Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., 849 F.3d 1262 (9th Cir. 2017) (holding: (i) the United States impliedly reserved a water right when establishing the Agua Caliente Reservation; (ii) the Tribe’s implied federal reserved water right extended to groundwater; and (iii) the Tribe’s state water entitlements to groundwater did not disqualify its implied federal reserved water right).

The Agua Caliente Band of Cahuilla Indians (“Tribe”) inhabited the Coachella Valley prior to California’s Admission to the Union in 1850. Two Presidential Executive Orders issued in 1876 and 1877 established the majority of the Agua Caliente Reservation. Today, the United States holds a series of lands that that are “interspersed in a checkerboard pattern” in trust for the Tribe.

The Coachella Valley contains an arid southwestern dessert. Rainfall averages three to six inches per year and the Whitewater River System, the only source of surface water, produces a fluctuating annual supply between 4,000 and 9,000 acre-feet that primarily occurs in winter months. Currently, the Tribe receives surface water from the Whitewater River System consistent with the Whitewater River Decree, a 1983 California Superior Court adjudication that addressed state-law water rights for river system users. The adjudication resulted in a state court order that allotted water for the Tribe’s benefit, primarily because the United States, as holder of partial Agua Caliente Reservation lands in trust, participated in the adjudication on the Tribe’s behalf. However, the adjudication reserves only a minimal amount of water for the Tribe, providing enough to irrigate nearly 360 acres of the reservation’s approximately 31,369 acres. Additionally, the river system peaks in the winter months, which leaves the allotment filled outside of growing season.

This inconsistent and “virtually nonexistent” surface water supply causes the Tribe to predominantly rely on groundwater for all consumptive use on the reservation during the year. Therefore, almost all regional water is sourced from the Coachella Valley Groundwater River Basin, the aquifer underlying the valley. The Tribe, however, does not pump groundwater on its reservation, but purchases groundwater from the Coachella Valley Water District and the Desert Water Agency (“water agencies”).

Over concern for diminishing groundwater resources, the Tribe filed an action for declaratory and injunctive relief against the water agencies in the United States District Court for the Central District of California. The Tribe requested a declaration that it had a “federally reserved right and an aboriginal right to the groundwater underlying the reservation.” The district court later granted the United States’ motion to intervene as a plaintiff to support the Tribe’s allegation that it had a reserved right to groundwater.

The parties divided the litigation into three phases. With respect to Phase I, the only phase relevant for this case, the district court held that “the reserved rights doctrine applied to groundwater and that the United States reserved appurtenant groundwater when it established the Tribe’s reservation.” Subsequently, the district court certified its order for interlocutory appeal and the water agencies petitioned the Ninth Circuit Court of Appeals for permission to hear the appeal. The court, on de novo review, addressed the only issue on appeal: whether the Tribe had a federal reserved right to the groundwater underlying its reservation. In so doing, the court approached its analysis in three steps.

First, the court determined whether the United States impliedly reserved water when establishing the Agua Caliente Reservation. This question is two-pronged: (1) whether water is reserved if a reservation’s primary purpose anticipates water use; and (2) if so, whether the Agua Caliente Reservation’s primary purpose contemplated water use.

The court began its analysis by examining the Winters doctrine, and found that it established that “federal reserved water rights are directly applicable ‘to Indian reservations and other federal enclaves, encompassing water rights in navigable and nonnavigable streams.’” However, the Winters doctrine is limited to certain situations; it reserves water necessary to accomplish the purported means of the reservation and reserves water if it is appurtenant to the withdrawn land. Following that understanding, the court differentiated the parties’ and the district court’s application of the Winters doctrine that specifically addressed whether the Tribe’s reserved right extended to groundwater from the more overarching issue concerning whether the mere existence of a federal reserved right depended on the Agua Caliente Reservation maintaining an implicit right to use water.

The court then evaluated the first prong when addressing the Tribe’s implied reserved right to water. The court invoked United States v. New Mexico and reasoned, “the federal purpose for which land was reserved is the driving force behind the reserved rights doctrine.” Further, that the New Mexico Court patterned a consistent conclusion whenever the reserved water rights doctrine is raised—an insufficient water supply defeats the purposes of the reservation. Therefore, the court adopted New Mexico’s holding that water is reserved when the reservation’s primary purpose foresees water use. The court then evaluated the second prong, whether the Tribe’s primary purpose contemplated water use. To answer this question, the court synthesized the Executive Orders establishing the Agua Caliente Reservation and Supreme Court precedent to conclude that “the primary purpose underlying the establishment of the reservation was to create a home for the Tribe, and water was necessarily implicated in that purpose.” Therefore, the United States impliedly reserved water for the Tribe.

Second, the court addressed whether the Tribe’s implied reserved water right extended to the Agua Caliente Reservation’s underlying groundwater. The court reiterated the Winters doctrine requirements and determined that although the Tribe met the first requirement that the reservation’s purported means necessitated water use, the second requirement that unappropriated water must be appurtenant to the reservation remained. To find a resolution, the court reasoned that appurtenance is not limited to surface water and extrapolated from Supreme Court precedent that the United States can protect groundwater and, along that vein, impliedly reserved water may include appurtenant groundwater. Further, the court considered the Tribe’s reliance on groundwater when reasoning that the minimal surface water availability conditions the Tribe’s survival on groundwater access. From this line of reasoning, the court clarified that the Winters doctrine purported to provide sustainable livelihoods to Tribes inhabiting reservations in arid areas, like the Agua Caliente Reservation, and included access to both appurtenant surface water and groundwater. Therefore, the Tribe’s implied reserved water right included groundwater.

Third, the court addressed whether the above two holdings withstood the water agencies’ arguments that: (1) the Tribe received water pursuant to California’s correlative rights doctrine; (2) the Tribe did not need a federal reserved right to groundwater in light of its allotted surface water from the Whitewater River Decree; and (3) the Tribe never drilled for groundwater on its reservation. The court rejected each in turn. First, federal water rights, such as the implied federal reserved water right, preempt state water rights. Second, New Mexico did not inquire into the current necessity of water, it focused on whether the reservation’s inception purported such a necessity. Third, lacking historical access to groundwater on the reservation did not foreclose the Tribe’s current access to groundwater. Therefore, compounded with the federal primacy of reserved water rights, the Tribe’s implied federal water right to groundwater remained intact.

Accordingly, the court affirmed the district court holding that the United States impliedly reserved appurtenant groundwater when creating the Agua Caliente Reservation.

                                                                                                        Gia Austin

Image: Santa Rosa and San Jacinto Mountains National Monument, California. Flickr User Bureau of Land Management, Creative Commons.


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.

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).