9th Circuit: Federal Reserved Water Rights Applies to Groundwater

Texas A&M AgriLife Extension –  by Tiffany Dowell

A landmark water ruling came out of the United States Court of Appeals for the Ninth Circuit earlier this year.  This decision–that federal reserved water rights include groundwater–could have significant impacts on groundwater across the country, and in particular in the West.  

Background

In the late 1800’s the federal government established a reservation (“the Reservation”) in California for the Agua Caliente Band of Cahuilla Indians (“the Tribe”).  The Executive Orders creating the Reservation state that the purpose was for lands be set aside “as reservations for the permanent use and occupancy for the Mission Indians in southern California” and that the land would be reserved for “Indian purposes.”  These Orders were based upon reports from Indian agents who said there needed to be land reserved for the tribe to “build comfortable houses, improve their acres, and surround themselves with home comforts.”

The Reservation consists of just over 31,000 acres in the Coachella Valley of California. Rainfall in this area averages 3-6 inches per year.  The Valley’s only real surface water source is the Whitewater River System, which produces 4,000-9,000 acre-feet per year, mostly in the winter months.  Due to these factors, almost all water consumed in the region is groundwater from the Coachella Valley Groundwater Basin.  Groundwater levels in the Basin have been in a steady decline.

Currently, the Tribe has not pumped groundwater.  It has obtained water from the Whitewater River System based on surface water rights and it has purchased groundwater from other water agencies in the area, including the Coachella Valley Water District.

Procedural History

Given the diminishing water resources in the area, the Tribe filed suit in the US District Court for the Central District of California against the Coachella Valley Water District and other area water agencies in 2013, seeking a declaration that the Tribe had a federally reserved right to the groundwater underlying the Reservation.  In 2014, the United States intervened in the case, also arguing that the Tribe has a federally reserved water right to groundwater.

The parties agreed to divide the litigation into three parts: (1) whether the Tribe has a reserved right to groundwater; (2) whether the Tribe beneficially owns the “pore space” of the groundwater basin underlying the Reservation and whether a tribal right to groundwater includes the right to receive water of a certain quality; and (3) quantification of any recognized groundwater rights.

Taking the first question only, the trial court found for the Tribe, holding that the United States reserved appurtenant groundwater when it established the Tribe’s Reservation and that included groundwater.  The trial court then certified its decision for an interlocutory appeal, which the water agencies sought and were granted by the US Court of Appeals for the Ninth Circuit.

Ninth Circuit Opinion

In March 2017, the Ninth Circuit affirmed the lower court’s opinion and sided with the Tribe. [Read full opinion here.]

The Court broke the issue into three questions, which it answered in turn: (1) whether the US intended to reserve water when it created the Tribe’s Reservation; (2) whether the reserved rights doctrine encompasses groundwater; and (3) whether the Tribe’s correlative rights under state law or the historic lack of drilling on the Reservation, or the water the Tribe receives pursuant to the Whitewater River Decree impacts the answers to the first two questions.

(1) The US intended to reserve water when it created the Reservation.  The US Supreme Court has made clear that when the US “withdraws its land from the public domain and reserves it for a federal purpose, the Government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.”  These reserved rights are deemed vested on the date of reservation and are superior to the rights of future appropriators.  The two major limitations on this reservation of water rights are that the US reserved only the amount of water necessary to accomplish the primary purpose of the reservation, and it only reserves water if it appurtenant to the withdrawn land.

The Court turned to the primary purpose for which the Reservation was created. The Executive Orders creating the Reservation make clear the land was set aside for “permanent use and occupancy” of the Tribe.  Prior courts have stated that the purpose of Indian reservations is to “provide a home for the Indians” which is “broad” and should be “liberally construed.”  Without water, the Court noted, the Tribe would have no ability to permanently live on the Reservation.  Thus, the Court held, the US did impliedly reserve water when creating the Reservation.

(2) The federally reserved water includes groundwater.  This is the key question in the case, which had never been directly addressed before by a federal court.  In reaching the conclusion that federal reserved water includes groundwater, the Court looked to the fact that many locations throughout the West, including the Reservation, rely on groundwater as their only viable water source.  “Survival is conditioned on access to water-and a reservation without an adequate source of surface water must be able to access groundwater.”

(3)  Neither state law nor the Tribe’s actions impact the Court’s conclusion that the US reserved groundwater for the Reservation.  The water agencies set forth three arguments as to why the Tribe should not have groundwater rights. The Court rejected each.

First, they argued that the Tribe already has a correlative right to groundwater under California law.  However, as the Court explained, state water law is preempted by federal reserved rights, which exist independently from state law.  Thus, regardless of California water law, federal reserved water rights exist and are superior to rights of future appropriators.

Second, they argued that the Tribe had not historically used groundwater on the Reservation.  The Court held there is no requirement of showing historic use in order for a federal reserved water right to be recognized.

Third, they argued that because the Tribe had access to surface water, it does not need a federal reserved right to groundwater.  The Court rejected this, finding that the proper inquiry to determine whether and how much water is reserved by the federal government does not look at whether water is currently needed, or whether alternative sources are necessary; it looks only to “whether water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.”

What’s Next

The water agencies sought review of the Ninth Circuit’s opinion by the United States Supreme Court.  Numerous amicus curiae briefs were filed with the Court, including one filed by 10 attorneys general of various western states (including Texas) urging the Court to take up the case and hold that federal reserved water rights do not include groundwater. [Read amicus brief here.]  Last week, the Court denied certiorari and will not hear the case.

Thus, the litigation will head back to the trial court to address the other two phases of the litigation and determine whether  the Tribe beneficially owns the “pore space” of the groundwater basin underlying the Reservation and whether a tribal right to groundwater includes the right to receive water of a certain quality, and the quantification of any recognized groundwater rights.

Key Takeaways

This case is really a landmark decision as no federal court had previously addressed whether federal reserved groundwater rights included groundwater.  Considering that much of the western United States contains large amounts of federal land–not just Indian reservations, but national parks and military bases as well–that, based on this decision, may hold groundwater rights.  Given the water issues already facing the West, this could have significant impacts on water planning, policy, and usage.

https://agrilife.org/texasaglaw/2017/12/04/9th-circuit-federal-reserved-water-rights-applies-groundwater/