University Of Denver Water Law Review Annual Symposium 2017: At The Confluence: The Past, Present, and Future of Water Law

        Denver, Colorado                         April 7, 2017

Separation of Powers: A Comparison of Administrative, Legislative, and Judicial Water Regimes

(Full video of the panel below)

This panel brought in three experts to discuss the benefits and drawbacks of water law regimes that are administrative, legislative or judicial in nature. Sturm College of Law Professor Tom Romero moderated the panel.

David Barfield, the Kansas Chief Engineer, spoke first and discussed the administrative regime. He explained the background of Kansas water law and the historical development of its administrative regime. The population of Kansas mostly resides in the wetter southeast, while most irrigation occurs in the west. This, combined with occasionally unavailable surface water, has led western irrigators to rely upon the groundwater of the Ogallala-High Plains aquifers. These aquifers do not interact with the surface stream and receive essentially no recharge.

To deal with these issues, Kansas has used several different water regimes. Before 1945, Barfield explained that Kansas used a judicial regime with few water laws. The state instead relied on the common law of riparian rights. The courts also interjected some elements of prior appropriation, creating a confusing mix of doctrines. In 1944, the Kansas Supreme Court decided this system no longer worked. The legislature responded, passing the 1945 Kansas Water Appropriation Act. Barfield said this legislative regime lasted from 1945 to about 1978. During this period, the legislature entered interstate compacts, partnered with the federal government to improve water storage, created an office dedicated to water planning, and much more. In 1978, the legislature made major amendments to its water law, shifting Kansas into an administrative regime. This put the chief engineer in charge of administering the state’s water system. The chief engineer’s duties include managing permitting, all prior vested rights, all prior appropriation rights, any changes of water rights, and any other issues that may come up. While this system effectively manages the state’s water, it has not fully addressed groundwater overdevelopment.

To deal with the overdevelopment problem, the Kansas legislature passed the Groundwater Management District Act, which created five groundwater management districts. In each district, the locals adopt management programs for groundwater use, subject to chief engineer approval. However, Barfield said, these plans have at best slowed down aquifer depletion. He said solving this problem requires solving hundreds of smaller problems. One of the problems he identified is the worry that conserving water will result in losing water rights. To address this, Barfield has eliminated “use it or lose it” within closed management districts. The irrigators’ water rights will no longer lose their water right by non-use. Barfield said since this elimination irrigator have reduced their use of the aquifers. While the issues persist, Barfield explained that Kansas’ administrative regime has been working towards solutions.

Rich Gordon, a former member of the California State Assembly spoke next to discuss the legislative regime. He discussed California’s blend of prior appropriation and riparianism. California’s prior appropriation roots date back to the 1849 Gold Rush. The miner’s used first-in-time, first-in-right to determine water rights. In 1850, California adopted riparian rights in its constitution, but by 1851 California recognized prior appropriative rights as equals with riparian rights. In 1914, California established a permit system for its appropriative rights. This led to a system with three types of rights: pre-1914 appropriative, post-1914 appropriative, and riparian. On their own, riparian rights are difficult to quantify without stream-wide adjudication. But only a few streams have received these. Groundwater poses similar issues because its only regulations have been court imposed. In addition, the majority of California’s water is in the north, while most of its need for water is in the south. With this variety of rights, difficulty of quantification, limited control of groundwater, and geographic disparity, California’s water rights system has become difficult to navigate.

With these difficulties as a baseline, Gordon explained that California’s legislature only gets involved to respond to crises or to headlines. California’s recent drought provided both. Gordon noted the significance of the legislature passing the Sustainable Groundwater Management Act (SGMA). SGMA aimed to address the subsidence issue resulting from groundwater over-pumping. Originally, the act would have fully regulated groundwater basins. However, because it resulted from compromise (as legislation tends to do), SGMA instead requires local governments to establish groundwater sustainability agencies to manage wells. Though later questioned about the actual adoption of these agencies, Gordon said he believes that people will prefer local control over a state imposed system.

Gordon also discussed the major issue resulting from California’s premise that most of the state’s water can be stored in snowpack. The state does not have the capacity to store water outside snow pack. Combine this with California’s penchant for wet or dry years (rather than average years), and the state cannot capture the benefit of the wet years to make up for the dry years because of its lack of storage. One of the solutions the legislature has put forth, has been allowing public entities to obtain water rights for captured storm water. Gordon concluded by describing the difficulty of working in the legislative role. Because legislation requires compromise, it is difficult to fully solve real problems.

Finally, Greg Hobbs, a retired Colorado Supreme Court Justice, spoke to discuss the judicial regime. He began by detailing the evolution of Colorado’s water regime. Congress carved Colorado out to cover the head waters of five great rivers—the Platte, the Arkansas, the Colorado, the Republican, and the Rio Grande. After Colorado’s gold rush in 1859, agriculture became a huge industry, because it was “rumored that the miners liked to eat.” Colorado needed the prior appropriation system because it allowed moving water from rivers to farms. An early draft of the Colorado Constitution declared water to be the property of the state, left to the legislature to distribute, but the influence of farmers led to a different final wording. Instead the constitution embraces prior appropriation by declaring the water of the natural stream to be the property of the public, subject to appropriation. The early Colorado Supreme Court case, Coffin v. Left Hand Ditch, firmly rejected the existence of any riparian water rights.

The Colorado legislature later gave the district courts the responsibility to decree water rights. According to Hobbs, the legislature did not trust itself or an administrative apparatus to hand out water rights. He said the legislature did not want to require the people ask the government to use water. By putting the decision into the courts, the legislature instead trusted the people with their own water. In 1881, the legislature created the State Engineer to enforce those decrees and administer the system of water rights.

Unfortunately, these judges did not have a full view of the streams. The 1969 Act addressed this by creating seven water divisions, each based upon a major river basin.
Each with a water judge, an alternate water judge, and a water referee. The referee works with the parties to investigate the water rights and attempt to obtain a consent decree. The act also explicitly recognized tributary groundwater within the priority system, because new wells had previously forced 1860s water rights to be curtailed.

When questioned about the cost of the court system limiting access, Hobbs noted that it still provides the best protections. In 1969, the Colorado legislature considered several options, including administrative and political regimes. These were all rejected in favor of the water court system and the water referee. This system provides extensive protection for everyone’s water rights and, Hobbs asserted, without these protections Colorado would not have such an extensive water market.

Hobbs explained that by splitting the water regime into a system of checks and balances—water rights decreed by the court, administered by the executive branch, and problems solved by the legislature—Colorado avoids the pressures that could be applied on any one branch to not enforce the doctrines of prior appropriation in some circumstances. Hobbs expressed worry about the pressure faced by administrative agencies that both hand out water permits and enforce those permits.

With each panelist having discussed their regimes, Romero moved the panel into question and answer. He asked the panelists how their regimes could benefit from a change or borrow from the other regimes to improve or address the challenges posed by social, political, and environmental issues. Gordon said that, while Californians never want to admit they can learn from others, their system is convoluted and would be better off with a more coordinated system that could better address groundwater. Barfield said that Kansas has already borrowed extensively from other states to create their system. He said, contrary to Hobbs’ worries about an administrative regime, that chief engineers can certainly do it all. He does not foresee further changes to Kansas’ system. Hobbs noted that the downstream states keep Colorado honest. Through compacts, Colorado has been forced to consider other states, and better administer its own waters. Similarly, Hobbs explained that other interests, including reserved water rights, and public lands continue to impact considerations of water rights within Colorado. The panelists then fielded questions from the audience until they ran out of time.

Each panelist discussed how the unique history of their state molded the regime it now uses. It is the unique challenges faced by each state that has created differing water systems that, mostly, work to create efficient use and administration of water.

 

Rioux Jordan


People v. Davis

People v. Davis, 3 Cal. App. 5th 708 (2016) (holding that the State of California could not convict a criminal defendant of simple larceny for capturing flowing water from a natural stream, because the state did not hold a superior possessory interest in water).

In September 2009, Kenneth Davis’s neighbor told the sheriff that Davis diverted water from a stream to irrigate medical marijuana. The neighbor showed authorities a makeshift well and a 2,500 gallon tank buried nearby on a railroad company’s property. The tank captured water that Davis used to irrigate his fields. In February 2010, the California Department of Fish and Game found that Davis’s irrigation system drew from a stream that was part of the state’s water system. Davis did not receive approval from the landowner or the state to create the diversion. As a result, prosecutors charged Davis with illegally diverting the natural course of a stream, as well as petty theft of water.

At trial, the jury found Davis guilty of both charges and a judge placed him on informal probation conditioned upon a ninety-day jail term. Davis sought review by the Appellate Division of Butte County, which affirmed the lower court’s holding but later certified the case for transfer to the Court of Appeals at the defendant’s request. On appeal, the court only considered whether a court could properly convict a criminal defendant of petty theft of water.

The court first discussed whether any party held complete ownership or a superior interest in the disputed water. To bring a larceny claim, the state must show that a party stole personal property subject to ownership. Larceny claims in California require that the victim has a possessory interest in the stolen property that is superior to the defendant’s. In California, the public holds a collective vested interest in the state’s water. This collective ownership of water is a legal fiction, called the public trust doctrine, in which the state is the public trustee of its resources for use by its people. Consequently, ownership rights are usufructuary and incorporated with the needs of others to use the available water resources. Further, because the state holds water in public trust, it is legally inalienable. The state cannot grant property rights to water. However, water can be owned if it is lawfully captured. If the captured water is then released, it again becomes part of the state’s resource trust. Therefore, in common law, water could not be the subject of larceny because it would not be anybody’s personal property.

The court found that the state had not demonstrated that it, nor any other entity, had ownership of the water that was superior to the defendant’s ownership interest. Therefore, the charge was insufficient to support larceny. The railroad company who owned the land that the tank was placed on did not possess a superior interest because it made no attempt to capture the water and thus had not claimed ownership of the water. The court also rejected the state’s argument that its regulatory powers under the public trust doctrine created a superior possessory interest. The court found that, while Davis may have violated California’s regulatory powers, the state could not bring a larceny charge against him because its regulatory responsibility did not create a possessory interest in the water. Therefore, Davis’s conviction was inappropriate because the state failed to meet the ownership or superior interest requirement of a larceny charge.

The court next addressed the state’s claim that it could establish Davis’s ownership through severance of the water from the property. The court stated that water may be held as personal property once it is severed from the land through capture and storage. However, water that is diverted for irrigation is not considered to have been severed and does not qualify as personal property. The prosecution claimed that a larceny charge could be brought according to precedent regarding the severance of oil. Severance of oil converted it to personal property and subjected it to a valid claim of larceny. However, the court found that Davis used the water from the tank for irrigation, which did not create a severance of the water and did not convert the water into personal property. Therefore, the prosecution’s alternate claim was insufficient to bring a larceny charge.

Accordingly, the court reversed Davis’s conviction for petty theft, with instructions to dismiss the count. It otherwise affirmed the judgment against Davis, and ordered an amended probation order.

Ryan Hull

 

Image: Marijuana plants grow in a field. Flickr user Digital Aesthetica, Creative Commons.

 


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon         March 2–5, 2017

Film Presentation of Paya: The Water Story of the Paiute

 

Presented by: Jenna Cavelle, Director; Harry Williams, Bishop Paiute Tribal Member & Activist; Jacklyn Velasquez, Big Pine Paiute Tribal Member & Vermont Law School; and Chris Morrow, Viterbi Graduate School of Engineering.

The landscape in Owens Valley—in arid Inyo County—contains evidence of long-standing irrigation practices predating the American West’s colonial era. These dried up channels and diversions come from the people who traditionally inhabited Owens Valley. Today, the descendants of those people belong to the Bishop Paiute, the Big Pine Paiute, and a number of other tribes. The film Paya: The Water Story of the Paiute explores a series of extensive pre-historic irrigation systems in the Owens Valley and argues that evidence of early beneficial use may help establish a substantial water right for the region’s present Indian tribes. The film frames the exploration by discussing intervening historical injustices that prevented local tribes from conducting irrigation.

To establish a substantial water right, the local tribal members recognized a need to establish evidence proving long-term use. To this end, it is easy to establish that pre-historic irrigation channels actually existed, but it is much more difficult to show the water quantity used. Nevertheless, there is much evidence verifying the extent of prehistoric irrigation channels. First, there is historic evidence proving the the existence of an irrigation system from 1856, when surveyor Alexey W. Von Schmidt marked ancient irrigation channels on maps he prepared. Second, oral traditions suggest that irrigation practices occurred. Harry Williams, a Bishop Paiute tribal member, remembered hearing about the channels when he was a child. Third, various archaeological studies suggest the existence of these channels. Finally, many of these channels are still visible today. Combining data, the film estimates that native people constructed over sixty distinct networks of ditch systems in the Owens Valley.

The more difficult task for Williams and others is to prove the quantity of water that flowed through these irrigation systems. So far, the local community has only been able to gain a rough estimate of the water quantity that could flow through one of the streams. Scaling this estimate up area-wide, local tribes could have access to tens of thousands of acre-feet each year if they successfully applied for a water right. Unfortunately, estimating hydrologic flows could be cost prohibitive.

The indigenous people of Owens Valley irrigated the land until the Owens Valley Indian War, which ended in 1863 and resulted in the removal of the native populations. Even after being allowed to return home, Indians could not purchase land. As a result, the Bishop Paiute and other tribes experienced a “forced, sudden amnesia,” and lost their irrigation practices.

The rapid population growth of Los Angeles exacerbated this sudden amnesia. In 1905, the City of Los Angeles approved the Los Angeles Aqueduct and began purchasing water rights and land in Owens Valley. Since then, the City of Los Angeles has pumped hundreds of thousands of acre-feet per year from Owens Valley. Williams says that the way his elders described the land in Owens Valley is very different from the way it appears now. He links this change to the Los Angeles Aqueduct.

If tribes can establish beneficial use predating the aqueduct, they could prevent the Los Angeles from diverting massive amounts from the Owens Valley. However, Los Angeles has long been militant in its Owens Valley litigation and owns vast quantities of the area’s land. For local Indian tribes to establish a water right, they must identify and prove the existence of evidence that can accurately describe the prehistoric beneficial use of people in the area.

After the film concluded, the film’s director, Jenna Cavelle, along with Williams and two other contributors, hosted a question-and-answer session. Cavelle stated that the film has created a movement within the local community that sees this effort as chance to establish a substantial water right. Unlike many tribes, the Big Pine Paiute and others in the Owens Valley never received a federal “Winters” right to water, so the prospect of establishing a first-in-time, first-in-right beneficial use for the tribe is a first step that has invigorated many locals.

The largest issue facing the tribal communities is the funding needed to accumulate enough evidence. Developing and presenting this portfolio would require archaeologists, biologists, attorneys, hydrologists, engineers, and geologists. The cost alone of estimating water quantity flows would be astronomical. Cavelle hopes that screenings of this film will help raise awareness and encourage viewers to contribute to the tribes’ efforts.

Matthew Kilby

 

Image: A small rainstorm over the Owen’s Valley. Flickr User, JesseLeeRoper, Creative Commons.


Public Interest Environmental Law Conference 2017: One Cause, One Voice

Eugene, Oregon        March 2–5, 2017

California Groundwater Management

 

Presented by: Alison Divine, Community Legal Information Center, California State University, Chico.

Alison Divine discussed how the California Sustainable Groundwater Management Act of 2014 (“SGMA”) has impacted the state. Divine first discussed the history of groundwater management in California, then the general functions of SGMA, and finally how SGMA has developed during in its infancy.

California’s groundwater system is expansive. Seventy-five percent of Californians depend on groundwater, in some part, for their primary water supply. The state recognizes two types of groundwater: subterranean streams, which consist of groundwater flowing in a known and definite channel; and percolating groundwater, which a California court once eloquently described as “vagrant wandering drops [of water] moving by gravity in any and every direction along the line of least resistance.” City of Los Angeles v. Hunter, 156 Cal. 603, 607 (1909). From 1850 until 1903, California landowners possessed absolute ownership of the groundwater under their land. After 1903, California adopted a correlative rights system for groundwater use. Until 2014, California only regulated its groundwater through local agencies, groundwater ordinances, and basin adjudications.

SGMA is California’s first statewide groundwater management act, and it provides a long-term framework for sustainable management in California by requiring the establishment of Groundwater Sustainability Agencies (“GSAs”) in each county by June 30, 2017. GSAs may be formed in a variety of ways, including: (1) as local public agencies; (2) as a public water agency, county, or municipality; and (3) through a Joint Powers Agreement (“JPA”) or Memorandum of Agreement (“MOA”) between multiple agencies. Each GSA has wide authority to manage the sub-basin(s) on which it sits. GSAs may regulate groundwater well registration, measurements of groundwater extraction and metering, filing of annual reports, well spacing, and basin boundaries. GSAs may also establish sub-basins, limit groundwater extraction, and establish recharge, conjunctive management, or pumping reduction programs. However, to manage sub-basins and basins, GSAs must submit a Groundwater Sustainability Plan (“GSP”), which must include a description of the aquifer, historical data, a discussion of historical and projected water demand and supplies, a detailed map of the basin’s boundaries, and a map identifying existing and potential recharge areas. GSPs must also include a twenty-year sustainability goal, as well as a series of five-year interim milestones. GSA must submit GPS for basins designated as “high priority” by January 31, 2020 and medium priority basins by January 31, 2022.

Divine discussed how eleven counties in the Sacramento River Hydrologic Region had adapted to SGMA’s requirements by March 2017. For several of these counties, jurisdictional challenges have inhibited progress. In Sutter County alone, eight agencies of various sorts have submitted overlapping GSA applications to manage the county’s three sub-basins. Although the county contains high-priority areas, no GSP had been submitted as of the date of the presentation. Sacramento County, Glenn County, Yolo County, and Yuba County are all experiencing similar problems. With so many applications, it may be hard for these counties to come to a consensus on which GSAs to select. At the same time, however, two counties (Placer and Shasta) have received no GSA applications. Solano County has received one application but has yet to determine how to proceed.

Some counties in the Sacramento River Hydrologic Region have had more success. Colusa County, which contains ten sub-basins, has benefitted from seven GSA applicants coming together to form a JPA. Tehama County has approved a GSA comprising an eleven-member board of directors. The directors include three city representatives and three service-district representatives, as well as an additional representative from each of the county’s five supervisorial districts. The board for the Tehama County GSA has final authority over GSPs, future amendments, ordinances, rules regulations, and fees.

Butte County’s early transition to SGMA’s framework has also been successful. In 2015, Butte County hired a consulting farm to help it integrate the county’s groundwater management into SGMA. Although fifteen agencies have sought GSA status, the county has implemented a Groundwater Pumpers Advisory Committee, which first met in January 2017. Butte County, Tehama County, and Colusa County have all experienced various levels of success in preparing for SGMA’s early deadlines. These counties provide an example of what effective, long-term, and local management of groundwater may look like in California.

Matthew Kilby

Image: A vernal pool near Oroville, in Butte County, California. Flickr user, mary. Creative Commons.


A historic agreement between the federal government, two states, and a private power company means that four dams on the Klamath River are potentially slated for decommissioning and removal. The Klamath River flows from Oregon through California before finally emptying into the Pacific Ocean. The amended Klamath Hydroelectric Settlement Agreement (“KHSA”), signed on April 6th, 2016, may bring unexpected success to a decade-long negotiation involving big energy, tribal water rights, historic wildlife habitat preservation, and the intermingling of state and federal government regulatory agencies.

The first Klamath agreement was formally executed in 2010, and brought together the federal government, the state governments of Oregon and California, PacifiCorp, a large electric cooperative, and over forty additional signatories, including the Yurok and Karuk Tribes. Repeated congressional inaction halted the prior agreement’s implementation after Congress again failed to act before adjourning for the year on December 31, 2015.  On February 2, 2016, the Department of Interior, together with the Department of Commerce, California, Oregon, and PacifiCorp announced they agreed to amend the KHSA, which the parties eventually signed in April. The amended KHSA is the culmination of the Klamath Basin Restoration Agreement executed in 2010 and the Upper Klamath Basin Comprehensive Agreement signed in 2014.

In September, PacificCorp submitted the revised KHSA to the Federal Energy Regulatory Commission (“FERC”) for public review. On October 17, 2016, Interior Secretary Sally Jewell issued a letter to the Commission backing the dam removal.

Initially, the disputes in the Klamath Basin emerged as environmental and conservation groups (such as the Nature Conservancy, American Rivers, and Trout Unlimited) sought to restore 420 miles of historic salmon runs and riparian habitat. Moreover, these groups sought to eliminate the toxic algae blooms proliferating in the idle backwaters above the dams.

The most significant barrier to restoration of the river has been a dispute over the cost of retrofitting the aging infrastructure using modern technology and, alternatively, the cost of dismantling and removing the century-old structures and preparing the land to return to its original state.  According to several studies, the retrofit option would not only result in reduced electricity generation, but would also cost millions of dollars more than the removal.  However, the economic impacts extend beyond the estimated 450 million dollar cost of removal. A group of nearly one hundred, individual property owners have voiced opposition over the impact that dam removal would have on their lakefront property values adjacent to the reservoirs created by the dams.  Thus, a decrease in private property values could also accompany the dam removals.

Under the revised agreement, the states of California and Oregon will create a nonprofit entity, the Klamath River Renewal Corporation, which will take over Pacificorp’s current ownership of the dams.  This new owner will decommission and eventually remove the dams using existing federal authority. Both PacifiCorp ratepayers and a 2014 voter-approved water bond from the State of California has already generated funding for the decommission.

Notably, the most recent amendment lacks many government participation requirements from the original KHSA agreement.  The original agreement required Congress to pass legislation opening up significant funding, as well as the formal release of PacifiCorp from virtually any liability associated with the dam removal process. Congress’s inaction prompted the parties to exclude the Congressional participation requirement from the revised agreement.

In her recent letter of support to the FERC, Secretary Jewell called the plan a “unique opportunity to restore [a] magnificent [r]iver,” which  could help “re-write a painful chapter in our history” but still “[protect] the many interests in the Basin.” Secretary Jewell cited four key reasons for the Interior Department’s support: 1) the likely cost of removal is well below the funds that have already been obtained, 2) reservoir bottom sediment testing showed that chemical concentration levels were safe for release downstream, 3) the removal will result in the reopening of more than four hundred miles of salmon habitat, nearly doubling Chinook salmon production, and 4) the removal would improve water quality.

Although the agreement facilitates the removal of the dams, critics believe it fails to solve many of the problems it originally intended to fix, including resolving disputes over water rights, as well as effectively addressing specific allocations to farmers, wildlife refuges, and Native American tribes.  Notably, the Hoopa Valley Tribe did not sign the KHSA agreement amid concerns regarding certain provisions.  Further, the Klamath Tribes of Oregon did not sign the agreement, because its tribal members had yet to approve it through a popular vote.

While some issues may remain unresolved, the agreement represents an example of multiple entities and interests cooperating to effectuate the removal of the dams.  This agreement, if successful, may be an example and model for future change in the realm of water agreements. Curtis Knight, executive director of non-profit group California Trout expressed cautious optimism about the agreement, “[d]am removal is an essential first step, but certainly not the only step, in this process. California Trout remains committed to the comprehensive vision behind the hard-won Klamath Agreements, which identified a balanced approach to water use, environmental restoration, and community sustainability throughout the basin.”

DeWitt Patrick Mayfield

Image: PacifiCorp’s John C. Boyle Dam in Oregon, one of four dams slatted for decommission under the Agreement. Wikimedia user Bobjgalindo, Creative Commons.

Sources:

Bettina Boxall, Klamath River Dams Moving Toward Removal Despite Congressional Barriers, L.A. Times (Feb. 3, 2016), http://www.latimes.com/local/lanow/la-me-klamath-river-dams-20160203-story.html.

Thadeus Greenson, Feds Announce New Klamath Accord to Remove Dams by 2020, North Coast Journal (Feb. 2, 2016), http://www.northcoastjournal.com/NewsBlog/archives/2016/02/02/feds-announce-new-klamath-accord-to-remove-dams-by-2020.

Paige Blankenbuehler, On The Klamath, A Surprising Win For River Advocates, HIGH COUNTRY NEWS (Feb. 5, 2016), https://www.hcn.org/articles/how-conservatives-handed-environmentalists-what-they-wanted-klamath-dam-removal-without-concessions.

Peter Firmite, Remove 4 Dams on Klamath, Study Urges, S.F. Chronicle (Apr. 4, 2013), http://www.sfgate.com/science/article/Remove-4-dams-on-Klamath-study-urges-4411365.php.

Press Release, Dep’t. of Interior, Parties Agree to New Path to Advance Klamath Agreement (Feb. 2, 2016), available at https://www.doi.gov/pressreleases/parties-agree-new-path-advance-klamath-agreement.

Thadeus Greenson, UPDATED: California, Oregon Governors to Make ‘Major Announcement’ on Klamath, NORTH COAST JOURNAL (Apr. 4, 2016, 11:10 AM),  http://www.northcoastjournal.com/NewsBlog/archives/2016/04/04/california-oregon-governors-to-make-major-announcement-on-klamath.

Press Release, PacifiCorp, Parties Agree to New Path to Advance Klamath Agreement, (Feb. 2, 2016), http://www.pacificorp.com/about/newsroom/2016nrl/klamath-agreement.html.

Jonathan J. Cooper, Officials Sign Unusual Pact to Tear Down Hydroelectric Dams, ASSOCIATED PRESS (Apr. 6, 2016, 6:45 PM), http://bigstory.ap.org/article/235ba2f92ded43f3a8af971a52da17f2/officials-sign-unusual-pact-tear-down-klamath-dams.

Press Release, Dep’t. of Interior, Two New Klamath Basin Agreements Carve out Path for Dam Removal and Provide Key Benefits to Irrigators (last updated Apr. 14, 2016), available at https://www.doi.gov/pressreleases/two-new-klamath-basin-agreements-carve-out-path-dam-removal-and-provide-key-benefits.

Dan Bacher, Tribes, State and Feds Sign Klamath Dam Removal Agreement, DAILY KOS (Apr. 7, 2016, 1:36 AM), http://www.dailykos.com/stories/2016/4/7/1511799/-Tribes-State-and-Feds-Sign-Klamath-Dam-Removal-Agreement.

Will Houston, ‘Milestone’ moment: Klamath River dam removal plan submitted to feds, TIMES STANDARD NEWS (Sept. 23, 2016, 10:41 PM), http://www.times-standard.com/article/NJ/20160923/NEWS/160929892.

David Smith, Jewell supports dam removal in FERC letter, THE SISKIYOU DAILY NEWS (Oct. 16, 2016 8:59 AM)  http://www.siskiyoudaily.com/article/20161019/NEWS/161019616.

Letter from Sally Jewell, Secretary, U.S. Department of the Interior, to Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission (Oct. 17, 2016), available at https://bloximages.chicago2.vip.townnews.com/heraldandnews.com/content/tncms/assets/v3/editorial/3/2f/32f4ad9f-9d5d-5656-a7c4-3a4d5d4eacc2/5806b3b857502.pdf.pdf.


“CONFLICTS AND COOPERATION: THE PAST, PRESENT, AND FUTURE OF INTERSTATE WATER COMPACTS”

Denver, Colorado                          April 8, 2016

THE COLORADO RIVER SYSTEM:  PERSPECTIVES FROM THE LOWER BASIN

Ted Kowalski, Chief of the Interstate, Federal & Water Information Section of the Colorado Water Conservation Board, moderated a panel at the University of Denver Water Law Review Annual Symposium featuring three speakers addressing different perspectives from the Lower Basin.

The first speaker was Bill Hasencamp, Manager of Colorado River Resources, Metropolitan Water District of Southern California (“MWD”).  Hasencamp represented the municipal provider perspective on the panel.  MWD covers a one trillion dollar economy, 5,200 square mile service area, and—as one of the largest water providers in the country— approximately nineteen million residents.  Hasencamp explained how the drought in the 1990s forced Southern California to rethink the way it rationed water.  In response to the drought, Southern California devised an integrated resource plan for meeting reliability needs of the region.  The plan focused on agricultural to urban transfers and augmenting the dry year water supply with storage.  According to Hasencamp, the plan was effective, but maintaining the water supply has been a challenge for several reasons.

One challenge has been the geography of the delta between Northern and Southern California.  According to Hasencamp, the state water project receives water from the Sacramento River that comes into the delta from the North.  The pumps for both the state water and central valley project are both in the South.  Therefore, in order for the water to move between Northern and Southern California, it must move through the delta.  Unfortunately, fish swim too close to the pump and, in order to protect them, state and federal environmental regulations have forced Southern California to reduce pumping with increasing frequency.  Hasencamp explained that this year alone, during the worst drought in California’s history, California lost nearly a million acre-feet of water because fish were swimming too close to the intake.  In addition to fisheries, other long-term risks on the delta include seismic concerns with the bay area fault, as well as rising seal levels.  Hasencamp warned that if catastrophe hit, the delta could become an inland sea, and that this might prohibit the pumping of water for years.

Hasencamp then asserted that the focus needs to be on getting the delta functioning again in a way that will protect the environment and meet the water needs of the state.  Hasencamp explained that MWD believes the way to do that is through tunnels under the delta.  With tunnels, if a catastrophe occurred and the delta failed, Southern California would not lose pumping as the state could still receive water from the river upstream.  Tunnels would also ensure that Southern California could obtain water in a way that protects fish from pumps.  The plan is currently up for approval and Hasencamp is hopeful that it will pass.

Another challenge for California has been the apportionment on the Colorado River.  Hasencamp explained that a series of compacts and agreements give each state a certain allocation of the Colorado River.  After fifty years, California saw a dramatic reduction in its apportionments under the Colorado River Compact.  As a result, the state had to develop a plan to limit water intake in order to live within the reduced allocation.  In response, California developed a plan with other states to keep the Colorado River Aqueduct full until the year 2016.  Through the combination of special surplus water and agricultural to urban transfers, the aqueduct would theoretically have stayed full until 2016.  However, Hasencamp described a catch in the plan: Lake Mead had to remain at least two-thirds full.  Unfortunately, as he explained, MWD did not anticipate the worst drought in the history of the Colorado Basin.  As a result, Southern California did not receive the anticipated water from the river and instead had to shift its focus locally toward developing recycling, desalination, groundwater recovery, and conservation plans.  Hasencamp briefly discussed some of these plans including implementing agricultural conservation measures with Imperial Irrigation District (“IID”) to grow the same crops with less water; lining the American and Coachella canals; developing programs to incentivize farmers not to grow crops; entering a water sharing agreement with Nevada; and developing the Lake Mead Storage Program.  Hasencamp explained that even as the drought in California continues, extra water does exist.  Unfortunately, California cannot pump the water so they are still receiving drought allocations.  In conclusion, he suggested that fixing the delta would help to alleviate this tension.

The second speaker was Chuck Cullom, Manager of Colorado River Programs, Central Arizona Project (“CAP”).  He represented an agricultural and urban perspective.  To begin, Cullom gave a brief overview of the Colorado River System describing it as “the engine of the west.”  While not even in the top twenty largest rivers in North America, the Colorado has four times the annual run-off in storage capacity.  CAP delivers water to four million people in Arizona, provides water for cities and irrigation, and has the most diverse customer classes in the Colorado River system, serving eleven tribes, ten irrigation districts, and ten cities.

Like Hasencamp, Cullom emphasized the steady decline in Lake Mead and the implications it had for CAP.  Currently, the Lower Basin runs at a deficit of about 1.2 million acre-feet every year.  In accordance with the compact, MWD and California have invested billions to reduce their water use from 5.1 to 4.4 million acre-feet, and, still, Lake Mead is declining.  The decline undermines the effectiveness of these cooperative agreements.  Cullom explained that from CAP’s perspective, it must bear the burden of this shortage from what, it believes, is a shared obligation.  The Colorado River system is a linked system of seven states in the Lower Basin.  As the reservoir declines, the reductions grow.  When Lake Mead evaporates, apportionments do not factor in that reduction.  But through cooperative agreements, states have been able to define what shortages will look like in the Lower Basin.

During the first anticipated shortage, Cullom clarified that CAP’s underground water storage will diminish and agriculture customers could be cut by more than half.  In light of the persistent long term risk of shortage, CAP has developed several responses.  First, it has invested millions into storing water underground to protect users from shortages.  Second, like MWD and IID partners in California, CAP has begun storing water in Lake Mead to prop the reservoir up in order to avoid immediate shortage issues and reduce the risk of long-term shortage issues.  CAP has reduced annual diversion by between 140,000-180,000 acre-feet.  By the end of this year, CAP will have stored 345,000 acre-feet in Lake Mead.

Cullom concluded by emphasizing that the structural deficit creates a long-term risk to all Lower Basin Colorado River users and undermines the ability to become cooperative and collaborative partners.  CAP is attempting to follow the lead of California in developing proactive steps to reduce its use, but also is looking to collaborate and cooperate with Lower Basin partners to assist and share in those additional reductions.

The final speaker was Kevin Kelly, General Manager of IID.  He represented the irrigation perspective in a district with the largest number of agricultural to urban transfers in the nation.  According to Kelly, because California has been exceeding its 4.4 million acre-foot entitlement to the Colorado River, IID entered into transfer agreements to bring California “back in line.”  As Kelly explained though, “the only dangling question mark is the Salton Sea.”

According to Kelly, Imperial Valley is an economically-challenged community with 450,000 acres in active cultivation.  Because of the vast farmland and economic nature of the community, the recession of the Salton Sea will have devastating impact on the Imperial Valley.  When the Salton Sea issue first arose, the state of California took responsibility for handling it, focusing primarily on restoration.  However, as Kelly explained, California failed to fulfill its responsibility.  In 2014, in order to bring this issue to the forefront, IID filed a petition with its own state water board.  It informed California of its failure to meet the task of tackling the Salton Sea problem and requested the state board resolve the Salton Seat question as a condition of the transfers.

By the year 2047, 74,000 acres of lakebed will lay exposed, and the water elevation will be negative 249,090 feet.  To address the issue, IID suggests filling up the lakebed with habitat and renewable energy projects.  Kelly argued that renewable energy projects would be especially effective because the same exposed lakebed in the Salton Sea happens to correspond with this hemisphere’s largest untapped geothermal resource.  Kelly asserted that this resource could replace the lost generation at the San Onofre nuclear plant.  Yet, unlike the plant, the Salton Sea would have virtually no emissions.

Kelly noted that California has the most aggressive renewable portfolio standard in the nation as well as the most ambitious greenhouse gas reduction bills.  But in the last four years since San Onofre went down, air in California has become markedly more polluted.  According to Kelly, geothermal energy should be an integral part of the solution to filling up the exposed lakebed.  Kelly argued that IID could not enter another quantification settlement agreement when it is struggling to implement the first one.  At the end of his speech, he posed a rhetorical question: When you pit agriculture against all the other uses in California, who decides whose economic project is more important?  Kelly answered: “In a diversified economy in the southwest, agriculture needs to count for something.”

Neillie Fields


I. Introduction

Under the doctrine of prior appropriation, the acquisition of water rights is based on the principle: first in time, first in right. As a result, this system has the capacity to create winners (the senior water rights holders) and losers (the junior or no water rights holders). In times of drought, this problem is exacerbated.

In Estate of Steed v. New Escalante Irrigation Co., the Supreme Court of Utah rejected a proposal for balancing the interests of senior and junior water rights owners. Instead, the court concluded that “both parties cannot ‘win’ [because] the law simply favors the first user.” The court stated that “when there is not enough water to satisfy the needs of all users, the user who depends upon another’s seepage and runoff will suffer.”

Citing a strong policy of conservation underlying its water law as the reason for its decision, the court refused to recognize that return flows—resulting from the inefficient irrigation practice existing at the time—were legitimate means of supplying water rights to others. Although acknowledging that water users may appropriate wastewater and obtain protection against junior appropriators, the court stated that Utah water law encourages improvements in irrigation efficiency and the junior water appropriator of wastewater cannot compel the continued wasteful use of water. The adoption of improved and more efficient conservation technologies thereby brought benefits to the irrigator, including increased crop production and lower irrigation costs, but unfortunately, this development occurred at the expense of junior water-right holders. The result is increased pressure on an already over-appropriated Western water system and a greater divide between the “winners” and “losers.” While the court encouraged farmers to conserve and efficiently use water to ensure they retain all of their allocated water rights, this ruling discouraged the spread of water rights to different uses.

In the face of a changing climate and increasing urbanization in the West, water transfers could help arid regions meet growing demands for water through implementation of voluntary market-based sales and leases of water rights. Water rights may be transferred by sale, lease, or exchange. A water transfer is a voluntary agreement that results in a change in the type, time or place of use of a water right. A transfer may not exceed the quantity of rights held by the transferor, but may change the use of the water, the location, the time it is released, and the point of diversion. Water transfers are a means of making water available to those who don’t hold senior water rights. Water transfers can facilitate and enable the use of water, as necessary, for agricultural, municipal, industrial energy and environmental uses. Such transfers afford the opportunity to maximize the use of the available water supplies and promote the most efficient use of water.

Transfers of water could also be used to mitigate the impact of the holding in Estate of Steed, which ultimately promoted the inefficient use of water. Water transfers could potentially help balance the interests of senior and junior water rights owners by encouraging the water rights holder to better conserve his or her water and lease the remaining water rights for a limited time. As a result, this water will become available for junior water rights holders for the market price.

While voluntary water transfers have occurred for years, there are many barriers that water appropriators face when attempting to transfer water, including the lack of accurate and reliable information. Currently there is a high demand for water to be transferred from agriculture to uses that return higher economic benefits. This is most clearly evidenced by the circumstances of farmers in Northern California who hold senior water rights. With droughts plaguing arid climates, farmers are finding that their most valuable asset is no longer their crops, but rather their water rights. Therefore, farmers often face a choice between fallowing a field to lease out that water or continuing to farm the land without leasing any of the water rights.

This economic dilemma—which results in either an inefficient use of water resources or a loss in profits for a farmer—may soon disappear with changes in technology. Recently, farmers have found a third option that allows them to continue farming the land while implementing efficiency measures to significantly reduce water use for the same crop yield and then leasing that saved water to others in a high-demand market. A new technology, Sustainable Water and Innovative Irrigation Management (SWIIM), could provide the information necessary to help facilitate water transfers, and, thus, maximize the utility of this precious and dwindling resource. SWIIM helps farmers (1) conserve water; (2) more easily prove conservation efforts and successes to regulators more easily; and, (3) lease their excess water to municipalities, industrial users, or other farmers and individuals seeking additional water resources.

II. Non-Use, Forfeiture, and the Difficulty of Proving Conservation Encourage Waste—the Law Behind Estate of Steed

Water rights acquired by prior appropriation may be lost if the allocated water is not fully consumed each year. The general rule is that as soon as the water leaves an appropriator’s land and enters, or is destined for, a natural stream, it becomes subject to appropriation by other users. Typically, in farming only a portion of the allocated water is actually consumed for irrigation. The amount that does return to the stream—return flow—thereafter becomes available for others to divert.

Appropriators may also lose their water rights if they do not use their water for a significant period of time. Non-use for a significant period of time, coupled with intent to relinquish water rights, is sufficient to constitute abandonment of a water right. However, because water is such a scarce commodity, it is rare that a right holder will have the requisite intent to abandon a right. More likely, the water right holder may lose its water right despite the absence of any intent to do so under a forfeiture statute for non-use. Under the forfeiture statute for non-use, those appropriators who fail to beneficially use all of their allotted water, risk losing the rights to this water.

Although conserving water is a beneficial use and therefore will not result in a reduction of water rights, the burden is on the appropriator to prove such conservation to the authorities. Unfortunately, calculating the amount of water conserved is very complicated and an imprecise. Accordingly, rather than risk losing valuable water rights, appropriators, like the farmers in the Estate of Steed, are thereby discouraged from adopting more efficient methods of operation and conserving water to lease. Instead, water appropriators have a financial incentive to use all of their water rights, however inefficient such use may be, to avoid the risk of forfeiture. This logical consequence of our current system promotes the inefficient and illogical incentive to flood lands and reuse instead of applying that extra water to a more productive use that will return higher environmental, economic, and social benefits.

The transfer of water is further complicated when the water rights are conveyed separately or there is a different use contemplated. The laws of water take extra precaution by ensuring that the rights of other stream appropriators are not negatively impaired. This special protection comes in the form of the no-harm rule.

In sum, farmers who reduce water use do not necessarily see their “savings” translate into that same amount of conserved water being available to lease to someone else for a different—and possibly more important—use. Rather many farmers conclude that the lack of information available to senior appropriators makes it extraordinarily difficult to transfer water, and the possibility of losing their unused water rights is too great to risk implementing more efficient conservation technologies. As a result, these right holders have been notoriously resistant to water conservation because the legal system has created a financial disincentive that actually promotes inefficient use. In effect, the overly complicated process of transferring water actually discourages water conservation and creates a perverse motivation for farmers to overwater their crops merely to avoid losing water rights.

III. The Short-Term Solution: Transfer of Water

Water transfers could be one method of allowing water managers to combat drought-riddled areas and repurpose existing water resources for new and more beneficial uses. Transfers of water could help improve farming practices, further energy development, and meet the demands of increasing urbanization. States can also develop new infrastructure and storage capabilities, implement conservation and efficiency initiatives, and promote water reuse projects.

In general, water transfers are done on an ad-hoc basis and there are barriers to overcome. In particular, measurement poses a difficult problem for authorities attempting to regulate use. This problem is exacerbated by the limited data available on the amount of water used. However, SWIIM can help facilitate the transfer of water; and thereby help farmers sell their extra water so it could be utilized for other uses. SWIIM has the capacity to accomplish these tasks by allowing farmers to assess all of their economic options. The program instructs the farmer on what crops can be grown, the expected yields that can be anticipated from each of these various crop options, and the amount of water required to achieve the various crop yields. SWIIM is also a tool that provides a guide to the farming interest in how to sell or lease water rights, thereby enabling the farm to retain a sufficient amount of their water rights to continue productive farming. Most importantly, this new system can work in a manner that is consistent with the western doctrine of prior appropriation and still help expedite water transfers. As a result, the prior appropriation doctrine may continue serving as the legal framework to guide the allocation of water resources, while incorporating the flexibility to meet evolving needs through the promotion of more efficient utilization of water rights in a rapidly changing environment.

SWIIM’s software enables farmers to lease their extra water to others. This program allows farmers to quote the availability of water and provide it to other users who need this resource—sharing the water for the best and most efficient use. Farmers who hold the most senior water rights in a region will no longer have the economic incentive to flood their fields with little regard for efficiency. Instead, this program creates a new opportunity for both the farmer in particular and society in general, whereby the farmer maximizes the economic return on the use of water and others can receive the benefit of a limited resource that would otherwise be unavailable.

To utilize the program, the farmers must enter detailed information about past use of their land and water rights and then identify measures that they are willing to adopt to reduce water use. Using data from irrigation districts, field instruments, weather reports, satellites, and low-altitude flights, the SWIIM software calculates in real time how much of a farm’s water is consumed and how much returns to underground flows—thereby ensuring that farmers do not jeopardize their rights if they choose to sell or lease their conserved water. Using the information provided, an algorithm developed jointly with the U.S. Department of Agriculture informs farmers how to conserve water, by adopting efficient measures such as a targeted drip-irrigation system that will not result in reduced productivity.

IV. Conclusion

With an influx of population and industries settling in the water-scarce West, combined with an increasingly arid climate, SWIIM could help evaluate and facilitate how society utilizes water transfers as a means of allocating a vital resource. This technology will enable stakeholders to learn from other’s experiences with water transfers, thereby facilitating more informed and efficient decisions with respect to the use of their water rights. SWIIM facilitates water transfers to other uses while avoiding inflicting harm to agricultural economies and surrounding communities.

The law encourages implementation of improvements in water systems to promote the conservation of water. However, to effectively implement such improvements, water rights owners should not be penalized for conserving water. Instead, there should be an incentive system to economically reward implementing water conservation practices. SWIIM offers a market-based solution that could be regulated to ensure there is equal water distribution to municipalities and individuals in need of this vital resource. The purpose of water transfers and the utilization of the SWIIM system, is not to “dry” up the farm. Rather, it is to move the water efficiently where needed, without adverse economic consequences to the senior right holder. When we “free-up” the water, we can grow as a society, conserve water and utilize the flexibility that the prior appropriation doctrine is intended to allow.

Managing California’s complex water storage and delivery system is a never-ending balancing act between supply, demand and environmental considerations, particularly during a severe drought. As water scarcity reaches unprecedented extremes in the West, SWIIM technology could help mitigate the impact in the region. It provides one method of managing drought and is a welcome new addition to the state’s water market.

References

See generally Gunnison Irrigation Co. v. Gunnison Highland Canal Co., P. 852 (1918).

See generally Estate of Steed v. New Escalante Irr. Co., 846 P.2d 1223, 1228 (Utah 1992).

SWIIM home, http://www.swiimsystem.com/home.aspx, (last accessed September 23, 2015).

DAVID H. GETCHES, WATER LAW IN A NUTSHELL (5th ed. 2015).

Hallie Jackson and Elizabeth Chuck, Farmers Faced With Whether to Grow Crops or Sell Water, April 4, 2015, http://www.nbcnews.com/storyline/california-drought/grow-crops-or-sell-water-california-farmers-face-dilemma-n335696.

Greta Kraul, Airbnb for water seeks to help farmers transfer surplus, S.F. GATE (April 21, 2015) http://www.sfgate.com/business/article/Airbnb-for-water-seeks-to-help-farmers-transfer-6215032.php.

A. DAN TARLOCK ET AL., WATER RESOURCE MANAGEMENT A CASEBOOK IN LAW AND PUBLIC POLICY (Robert C. Clark et al. eds., 7th ed. 2002).

“The Story of Regenesis Management Group: Balancing Water Use for Profit and Conservation” (PDF). COLORADO WATER, NEWSLETTER OF THE WATER CENTER OF COLORADO STATE UNIVERSITY 28 (1): 19.

Lorraine Chow, Can This ‘Airbnb for Water’ Help Drought-Stricken Farmers?, ECO WATCH, (April 27, 2015) http://ecowatch.com/2015/04/27/swiim-app-drought-farmers/.

Greta Kraul, Airbnb for water seeks to help farmers transfer surplus, S.F. GATE (April 21, 2015) http://www.sfgate.com/business/article/Airbnb-for-water-seeks-to-help-farmers-transfer-6215032.php.

Larua Bliss, It’s About to Get Easier For California Farmers to Conserve Water—And Sell It, CITY LAP (July 10, 2015) http://www.citylab.com/weather/2015/07/its-about-to-get-easier-for-california-farmers-to-conserve-waterand-sell-it/398144/.

Jennifer Najjar

Image: An aerial shot of Ririe Dam in Bonneeville, Idaho.  Flickr user Sam Beebe, 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/.