Silver v. Pueblo Del Sol Water Co., 384 P.3d 814 (Ariz. Ct. App. 2016) (holding: (i) that the Arizona Department of Water Resources’ (“ADWR”) interpretation of “legal availability” was valid under the statute defining “adequate water supply”; (ii) that ADWR must consider an unquantified federal reserved water right for the purposes of an Adequate Water Supply Designation (“AWSD”); and (iii) that ADWR was not required to separately consider the impact of pumping on a conservation area and the local surface or groundwater).

In 1988, the United States Congress designated roughly thirty-six miles of the San Pedro River basin (“Basin”) as a national conservation area (“Conservation Area”), and simultaneously created a federal reserved water right for the Conservation Area “in a quantity sufficient to fulfill the purpose” of protecting the public lands surrounding the River. The Bureau of Land Management (“BLM”) manages the Conservation Area. Since 1989, the BLM has filed three statements of claim for the Conservation Area covering surface and groundwater.

The General Stream Adjudication for the Gila River System (“Gila Adjudication”), active for approximately 40 years, has exclusive jurisdiction to adjudicate the conflicting claims and water rights for the Basin. BLM federal reserved rights are part of the the Gila Adjudication. The Gila Adjudication will determine whether BLM “has a reserved right to the groundwater ‘where other waters are inadequate to accomplish’” the reservation’s purpose and the minimum amount necessary to achieve that purpose.

Pueblo Del Sol Water Company (Pueblo) is a private water company. Pueblo serves an area five miles from the San Pedro River. In June 2011, Pueblo applied for an AWSD, which would allow it to pump groundwater to a planned community subdivision and other projects. Pueblo’s application included its Certificate of Convenience and Necessity (“CC&N”), a certification provided by the Arizona Corporation Commission to public utilities. Pueblo sent its application to ADWR, the agency that reviews AWSD applications. Ariz. Rev. Stat. § 45—108 requires subdivision developments outside active water management areas to show the existence of an adequate water supply as designated by ADWR. Under ADWR’s regulations, an adequate supply requires continuously legally and physically available water to satisfy the proposed needs for at least one hundred years. BLM objected to the Pueblo’s application, citing failure to properly analyze availability of water under ADWR’s regulations.

ADWR rejected the objection and accepted Pueblo’s application. BLM appealed to the Superior Court of Arizona, which reversed ADWR’s decision. The lower court held that ADWR abused its discretion because ADWR failed to meet its statutory duty to ensure that the water source will be available for at least 100 years. The lower court found that ADWR’s definition of “legal availability” erroneously allowed a decision to be based solely on whether the applicant had a CC&N. ADWR and Pueblo appealed the judgment.

On appeal, the Court of Appeals of Arizona decided three issues: (1) whether ADWR’s interpretation of “legal availability” under the statute defining adequate water supply was valid; (2) whether ADWR should have considered BLM’s unquantified reserved water right in its AWSD determination; (3) and whether ADWR was required to consider the impact of pumping on the Conservation Area and local surface and groundwater.

First, BLM argued that ADWR failed to make a valid determination of legal availability when it accepted Pueblo’s application without initially considering the federal government’s senior, unquantified federal reserved right. The court disagreed with BLM, finding that ADWR’s interpretation of legally available was valid when the statutes and regulations were read together.

Legal availability is a two step determination under ADWR’s interpretation of A.R.S. § 45–108(I)(1). First, ADWR must find that the water company is using the water for a reasonable and beneficial use. Second, ADWR must find that the water company has a legal means of delivering the water. ADWR has determined under R12–15–718(C) that the second step means a private water company has a CC&N.

The court agreed with ADWR that Pueblo’s planned use of the water was reasonable and beneficial because they planned to supply a subdivision with the water, thus satisfying the first step. The court also agreed with ADWR that Pueblo demonstrated a legal means of delivering the water because it had a CC&N, thus satisfying the second step. The court explained that ADWR’s determination that the second step requires the company to have a CC&N should be given great weight because the Director is an expert in the field vested with broad powers to achieve groundwater conservation. The court explained further that the department’s requirement that a water company have a CC&N kept with the consumer protection purposes of the statute because it requires the utility to be sufficiently financially viable to deliver, store, and treat such water.

The court also noted that in addition to determining mere legal availability, the Director of the ADWR has a more involved duty to determine whether adequate water is available. To make this determination, the Director is obligated to consider physical availability, which required the director to consider the water already commited to approximately 200 users. The ALJ determined that the Director considered Pueblo’s proposed water source and the demands from other users, and that Pueblo demonstrated that sufficient water would be available for 100 years.

Second, BLM argued that ADWR should consider its unquantified federal reserved water right, which has priority over Pueblo’s. ADWR countered by arguing that determination of those water rights fell under the exclusive jurisdiction of the Gila Adjudication and could not be adjudicated by ADWR in this proceeding. The court agreed with BLM, finding that ADWR not only had jurisdiction to consider the BLM’s claimed right, but had a duty to do so.

The court interpreted the language of R12–15–716(B), which requires the Director to consider the existing uses of groundwater, to include the consideration of the BLM’s federal reserved right. The court found that requiring ADWR to consider BLM’s right was in keeping with the intent of the groundwater statutes to protect Arizona’s economy and welfare, and to provide a comprehensive framework for the management and regulation of grounrwate, without compromising the preservation of the conservation area.

The court stated ADWR could use its expertise and knowledge to create an educated estimate of BLM’s quantified water right. However, the court distinguished ADWR’s duty to consider BLM’s claim from quantifying it. The court explained that quantification was the exclusive domain of the Gila Adjudication.

Finally, BLM argued that Pueblo’s proposed pumping might interfere with the Conservation Area and local surface or groundwater. The court found that ADWR was not required to separately consider the impact of pumping on the Conservation Area and local surface or groundwater. The court did not want to impose an obligation beyond ADWR’s obligation to consider adequate water.

Accordingly, the court vacated the judgment of the superior court, and remanded the action to ADWR with instructions to consider the BLM’s water rights claim in its evaluation of Pueblo’s application.

Trevor C. Lambirth

Image: Snow above the San Pedro River valley. Flickr user Lon&Queta, 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.

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.

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).


Background

The Colorado River Basin (“the Basin”) spans parts of seven western states: Arizona, California, Colorado, Nevada, New Mexico, Utah, and Wyoming.  The Basin currently provides water to around 40 million people and 4 million acres of irrigated agricultural land, making it one of most important watersheds in the western United States.  Beginning in January of 2010 and lasting for three years, the Department of the Interior funded a supply and demand study of water use in the Basin through the Bureau of Reclamation and its WaterSMART program.  Completed in December 2012, the published full report of the Colorado River Basin Water Supply and Demand Study (“Study”) can be found in the links provided below.

 

The Study

The Study evaluated future imbalances in the watershed over the next 50 years, up to year 2060.  The Study, however, did not result in any decision on how exactly the future imbalances will be addressed.  Performed in four phases, the Study (1) assessed the water supply of the watershed; (2) assessed the demands for water within the basin; (3) analyzed the reliability of the computer models; and (4) developed and evaluated strategies to decrease the imbalance. The Study found the average imbalance between supply and demand for water would be more than 3.2 million acre-feet.  Most of this imbalance is due to an increase in demand from municipal and industrial users because of an estimated doubling of the population within the Basin.  The study estimated that by 2060 the population could be approximately 76.5 million people.

 

It is important to note that any future water supply and demand scenarios predicted within the watershed are highly uncertain because an infinite number of possibilities exist.  While no study will be exact, the Bureau of Reclamation analyzed four different scenarios for both supply and demand.  On the supply side, four scenarios exist: (1) an Observed Resample scenario that looked at water tends over the past 100 years; (2) a Paleo Resampled scenario that looked at water trends over the past 1,250 years; (3) a Paleo Conditioned scenario that looked at water trends over the past 1,250 years but conditioned on the water values observed over the past 100 years; and (4) a Downscaled GCM Projected scenario estimating that the climate will continue to warm substantially over the next few decades.  This last scenario estimated that the natural water flow within the basin will decrease by approximately 9% over the next 50 years.  On the demand side, four scenarios also exist: (1) a Current Projected Growth model; (2) a Slow Growth model; (3) a Rapid Growth model; and (4) an Enhanced Environment Growth model accounting for enhanced environmental stewardship.  All the scenarios were then run in different combinations through the Colorado River Simulation System in RiverWare software, obtaining a range of potential future system conditions.

 

The Study next evaluated more than 150 options and strategies on how to resolve imbalances in the watershed.  The options and strategies can be generally organized into four groups.  The first group included options that increase water supply such as reuse, desalination, and importation.  The second group included options that reduce water demand from both M&L and agricultural conservation.  The third group included options that modify operations such as transfers & exchanges and water banking.  Finally the last group included options that focus on governance and implementation of water such as stakeholder committees, population control, and reallocation.

 

Finally, the Study listed ten general areas of options and strategies seeking to resolve water imbalances that are realistic to implement within the watershed: water conservation and reuse; water banks; watershed management; augmentation; water transfers; tribal water; environmental flows; data and tool development; climate science research; and partnerships.  The Bureau of Reclamation closed public comments on the Colorado River Basin Water Supply and Demand Study on April 19, 2013, and all comments will be summarized and considered in planning activities.

 

Brief Comments on the Study

The best solution laid out in the Study is water conservation.  Because irrigated agriculture is responsible for approximately 70% of watershed water use, conservation is this sphere could result in significant savings.  Effective conservation can also occur in cities by reducing water use in outdoor landscapes because half of all city water use is involved in such endeavors.  With desalination technology rapidly evolving, it could become another very attractive option.  Desalination projects do occur in other countries, but the energy cost and cost of recovery are still very high.


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