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.
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
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).