection of instream flows as a lawful beneficial use.

For a system that places such importance on the efficient use of water, it is not difficult to understand the precarious position a water rights holder places himself in with regard to other users in advocating for nonuse. The appropriative regime’s old-fashioned preference towards a “use-it-or-lose-it” rule, primitive as it may seem, still holds sway in water’s legal identity.

Traditionally, water rights holders in Colorado who do not use all the water entitled to them via their appropriative right faced the possibility of curtailment, and even outright legal abandonment of that right. Even today, when a water right holder uses less than an allotted maximum over a statutory period, any water not being diverted “goes up for grabs to other rights holders next in priority.” In essence, this system conceives a race-to-capture dynamic amongst users, whereby fellow users remain vigilant of any non-used portions of a specific watercourse, and then race to capture whatever is left unused or forgotten. Moreover, waste is fiercely prohibited in a prior appropriation system, and water used for any purpose beyond what was originally intended is prohibited. Any water right that is not continuously put to an active beneficial use can be lost.

CRITICISMS:

It comes as no surprise then that many water users find the new trend of conservation of water via nonuse to be repugnant. The importance of water in Colorado, and elsewhere in the West, goes far beyond its economic utility. Water holds important social, cultural, and recreational value for many diverse actors, and thus any action, legislative or otherwise, that is seen as curtailing any of these rights is immediately met with suspicion, and just as often this suspicion is joined by outrage. This is true of anything that diminishes a person’s long-standing rights, but in a region where water continues to be scarce, the backlash is even more emphatic.

In the present example of nonuse conservation in Aspen and Grand County, many competing users staunchly argue that senior rights must be reduced if the rights holder is not exercising his or her full allotment, in keeping with the principles of Colorado water law that have endured for more than a century. Along these same lines, critics argue that because a core tenet of the Colorado Doctrine holds that a water right holder is to use only an amount of water that is reasonably necessary to fulfill the intended beneficial use, any unused water should be released for appropriation by junior users, otherwise those unused portions constitute waste.

In response to these arguments, John McKenzie, director of the Ditch and Reservoir Company Alliance, explains that in the absence of the safe harbor provided by the 2013 law, agricultural irrigators are induced to flood fields with excess amounts of water out of fear that any unused portions will then be subject to abandonment.

In addition, residents in the more densely populated Front Range argue that they also have individual water needs, beyond those primary uses such as domestic consumption, that befit a certain quality of life. Representatives from Denver and Aurora argue that urbanites are entitled to a “reasonable residential experience,” claiming that the ability to have an irrigated lawn or golf course matches certain recreational amenities specific to mountain communities in terms of importance. One should not have to read too much in to this assertion to recognize the imbalance. The footprint left by the whitewater enthusiast or angler on a river ecosystem pales in comparison to the diversions wrought by the amusement park owner or golf course superintendent. Moreover, the former largely enjoys their recreational activity on nature’s own terms, giving as much as they take, and leaving a river in as pristine a condition as possible so that the activity may continue.

True enough, maintaining healthy urban environments is critical, but in balancing the urban with the natural, one must identify and respect the leverage the former has with regard to the latter in terms of environmental degradation. The equation is surely not equal on both sides, and the Western Slope should be allowed to take its own preventative measures concerning that most vital of natural resources. It is within this framework that nonuse could have a profound impact.

PARTING THOUGHTS:

Thus, what results from the example in Grand County and Aspen is a veritable catch-22; in an effort to ensure that water is not put to waste (as the appropriative regime defines the term “waste”), it is the exact opposite that occurs. Preventing economic waste perpetuates environmental waste and degradation. Profit maximization and the “use-it-or-lose-it” ideal has a pernicious effect on environmental conservation, and this is true even more so during times of drought. As Willow Creek rancher Witt Caruthers explains, “Colorado’s water system created an incentive to use our water even in times when it’s not absolutely necessary. When you’re under that pressure to use it or lose it, you’re almost forced to abuse it.”

We must remain practical when it comes to diverting and using water in times of shortage. Sustainability for future generations must not be ignored, nor should we remain tilted towards temporary solutions that keep festering wounds dormant. Moreover, conservation should not bend in the face of urban luxury. If we are to continue to survive in the arid regions of the West, we must give nature the respect it is due. Centuries after Howell pleaded his case for abstention, we have moved far beyond the point of no return.

For the ranchers and irrigators in Grand County and Aspen, and for the rest of us who occupy the fabled West, where water is so very important to the social fabric, the issue remains: how can we ensure that our waters are preserved not only in times of drought, but also for their own sake, and for the sake of all those both present and future that depend on water for their survival. To this we continue to search for an answer, but at least in the interim, we have become aware of the benefits of nonuse.


Sources:

John Wesley Powell, Report on the Lands of the Arid Region of the United States, With a More Detailed Account of the Lands of Utah, 1, 3 (1879) http://pubs.usgs.gov/unnumbered/70039240/report.pdf.

Bruce Finley, Colorado water plan draft goes to Hickenlooper to address shortfall, THE DENVER POST (Dec. 10, 2014).

John Stroud, Conservation, urban interests clash at water board meeting, POST INDEPENDENT (Sept. 11, 2014) http://www.postindependent.com/news/12984610-113/colorado-conservation-plan-river.

Jedidiah Brewer, Robert Glennon, Alan Ker and Gary Libecap, Transfering Water in the American West: 1875-2005, 40 U. Mich. J. L. Reform 1021, 1022-27 (2007).

With water, Coloradans are all in the same boat, THE DAILY SENTINEL (Sept. 13, 2015) http://www.gjsentinel.com/opinion/articles/with-water-coloradans-are-all-in-the-same-boat.

Bruce Finley, Colorado cuts into use-or-lose system that caused water waste, THE DENVER POST (June 16, 2015), http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.

COLO. REV. STAT. ANN. § 37-92-305(c)(II)(A) (2015).

Brent Gardner-Smith, Colorado River roundtable prioritizes water projects, ASPEN JOURNALISM (March 30, 2015) http://aspenjournalism.org/2015/03/30/colorado-river-roundtable-prioritizes-water-projects/.

Collin Szewczyk. Project aims to restore Roaring Fork flow levels, ASPEN DAILY NEWS (Aug. 31, 2015) http://www.aspendailynews.com/section/home/168027.

Sarah F. Bates, Reed D. Benson, James N. Corbridge, Jr., David H. Getches, A. Dan Tarlock, WATER RESOURCE MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY 134 (Foundation Press 7th ed. 2002).
Colo. Dept. of Nat. Resources, Instream Flow Program, http://cwcb.state.co.us/environment/instream-flow-program/Pages/main.aspx (last visited Sept. 13, 2015) (explaining that because of water scarcity and environmental characteristics, reasonable preservation of the natural environment in Colorado is paramount and, therefore, the Colorado Water Conservation Board distributes rights for nonconsumptive uses of water in an effort to preserve and maintain water levels and quality to a reasonable degree). Colorado cuts into use-or-lose system, http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.

Gregory J. Hobbs, Jr., Bennett W. Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L. Rev. 841, 877 (1989).

Bruce Finley, Colorado cuts into use-or-lose system that caused water waste, THE DENVER POST (June 16, 2015), http://www.denverpost.com/environment/ci_28319640/colorado-cuts-into-use-or-lose-system-that.


Editor’s Note: This piece is part of a four-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that studies the public trust doctrine, the stark contrast of its history and development in Colorado and California, and the implications of its extension to groundwater.

INTRODUCTION

The public trust doctrine (“PTD”), moldable to each state’s individual needs, follows the central premise that the state, as trustee, holds natural resources such as water in trust for the benefit of its citizens.[1] The United States Supreme Court has opined that the doctrine’s definition and parameters are a matter of state law and that each state can choose to create a public trust or not.[2] Unlike California and various other states, Colorado has never adopted the doctrine, instead relying on its system of prior appropriation to protect public interests. The Colorado Constitution declares surface water (and tributary groundwater[3]) “to be the property of the public” that is “dedicated to the use of the people of the state.”[4] The right to divert water for beneficial use “shall never be denied,” the state constitution continues.[5] Colorado courts have consistently held that the state’s constitution fails to provide a foundation for the implementation of a public trust for water.[6] Despite the lack of a PTD in Colorado, the state has made efforts to work within the prior appropriation system to preserve the natural environment, fish, and wildlife,[7] and to protect recreational uses.[8]

HOW COLORADO ADDRESSES PUBLIC INTEREST AND ENVIRONMENTAL CONCERNS

Unlike California, where courts have expanded the PTD to encompass environmental protection in the realm of surface water and, recently, some tributary groundwater use,[9] Colorado, in the absence of a state PTD, has created specific statutory programs and beneficial uses for water to address public interests such as recreation and the environment.[10] Specifically, Colorado law permits the state to appropriate or acquire instream flow rights that operate within the prior appropriation system to protect minimum streamflows for fish and other purposes. Colorado has also addressed recreational concerns by expanding the definitions of beneficial use and diversion to permit “recreational in-channel diversion” decrees, which have the byproduct of also simultaneously protecting flows necessary to protect the natural environment.[11] Both of these expanded definitions of beneficial use include a caveat that constrains who can appropriate water for such uses.[12] A brief look into the legislative and legal history of these adaptations to beneficial use highlights how Colorado’s prior appropriation law endeavors to protect public interests as well as the environment in the absence of a robust PTD.

INSTREAM FLOWS

Statewide concern about aquatic habitat spurred legislators to expand the definition of beneficial use in Colorado in 1973.[13] The expanded definition enabled the appropriation of environmentally-protective minimum flows in Colorado lakes and streams.[14] Under Colorado law, beneficial use is

the use of that amount of water that is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made and, without limiting the generality of the foregoing, includes . . . (c) For the benefit and enjoyment of present and future generations, the appropriation by the state of Colorado in the manner prescribed by law of such minimum flows between two specific points or levels for and on natural streams and lakes as required to preserve the natural environment to a reasonable degree.

To limit this expansion of the definition of beneficial use, the Colorado General Assembly granted exclusive authority to appropriate instream flows to the Colorado Water Conservation Board (“CWCB”).[16] For the CWCB to initiate a water appropriation, it must make a determination that preservation of the natural environment will occur to a reasonable degree by the current amount of water available for appropriation.[17] If a reasonable degree of natural environment preservation can occur by CWCB’s instream flow appropriation, the right is created but it must not cause material injury to senior surface water or tributary groundwater rights.[18]

The water rights the CWCB appropriates are junior rights, but they do not require a diversion.[19] In 1979 the Supreme Court in Colorado River Water Conservation District v. Colorado Water Conservation Board confirmed that the CWCB did not need a diversion to appropriate water.[20] The Court outlined that the state constitution only uses the word “divert” once and that it does not mandate that diversion be an essential element of appropriation in Colorado.[21]

This confirmation of the CWCB’s ability to appropriate water without a diversion allowed the CWCB to work to preserve lakes and streams; in its duty to appropriate to protect the natural environment, the CWCB has preserved cold and warm water fisheries, waterfowl habitat, glacial ponds, unique hydrologic and geologic features like Hanging Lake, and critical habitat for threatened or endangered native fish.[22] These types of environmental protections are also at the core of the PTD’s ability to protect the natural environment for the public interest.[23] Colorado’s instream flow program therefore provides for these environmental protections in the absence of a public trust doctrine.

The CWCB has instream flow rights “on more than 1,500 stream segments covering more than 8,500 miles of stream and 477 natural lakes.”[24] In 2002 the Colorado General Assembly authorized the CWCB to acquire existing senior water rights by lease, purchase, or donation in order to enable CWCB to further protect the natural environment.[25] Instead of only appropriating junior rights for minimum stream flows, now the CWCB can obtain decreed, senior rights and put those rights to instream flow use to preserve and improve the natural environment.[26] This expansion of the instream flow program creates more potential for environmental protection in the state: since the 2002 change, the CWCB has completed more than twenty voluntary water acquisition transactions.[27] These legislative enactments exemplify an alternative approach to the PTD and allow for a state without a PTD to protect aquatic life and habitat, and to maintain minimum flows throughout the state, by other means.

RECREATIONAL IN-CHANNEL DIVERSIONS

In 1998 the City of Golden saw an opportunity to develop a recreational niche and filed an application for a decree for one thousand cubic feet per second (“cfs”) of water for the months of May, June, and July for its whitewater sports park.[28] This very large application spurred the water court to address the definition of diversion and beneficial use. The water court stated that structures that control, concentrate, and direct the flow of water constitute a diversion.[29] The water court also confirmed that using water for recreational boating is a beneficial use.[30] On appeal, the Colorado Supreme Court affirmed the decree.[31] This decision confirmed that recreational in-channel diversions (“RICDs”) could be very large and opened up the possibility that RICDs could have negative impacts on upstream transfers, storage, and trans-mountain diversion plans.[32] Following the court’s decision, in 2001 the Colorado General Assembly enacted Senate Bill 216 (“SB 216”) to address similarly large RICD applications.[33]

SB 216 implemented restrictions on RICDs similar to those imposed upon instream flow rights. The bill changed the definition of beneficial use and diversion to specify that only “a county, municipality, city and county, water district, water and sanitation district, water conservation district or water conservancy district” could divert water for the beneficial use of recreational in-channel purposes.[34] The ability to control water for RICDs, therefore, is only for those specified entities.[35] This new bill also defined RICD as “the minimum stream flow as it is diverted, captured, controlled, and placed to beneficial use between specific points defined by physical control structures pursuant to an application filed by a [local government entity] for a reasonable recreation experience in and on the water.”[36] The law mimics the instream flow regulations, requiring a municipality seeking a RICD to first submit an application to the CWCB for review and recommendation, and to then bring the application to the water court for final review.[37] Public policy concerns and the technical expertise needed to analyze RICDs resulted in the selection of the CWCB as the recommending body for RICDs.[38]

The role of the CWCB in the RICD application process caused quite a controversy and led to a Colorado Supreme Court confirming the CWCB’s authority to recommend RICD applications.[39] In 2002 the Upper Gunnison River Water Conservancy District filed a RICD application with the CWCB.[40] The CWCB significantly reduced the amount of water in the application to an amount it considered reasonable and then made a favorable recommendation to the water court.[41] When the application moved to the water court for review, the CWCB had made no factual findings, as statutorily required.[42] The water court made its own findings, based on the statutory factors outlined in SB 216, and granted the decree for the full application amount.[43] The CWCB appealed the decree to the Supreme Court, which held that the CWCB is a “narrowly constrained fact-finding and advising body” when reviewing RICD applications and must act as such.[44] The court agreed with the CWCB’s concern about water waste and held that decreed RICD water rights are only for the minimum amount needed for a reasonable recreational experience.[45]

While the role of the CWCB in approving RICDs and determining the minimum flow needed for recreation has proved tenuous at times, RICDs have provided for the protection of flows that benefit recreational interests, but also the natural environment.[46] RICDs are appropriated for recreational beneficial use, but by leaving the water in the streams for recreational use they provide for minimum instream flows that benefit the natural environment. More than ten cities, counties, and water districts hold decreed RICDs in Colorado.[47] These municipalities may find RICD tourism and economic benefits as the greatest assets, but RICDs also allow for environmental conservation.[48] Demonstrating that recreational interests span from boating to fishing, Trout Unlimited has indicated the potential for RICDs to benefit fish and recreational fishing by protecting flows sufficient to support habitat.[49]

Colorado courts have consistently held that there is no public trust doctrine, but RICDs do consider the public interest to some extent.[50] Similar to legislatively‑enacted minimum instream flow rights, RICDs are a legislative means to address the public interest without impinging on Colorado’s system of prior appropriation.[51] RICDs, while legislatively constrained, address the public interest in providing minimum flows for recreation. This collaterally provides for the preservation of the natural environment.[52] The intention of Colorado legislators may not have been to provide for the aquatic environment directly, but RICDs certainly have that additional benefit.[53]

CONCLUSION

Colorado courts have consistently held that the public trust doctrine does not apply to appropriative water rights in this state.[54] This steadfastness to a “pure” system of prior appropriation has led instead to highly specific legislative enactments that modify the prior appropriation doctrine to accommodate additional interests. These enactments address developing concerns about the preservation of fisheries, wildlife, and aquatic habitat, as well as the promotion of recreational water use in the state. As public interest needs and values have developed in Colorado, adaptations to the prior appropriation system have effectively addressed these additional public interest concerns.[55] Unlike California, where the courts are responsible for implementing the public trust doctrine, the Colorado judiciary only applies prior appropriation as directed by the state constitution and the Colorado General Assembly.[56] In the ongoing legislative attempt to accommodate environmental and recreational interests under the Colorado Doctrine, collaborative discussions and engagement with multiple parties to creatively address water concerns have flourished.[57] As Justice Hobbs stated, “there are no aspects of the public interest that cannot be protected” within Colorado’s prior appropriation framework. Given the adaptive qualities of Colorado’s prior appropriation system, this will continue to be true.[58]


Sources:

[1] Dave Owen, The Mono Lake Case, The Public Trust Doctrine, and the Administrative State, 45 U.C. Davis L. Rev. 1099, 1107 (2012).

[2] Illinois Cent. R. Co. v. Illinois, 146 U.S. 387, 435 (1892); see also Danielle Spiegel, Can the Public Trust Doctrine Save Western Groundwater?, 18 N.Y.U. Envtl. L.J. 412, 428–29 (2010).

[3] See Safranek v. Town of Limon, 228 P.2d 975 (Colo. 1951).

[4] Colo. Const. art. XVI § 5; see also Stephen H. Leonhardt & Jessica J. Spuhler, The Public Trust Doctrine: What It Is, Where It Came From, And Why Colorado Does Not (And Should Not) Have One, 16 U. Denv. Water L. Rev. 47, 48–49 (2012).

[5] Colo. Const. art. XVI, § 6.

[6] Leonhardt & Spuhler, supra note 4, at 60.

[7] Gregory J. Hobbs, Jr. & Bennett W. Raley, Water Rights Protection in Water Quality Law, 60 U. Colo. L. Rev. 841, 879, 881–82 (1989). Justice Hobbs currently sits on the Colorado Supreme Court and is an outspoken critic of movements to adopt the public trust doctrine in Colorado.

[8] Id.; see also Joshua Mack, The Evolution of Colorado’s Recreational In-Channel Diversions, 10 U. Denv. Water L. Rev. 73, 76 (2006).

[9] Owen, supra note 1, at 1109–10 (discussing Marks v. Whitney, 491 P.2d 374, 380 (Cal. 1971)); see also Order After Hearing on Cross Motions for Judgment on the Pleadings at 9, Envtl. Law Found. v. State Water Resources Control Bd., No. 34-2010-80000583 (Cal. Super. Ct. Jul. 15, 2014).

[10] Colo. Rev. Stat. § 37-92-103(4) (2013).

[11] Mack, supra note 8, at 76, 79, 94.

[12] Id. at 76.

[13] Cynthia F. Covell, A Survey of State Instream Flow Programs in the Western United States, 1 U. Denv. Water L. Rev. 177, 184 (1998).

[14] Mack, supra note 8, at 75–76.

[15] Colo. Rev. Stat. § 37-92-103(4) (2014).

[16] Thomas Hicks, An Interpretation of the Internal Revenue Code and Treasury Regulations Supporting the Tax Deductibility of the Voluntary Charitable Contribution in Perpetuity of A Partial Interest in an Appropriative or Riparian Water, 17 Hastings W.-NW. J. Envtl. L. & Pol’y 93, 148–49 (2011) (discussing Colo. Rev. Stat. § 37-92-102(3)–(4)).

[17] Colo. Rev. Stat. § 37-92-102(3); see Covell, supra note 13, at 185.

[18] Id.

[19] Colo. Rev. Stat. § 37-92-103(4); Colo. River Water Conservation Dist. v. Colo. Water Conservation Bd., 594 P.2d 570, 573 (Colo. 1979); see Hicks, supra note 16, at 148–49.

[20] Colo. River Water Conservation Dist., 594 P.2d at 574.

[21] Id. at 573.

[22] Instream Flow Program, Colorado Water Conservation Board (“CWCB”), http://cwcb.state.co.us/ENVIRONMENT/INSTREAM-FLOW-PROGRAM/Pages/main.aspx (last visited March 7, 2015) [hereinafter Colorado Water Conservation Board].

[23] Owen, supra note 1, at 1109.

[24] Colorado Water Conservation Board, supra note 22.

[25] Colo. Rev. Stat. § 37-92-102(3) (2014); see Hicks, supra note 16, at 148.

[26] Id.

[27] Colorado Water Conservation Board, supra note 22.

[28] In re Application for Water Rights of Golden, No. 98CW448, 1 (Colo. Water Ct. Div. No. 1 2001), available at http://cdss.state.co.us/onlineTools/Pages/WaterRights.aspx (last visited Mar. 24, 2015).

[29] Id. at 4-5; see also Mack, supra note 8, at 77.

[30] In re Application for Water Rights of Golden. at 5; see also Mack, supra note 8, at 77.

[31] State Eng’r v. City of Golden, 69 P.3d 1027, 1028 (Colo. 2003).

[32] Mack, supra note 8, at 78–79.

[33] S.B. 01-216, 63rd Gen. Assemb., 1st Reg. Sess. (Colo. 2001); see also Mack, supra note 8, at 79.

[34] S.B. 01-216, 63rd Gen. Assemb., 1st Reg. Sess. (Colo. 2001) (current version at Colo. Rev. Stat. § 37-92-103(4)(b) (2014); see also Rebecca Abeln, Instream Flows, Recreation as Beneficial Use, and the Public Interest in Colorado Water Law, 8 U. Denv. Water L. Rev. 517, 523–24 (2005).

[35] Id.

[36] Colo. Rev. Stat. § 37-92-103(10.3).

[37] Abeln, supra note 34, at 527.

[38] Mack, supra note 8, at 81.

[39] Colo. Water Conservation Bd. v. Upper Gunnison River Water Conservancy Dist., 109 P.3d 585, 593 (Colo. 2005); see Mack, supra note 8, at 84–85.

[40] Upper Gunnison River Water Conservancy Dist., 109 P.3d at 589.

[41] Mack, supra note 8, at 84.

[42] Upper Gunnison River Water Conservancy Dist., 109 P.3d at 590.

[43] Id.

[44] Id. at 593; see Mack, supra note 8, at 85.

[45] Upper Gunnison River Water Conservancy Dist., 109 P.3d at 593.

[46] Reed D. Benson, “Adequate Progress,” or Rivers Left Behind? Developments in Colorado and Wyoming Instream Flow Laws Since 2000, 36 Envtl. L. 1283, 1301 (2006).

[47] Pending and Decreed RICDs, Colorado Water Conservation Board, http://cwcb.state.co.us/environment/recreational-in-channel-diversions/Pages/PendingandDecreedRICDs.aspx (last visited March 7, 2015).

[48] Abeln, supra note 34, at 533.

[49] Id. at 543.

[50] Id. at 533.

[51] Leonhardt & Spuhler, supra note 4, at 65–66.

[52] Abeln, supra note 34, at 537.

[53] Id. at 533.

[54] Leonhardt & Spuhler, supra note 4, at 49–50.

[55] Id. at 94.

[56] Abeln, supra note 34, at 541.

[57] Leonhardt & Spuhler, supra note 4, 95.

[58] Hobbs & Raley, supra note 7, at 874.