Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Introduction

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

Background on Federal Reserved Rights to Water

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

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

Tribal Reserved Rights to Groundwater Recognized by Litigation

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

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

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

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

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

Tribal Reserved Rights to Groundwater Recognized by Settlement

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

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

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

Limitations on Use of Tribal Reserved Rights to Groundwater

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

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

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

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

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

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

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

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

 

Sources:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Introduction

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

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

Water Quality in Winters Doctrine

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

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

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

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

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

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

Another Means of Ensuring Clean Water

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

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

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

Conclusion

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

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

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

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

[2]  Id.

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

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

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

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

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

[8]  Winters, 207 U.S. 564 at 567.

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

[10]  Id.

[11]  Id. at 668–69.

[12]  Id. at 665.

[13]  Id.

[14]  Id. at 665–66.

[15]  Id. at 669.

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

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

[18]  Hopi Tribe, 782 F.3d at 668–69.

[19]  Id. at 669.

[20]  Id.

[21]  Id.

[22]  Id. at 665–66.

[23]  Id. at 669.

[24]  Id.

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

[26]  Id. at 1450.

[27]  Id. at 1451.

[28]  Id.

[29]  Id. at 1450.

[30]  Id.

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

[32]  33 U.S.C.A. § 1377 (June 2014).

[33]  Id. at (e).

[34]  See §§ 1377 and 1251(g).

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

[36]  Id. at 118.

[37]  See 33 U.S.C.A. § 1383(c).

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

[39]  Chandler, supra note 35.

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

[41]  Id.


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Agua Caliente raises pressing issues at the intersection of Federal Indian law and water law that have yet to be conclusively resolved by the U.S. Supreme Court. Among these issues are whether federal reserved water rights apply to groundwater and the scope and circumstances under which aboriginal water rights, with a priority date of time immemorial, may be claimed. This piece explores in depth the Agua Caliente’s claim to aboriginal rights to groundwater, and how the district court ruled on this claim in its March 20, 2015 ruling on summary judgment.

Background on Federal Indian Water Rights

Although the law of Indian water rights remains in flux, water rights potentially available to federally recognized tribes fall into two categories: 1) federal reserved, or Winters, water rights and 2) aboriginal, or Winans, water rights. Both types are at issue in Agua Caliente, and while this post primarily discusses the Agua Caliente Band’s aboriginal water rights claim, an overview of both types of rights provides useful background.

First, tribes may be entitled to federal reserved water rights. The U.S. Supreme Court first recognized reserved water rights in Winters v. United States, 207 U.S. 564 (1908), which concerned the Fort Belknap Indian reservation in Montana. The Milk River flows through the Fort Belknap reservation, and, at the time of the case, a number of non-Indian Montanans had obtained state appropriative rights to the river’s water. The federal government sought to restrain these state-sanctioned users from diverting water upstream of the reservation, and the question arose whether the Indian reservation possessed water rights through which it could restrain other appropriators. In response to this question, the Court held the reservation did possess water rights because, in setting aside the Fort Belknap Indian reservation, the federal government reserved water sufficient to fulfill the purpose of the reservation. In other words, if by treaty the United States reserved land to provide a tribal agricultural homeland, the resulting Indian reservation and its occupants would possess federal reserved water rights to the quantity of water necessary to fulfill that agricultural purpose. Later courts, such as Arizona v. California, 373 U.S. 546 (1963), clarified that these rights apply to waters appurtenant to the reservation and have a priority date commensurate to the date of the treaty or other federal action reserving the lands.

In addition to reserved water rights, tribes have invoked aboriginal water rights carrying a priority date of time immemorial. The key Supreme Court case supporting such rights is United States v. Winans, 198 U.S. 371 (1905). While Winans was not a water rights case, it contains a principle of Indian law applicable to water rights, namely that treaties and other federal actions are not a grant of rights to the Indians, but rather a grant of rights from them. Thus, according to Winans, tribes retain rights that they did not explicitly cede in a treaty or other agreement. In the case of Winans, these retained rights included hunting and fishing.

The central case recognizing the Winans principle with respect to water rights is United States v. Adair, 723 F.2d 1394 (9th Cir. 1983). There, the Ninth Circuit held the Klamath Tribe of Oregon possessed aboriginal title to certain lands, hunting, and fishing rights, and “by the same reasoning, an aboriginal right to the water used by the Tribe as it flowed through its homeland.” Id. at 1413. While the Klamath Tribe ceded title to most of its ancestral lands by treaty, the Tribe retained exclusive use and occupancy rights. Relying on Winans, the Adair court found that there was “no indication in the treaty, express or implied, that the Tribe intended to cede any of its interest in those lands it reserved for itself.” Id. at 1414. Thus, the court held, the Tribe possessed a continuing water right on the Klamath Reservation to support its hunting and fishing lifestyle. This right, the court explained, carried a priority date of “time immemorial.” Id.

Reserved and Aboriginal Rights in Agua Caliente

The Agua Caliente Band of Cahuilla Indians (“Agua Caliente” or “Tribe”) is a federally recognized tribe with a reservation in southern California’s Coachella Valley. The Tribe has used and occupied the land constituting and surrounding their current reservation for generations. The Tribe’s ancestral homeland in the Coachella Valley forms part of the Sonoran desert, where water is scarce, particularly in California’s current drought. In 2013, the Agua Caliente sued the Coachella Valley Water District and the Desert Water Agency seeking, among other requests, a declaration that the Tribe possesses both federal reserved and aboriginal rights to the Valley’s groundwater. This lawsuit began in the United States District Court for the Eastern District of California.

The parties to the suit agreed to break the action into three phases. Phase I, which was decided in March 2015, addressed two primary legal questions: (1) whether the Agua Caliente held federal reserved rights to groundwater under the Winters doctrine, and (2) whether the Tribe held aboriginal rights to groundwater. The court held the Tribe’s federal reserved water right included a right to groundwater. The court found the reservation’s purpose was to provide a tribal homeland, and thus the Tribe possessed a federal reserved water right sufficient to fulfill that purpose. The court reasoned that this right extended to the groundwater beneath the Tribe’s land as an appurtenant source of water. See Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015) at 7-10 (hereinafter “Agua Caliente”). Because the extension of the Winters doctrine to groundwater has not been settled by the U.S. Supreme Court, this constitutes a major victory for the Tribe.

The Eastern District, however, denied the Tribe’s aboriginal rights claim. This section recounts the parties’ arguments in this case.

i. The Parties’ Arguments

The aboriginal rights arguments in Agua Caliente centered on federal statutes enacted in the wake of California joining the United States. In 1848, Mexico ceded land that would become the State of California to the United States in the Treaty of Guadalupe Hidalgo. Shortly thereafter, in 1850, California was admitted to the Union and became a state. And just one year later, the U.S. Congress passed the Act of 1851, which sought to protect the property rights of former Mexican citizens and to settle land claims in California. The Act required those claiming property rights to file their claims within two years.

Coachella argued that the 1851 Act required all claims to land to be submitted, and that the Agua Caliente’s failure to submit a claim within the two-year period set forth in the Act meant that any claims to the land were extinguished in 1853. Likewise, Coachella argued that the record lacked sufficient factual support for Agua Caliente’s aboriginal groundwater rights claim. In particular, Coachella emphasized the lack of evidence that Agua Caliente reservations had any wells in use, but rather that they only used surface water.

Agua Caliente countered that the 1851 Act did not extinguish their aboriginal rights. Agua Caliente did not dispute that they failed to file a claim in the two-year window of the Act. Instead, they argued that the Act, which on its terms pertained to “each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government,” Plaintiff’s Brief at 20 (citing An Act to Ascertain and Settle the Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851)), did not apply to them because their claim to land did not stem from the Spanish or Mexican government. Rather, they claimed aboriginal rights based on use and occupation since time immemorial, and did not rely upon title derived from the Spanish or Mexican government. To buttress this argument, Agua Caliente also pointed to an 1853 Act passed by the U.S. Congress to transfer California lands in which the United States retained a proprietary interest to the United States. Because this 1853 Act included an exception for “land in the occupation or possession of any Indian tribe,” the Tribe argued that this provision explicitly recognized as valid the kind of aboriginal title that they asserted. In making this argument, Agua Caliente also attempted to distinguish a series of U.S. Supreme Court cases finding aboriginal rights to be extinguished by the Act of 1851. It did so on the ground that those U.S. Supreme Court cases addressed “Indian land rights that fell within the purview of the 1851 Act,” but that Agua Caliente’s land rights did not fall within the purview of the 1851 Act.

Likewise, because an 1850 law passed by the U.S. Congress created a treaty commission for the purpose of clearing aboriginal title claims of non-missionized Indians, Agua Caliente argued that they did not fall within the scope of the Act of 1851. The Act of 1851, their argument went, did not apply to Indians outside the zone of missionization because the 1850 Act covered their claims. Agua Caliente also noted that they had negotiated a treaty with the United States in 1852 that set aside a reservation, but that they were not notified of the U.S. Senate’s failure to ratify the treaty for some time.

Finally, Agua Caliente argued that even if their aboriginal land rights had been extinguished by the 1851 Act, they subsequently reestablished title by continuing their exclusive use and occupancy of the land and water on their ancestral lands.

ii. The Court’s Ruling

The court’s ruling on summary judgment granted the Agua Caliente federal reserved rights to groundwater, but denied the claim for aboriginal groundwater rights. It rejected both of Agua Caliente’s aboriginal rights arguments, finding that the Tribe’s failure to file a claim in accordance with the Act of 1851 extinguished any aboriginal water rights. Moreover, the court held that even if the 1851 Act did not extinguish these aboriginal rights, the establishment of a reservation in 1876 “effectively re-extinguished that right.” Agua Caliente at 13.

Although the court did not explicitly address Coachella’s argument that no factual support demonstrated groundwater use in the relevant time period, the court did note that aboriginal rights to groundwater are not founded upon use of groundwater itself, but rather derive from a right to occupancy. See Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. EDCV 13-883-JGB, 2015 WL 1600065 (E.D. Cal., Mar. 20, 2015) at 13 fn. 12 (“[N]o such freestanding aboriginal rights exists, all derive from a right to occupancy.”). Accordingly, proof of actual groundwater use was not necessary.

The court’s decision to deny aboriginal rights to Agua Caliente relies fairly heavily on U.S. Supreme Court precedent regarding the Act of 1851. Although the argument that an aboriginal right does not stem from Spanish or Mexican authority and that property rights not stemming from Spanish or Mexican authority are not covered by this Act appears persuasive on its face, past U.S. Supreme Court decisions have interpreted the Act of 1851 as requiring tribes claiming aboriginal land rights to have filed a claim pursuant to the Act to preserve their occupancy rights. The main case finding otherwise, Cramer v. United States, 261 U.S. 219 (1923), upon which Agua Caliente relied heavily, contains some language favorable for the Tribe. See, e.g., id. at 231 (“The Indians here concerned . . . and their claims were in no way derived from the Spanish or Mexican governments.”). Nevertheless, while the U.S. Supreme Court has not affirmatively stated that all aboriginal land claims in California fall within the ambit of the Act of 1851, the Ninth Circuit in U.S. ex rel Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986), effectively interpreted the line of U.S. Supreme cases as doing just that. The Chunie court distinguished Cramer on the ground that the tribe in that case did not occupy the land in question at the time of the Act of 1851. Interestingly, the Eastern District did not address Agua Caliente’s argument about the 1850 treaty commission, so the court’s exact perception of that argument remains unclear. Nevertheless, the Eastern District did not find it persuasive enough to rule in the Tribe’s favor on the aboriginal water rights claim.

The Eastern District’s assertion that the creation of a reservation for the Tribe in 1876 reservation extinguished aboriginal rights, however, appears inconsistent with prior case law on aboriginal water rights. As put forward in Winans, reservations are not a reservation of rights to tribes, but rather a reservation of rights from them—a reservation of those not granted. Accordingly, the Ninth Circuit in Adair, 723 F. 2d at 1414, noted, concerning the aboriginal water rights it found to exist for the Klamath Tribe, “[t]he rights were not created by the 1864 Treaty, rather, the treaty confirmed the continued existence of these rights.” The Eastern District here, citing Hagen v. Utah, 510 U.S. 399, 412 (1994) instead explained that reservation means “the United States withdraws land which it then ‘set[s] apart for public uses.’” The Eastern District used this statement to support the assertion that “an aboriginal right of occupancy is fundamentally incompatible with federal ownership.”  Agua Caliente at 13. This assertion, of unclear origin or legal underpinning, contradicts Adair, which recognized a continued aboriginal right of occupancy on a federal reservation. Adair, 723 F. 2d at 1414.

Conclusion

First, in our estimation, the Eastern District should have refrained from foraying into the counterfactual that the Tribe might have reclaimed its aboriginal title between the Act of 1851 and the 1876 establishment of its reservation. Alternatively, just as the Ninth Circuit did in Adair, the court could have conducted a robust interpretation of the executive order that established the reservation in 1876 to determine whether or not it reserved any remaining aboriginal rights. We feel that it is a legal error to conclude that a reservation automatically extinguishes any aboriginal rights that may exist without even examining the text of the order establishing the reservation. However, because the Tribe has elected not to appeal the aboriginal rights portion of this ruling, the order and its flawed reasoning will remain on the books.

Case law surrounding the presence of aboriginal water rights remains murky. Although Agua Caliente ultimately prevailed on their reserved water rights claim in this case, recognition of aboriginal rights can be crucial to tribes, primarily when 1) a federal reserved rights claim is not available; or 2) the priority date guaranteed by a reserved right is not early enough to preserve a tribe’s access to water. Given the lack of clarity in aboriginal water rights, erroneous decisions in this arena are not surprising. Appellate courts should work to make the law here more clear when the opportunity to do so arises to provide better guidance to lower courts attempting to make sense of the confusing state of the doctrine.

Although this piece has focused on the legal underpinnings of aboriginal rights, it is worth acknowledging that, from the perspective of basic fairness, these legal underpinnings are themselves seriously flawed. During this time period, eighteen tribes in California negotiated treaties with the United States that were never ratified. No one bothered to notify the tribes of this fact. Combined with the Act of 1851, these actions left many California tribes homeless. On top of this, these tribes had to endure state-sanctioned attempts to get rid of the Indian population. There are some tools within the law, such as aboriginal water rights, that can be used to advance tribal interests, but that does not change this country’s history of using the law itself to subjugate the people who have lived here the longest, a history that is still present in certain strains of modern legal doctrine.

Richard Griffin and Claudia Antonacci, JD Candidates, Stanford Law School, Class of 2017

Image: Warner’s hotsprings and the village of Aqua Caliente, California ca. 1900.  Flickr user Ashley Van Haeften, Creative Commons.

SOURCES:

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

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

United States v. Winans 198 U.S. 371 (1905).

United States v. Adair, 723 F.2d 1394 (9th Cir. 1983).

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

An Act to Ascertain and Settle the Private Land Claims in the State of California, 9 Stat. 631 (March 3, 1851).

U.S. ex rel Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986).

Agua Caliente Memorandum of Points and Authorities in Support of Motion for Summary Judgment on Phase I Issues.

Coachella Valley Water District Memorandum of Points and Authorities in Support of Motion for Summary Judgment or in the Alternative, for Partial Summary Judgment.

United States Bureau of Indian Affairs, Who We Are, http://www.bia.gov/WhoWeAre/RegionalOffices/Pacific/WeAre/.


Editor’s Note: This piece is part of a six-part collaborative series between the University of Denver Water Law Review and the Stanford Environmental Law Journal that examines the upcoming Ninth Circuit case, Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District and the development of the doctrine of federal reserved rights to water.

Tribal Participation in the Sustainable Groundwater Management Act

In 2014, the California Legislature passed the Sustainable Groundwater Management Act (SGMA), which implements a comprehensive framework for the regulation of groundwater in California.[1]  SGMA relies on local agency leadership to achieve “sustainable groundwater management,” defined as the management and use of groundwater without an “undesirable result,” such as unreasonable reduction of groundwater storage, degradation of quality, seawater intrusion, or land subsidence.  Under the new law, certain high- and medium-priority basins will be required to adopt sustainable groundwater management plans the end of January 2022, and to attain sustainable groundwater management by 2040.[2]  While SGMA contains several provisions pertaining to tribes, it raises many more questions than it answers about how the new regulations will affect the more than one hundred federally recognized Indian tribes that reside in California.

Much of the uncertainty about SGMA’s impact on tribes and vice versa stems from the fact that federally recognized tribes are sovereign entities that often fall outside of state regulation; tribes have a government-to-government relationship with the U.S. federal government.  This means that, with regard to their federal water rights, federal tribes can effectively ignore SGMA if they so choose, which poses potential problems for the state and local sustainability agencies, because sustainably managing an aquifer generally requires managing the total amount of water removed from the aquifer by all users.  If a local sustainability agency cannot control—or doesn’t even know—the amount of groundwater used by a tribe, it will be more difficult for that agency to manage its groundwater basin.  As a result, SGMA seeks to pull federal tribes into local considerations of groundwater management and conservation; it provides that tribes “may voluntarily agree to participate in the preparation or administration of a groundwater sustainability plan” and are “eligible to participate fully in planning, financing, and management.”[3]  Still, the Act does not—and cannot—require that federally recognized tribes participate or in fact do anything at all.

The question of whether to participate in the SGMA process raises complex issues for tribes, and since the first deadlines under SGMA have not yet passed, the tribes appear to be in a “wait and see” mode—they are waiting to see how the process takes shape and plays out before deciding whether to participate.  To date, no tribe has fully begun participating in a local SGMA process of developing a sustainability agency or groundwater plan.  In part, this is likely the result of tribes’ concerns that participating in the SGMA process—a state law to which they are not subject—will impinge on their sovereignty.  Tribes may not want to be forced to report to the state; instead, they wish to preserve their government-to-government relationship at the federal level.  For similar reasons, tribes may be hesitant to share their groundwater data and knowledge about the hydrogeology of any aquifers underlying their reservation.  Moreover, even if tribes are interested in coordinating with local agencies or the state, they may lack institutionalized mechanisms for doing so, because historically many of them have coordinated with federal, rather than state, agencies.  Collaborating with local entities under a state law may be an uncomfortable posture and new procedure for tribes.  Thus, for those tribes who may be interested in participating, establishing a formal relationship between tribes and the state that doesn’t entail the state regulating tribes will be a major challenge moving forward.

But if tribes opt not to participate in the SGMA process, what does that mean for the basins that they overlie?  It could mean future havoc for basin plans if tribes assert federally reserved water rights after the basin plans are established.  SGMA guidance documents have appropriately emphasized how to contact and invite tribes to participate, but they have not named the risks of not including tribal participants.[4]   If a tribe asserts a federally reserved water right after a basin plan has been established, it may render the basin plan ineffective by bringing the total amount of groundwater extracted from the basin above the amount required to achieve “sustainable groundwater management.”

The potential for this situation to arise is the result of the nature of the water rights that federal tribes living on reservations may be able to claim.  Under the Winters doctrine, when Congress reserves land for an Indian reservation, Congress also reserves water rights for the tribes living on the reservation.[5]  Those tribes have a right to the amount of water necessary to fulfill the purposes for which the reservation was created, which can include the amount needed to farm all the “practically irrigable acreage” on the reservation.[6]  That “reserved” water right is a federal right and thus usually paramount to rights later perfected under state law.[7]  As a result, unlike holders of state water rights, tribes with federal water rights need not follow the reasonable and beneficial use doctrines that are part of the California water law regime for both groundwater and surface water rights.  Nor do they lose the water right from non-use—federally reserved water rights are not subject to abandonment, so tribes may come forward and assert a water right at any time—including potentially after a basin plan has been established under SGMA.

The concern that tribes will disrupt existing water allocation regimes by suddenly claiming or exercising their reserved water rights is not new, however.  Historically, tribal claims of federally reserved water rights were made with respect to surface water, which presented complex issues for the appropriative rights systems employed in western states like California because they affected the priority of existing rights.  Whereas priority date under the state system is based on the date when the appropriation was initiated, federally reserved water rights have a priority date that goes back at least as far as the date on which the reservation lands were set aside.[8]  As a result, a tribe claiming a federally reserved right to surface water today could bump down in priority all the rights established after the date on which the reservation was created.

Potential Interactions Between Federally Reserved Groundwater Rights and California’s Groundwater Regime

Similar problems arise in the context of groundwater, which recent case law, including the Eastern District of California’s decision in Agua Caliente, suggests can also be the subject of federally reserved water rights.[9]  California manages state groundwater rights under a water rights system that merges three different types of water rights—overlying, or correlative rights; appropriative rights; and prescriptive rights.[10]  The California Supreme Court first recognized correlative and appropriative rights to groundwater in 1903 in the landmark case Katz v. Walkinshaw.[11]  Under this groundwater rights regime, users whose land lies above an aquifer are vested with overlying rights, which allow groundwater extraction for use on the overlying land subject only to the limitation that the amount extracted is reasonable for use on the overlying parcels compared to the demands of other overlying users.[12]  Appropriative rights are established according to a first-in-time, first-in-right system and relate to groundwater extraction for use on property that does not overlie the aquifer.  These rights are junior to overlying rights—appropriators may only use “surplus” water, or water in excess of what is required by overlying users and that will not result in aquifer overdraft.[13]  Finally, prescriptive rights can be created by the open and adverse continuous use of groundwater in an overdrafted basin for the prescriptive period, which in California is five years.  Thus appropriative rights can shed their junior status as compared to overlying rights if they become prescriptive rights through this process.  How federally reserved rights to groundwater will interact with or fit into this complex state groundwater rights system remains largely an open question.

If the tribe’s land overlies a groundwater source, it may begin pumping under the correlative rights doctrine, making a claim to the correlative right of “reasonable use” under state law.[14]  Under that state law correlative right, if there is insufficient water to meet the demands of all overlying landowners, then each must reduce their use in relation to the other overlying landowners.[15]

If, however, the tribe claimed their groundwater right was a federally reserved right, three potential scenarios could occur.  First, if the date of creation of the tribe’s groundwater right preceded perfection of all other overlying groundwater rights, the tribe’s right would probably be absolute and superior, rather than correlative, to others.[16]  Granting a tribe its entire allotment in this scenario would likely follow the California Supreme Court’s rule for coordinating state surface water appropriative and riparian rights, which provides that appropriative rights supersede subsequent riparian rights and vice versa.[17]  Riparian surface water rights, like overlying groundwater rights, are correlative.[18]  As a result, the tribe’s federally reserved right could effectively preempt the state water rights of other users, thus making sustainable groundwater management more difficult, especially in times of scarcity or if the tribe’s water right is large relative to the total amount of water available in the basin.

In a second scenario, all overlying groundwater rights could predate a tribe’s reserved right.  Under this scenario, because federal reserved rights cannot interfere with prior state water rights,[19] the tribe’s right would likely be satisfied after the overlying rights, similar to a state appropriative groundwater right.

Finally, in a third scenario, the date of the creation of the tribe’s groundwater right could fall between the dates when other overlying groundwater rights in the basin vested.  In this scenario, three potential outcomes exist for coordinating overlying users’ rights with the tribe’s reserved right to groundwater: 1) the tribe’s right might be enjoyed in its entirety, preempting all subsequent overlying users, with all overlying users (including those predating the tribe’s reserved right) sharing in shortage, which means all overlying users reduce use proportionally if there is not enough water to meet their total demand; 2) because some overlying rights precede the tribe’s reserved right, the tribe’s right might be satisfied after all overlying rights; or 3) the tribe’s right might, together with other overlying state groundwater rights holders, reduce use proportionally in times of shortage.  This scenario—where a tribal reserved right is created subsequent to some overlying groundwater rights but before some others—mimics a scenario left unresolved in California surface water law when a surface water appropriative right is both predated by and followed by separate correlative, riparian rights to the same waterbody.  According to the authors of one water law casebook, in this surface water situation, “[i]f you cannot find a solution [to this quandary], do not worry.  Neither can we.  To our knowledge, moreover, no court has ever confronted this Gordian knot in a published opinion.  This issue typically does not arise because title to most private land in California was acquired before rival appropriative water rights were perfected.”[20]  Because tribes like the Agua Caliente Band of Cahuilla Indians, located in Southern California’s Coachella Valley, may hold reserved rights to groundwater with priority dates around the time when overlying groundwater rights first vested—the Agua Caliente’s Winters right to groundwater would date to 1876—this “Gordian knot” might become more common as tribal reserved rights to groundwater are increasingly recognized.[21]

In addition, tribes sometimes pump water from an aquifer and deliver it to lands that do not overlie that aquifer.  Under California groundwater law, this situation would make them state law appropriators.  If the tribe claimed a federal reserved right to groundwater in this distant aquifer, however, their reserved right would probably function like reserved rights to surface water: the tribe’s groundwater right would be fulfilled before appropriators with priority dates after the establishment of their reservation and after appropriators with earlier priority dates.[22]  Meanwhile, a tribal reserved right to groundwater that it uses on lands that do not overlie an aquifer might be fulfilled subsequent to all overlying groundwater rights, like state appropriative rights, or in conjunction with overlying groundwater rights as described above.

These complexities highlight the importance of aboriginal rights to groundwater—tribal reserved rights with priority dates of time immemorial.  Aboriginal groundwater rights with a priority date of time immemorial would almost certainly resolve the legal headaches described above, with tribal rights trumping all state groundwater rights.  Another post in this series discusses the aboriginal rights claim in the Agua Caliente case.

Ultimately, under either the correlative rights or the Winters doctrines, a federally recognized tribe on a reservation overlying an aquifer could claim a right to the groundwater at any time, even if it has not previously been pumping.  With a claim under the state correlative rights system, this would likely pose a fairly manageable problem for groundwater managers, since the tribe’s right would be limited by what is reasonable use in relation to other overlying users.  But an absolute, non-correlative, federally reserved claim to groundwater might frustrate basin plans and the established groundwater rights regime.  This is not to say that tribes are in any way at fault for unsustainable groundwater management in California; in fact, aquifer overdraft throughout the state is largely the result of historic non-enforcement of the groundwater rights regime except through litigation and adjudication in some basins.  Rather, the intersection of tribes’ federally reserved rights to groundwater and the California groundwater regime engenders extreme legal complexities and uncertainty that may have unintended consequences for groundwater management under SGMA.

Further uncertainty for basin managers might arise from questions like: if a reservation both overlies an aquifer and is crossed by surface water, may a tribe decide which water resource to make the subject of its federally reserved right (i.e., whether to claim a federally reserved right in the surface water or the groundwater)?  Can it make a claim to some of both the surface water and the groundwater?  If a reservation overlies two different aquifers, may a tribe claim a federally reserved right in one and a correlative right in the other?  Given that courts have only somewhat recently begun to find federally reserved rights in groundwater, these and many other questions about the interaction between California’s groundwater rights system and federally reserved groundwater rights remain unresolved.  In the end, it is in the interest of state and local agencies to attempt to overcome hurdles like tribes’ concerns about sovereignty in order to coordinate with them on groundwater to ensure that SGMA can be implemented effectively while respecting tribal water rights.

Elizabeth Vissers, J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Mary Rock,  J.D. Candidate, Stanford Law School, expected 2017; M.S. Student, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2017

Philip Womble, J.D., Stanford Law School, 2016; Ph.D. Candidate, Emmett Interdisciplinary Program in Environment and Resources, Stanford School of Earth, Energy & Environmental Sciences, expected 2019

Image: Shasta Dam, California.  Wikimedia Commons user Apaliwal, Creative Commons.

[1] 2014 Cal ALS 346, 2014 Cal SB 1168, 2014 Cal Stats. ch. 346 [hereinafter “Sustainable Groundwater Management Act” or “SGMA”].

[2] Philip Womble & Richard Griffin, Two Interactions Between California’s Sustainable Groundwater Management Act and the Public Trust Doctrine, Stan. Envtl. L.J. Blog (Apr. 29, 2015, 2:40 PM PST), http://journals.law.stanford.edu/stanford-environmental-law-journal-elj/blog/two-interactions-between-californias-sustainable-groundwater-management-act-and-public-trust#sthash.yaHnd6gB.dpuf.

[3] Sustainable Groundwater Management Act, ch. 346, §10720.3(c).

[4] See Kristin Dobbin, et al., Collaborating for Success: Stakeholder Engagement for Sustainable Groundwater Management Act Implementation (July 2015), http://www.waterboards.ca.gov/water_issues/programs/gmp/docs/local_asst/sgma_stakeholderengagement_whitepaper.pdf.

[5] Winters v. United States, 207 U.S. 564 (1908).

[6] See Arizona v. California, 530 U.S. 392 (2000).

[7] SGMA recognizes this.  Section 10720.3(d) provides that “federally reserved water rights to groundwater shall be respected in full.  In case of conflict between federal and state law in that adjudication or management, federal law shall prevail.”

[8] Winters v. United States, 207 U.S. 564 (1908); see United States v. Winans, 198 U.S. 371 (1905) (possibly supporting the notion that federally reserved rights could go back as far as time immemorial).

[9]  Cappaert v. United States, 426 U.S. 128 (1976); Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., No. EDCV 13-883-JGB, 2015 U.S. Dist. LEXIS 49998 (C.D. Cal. Mar. 20, 2015); see also Stephen V. Quesenberry et al., Tribal Strategies for Protecting And  Preserving Groundwater, 41 Wm. Mitchell L. Rev. 431, 453 & n.97 (2015) (commenting that “many . . . state and federal courts have found reserved rights in groundwater” and listing cases).

[10] Womble & Griffin, supra note 2.

[11] 141 Cal. 116 (1903).

[12] Womble & Griffin, supra note 2.

[13] Id.

[14] Wright v. Goleta Water District, 174 Cal. App. 3d 74 (relegating an unexercised right and making the newest pumper subordinate to others is inappropriate).  Tribes would be considered the same as any other overlying user, and could thus make a claim under state law to the amount of water that is reasonable compared to the demands of other overlying users.

[15] While this has historically not been enforced, the implementation of SGMA will hopefully ensure that it is enforced in the future.

[16] Quesenberry et al., supra note 9, at 456. See also Judith Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 Wm. & Mary Envtl. L. & Pol’y Rev. 169, 182 (2000) (stating that “[t]ribal [reserved] water rights are, therefore, paramount over subsequent state-law water rights.”).

[17] Haight v. Costanich, 184 Cal. 426 (1920).

[18] Pleasant Valley Canal Co. v. Borror, 72 Cal. Rptr. 2d 1 (Cal. App. 5th Dist. 1998).

[19] Royster, supra note 16, at 182.

[20] Barton H. Thompson et al., Legal Control of Water Resources 209 (5th ed. 2013).

[21] Like riparian surface water rights, overlying rights to groundwater would vest when a current landowner’s predecessor in interest originally received a land patent from the U.S. government. Many of these rights would date to the mid-19th century.  See Lux v. Haggin, 10 P.674, 725 (Cal. 1886).  Any reserved groundwater rights held by California Indian Rancherias that were created in 20th century would be accordingly be junior to most, if not all, overlying groundwater rights in this scenario.

[22] Royster, supra note 16, at 182.


Editor’s Note: This piece is 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).