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WATER WARS: Landmark Victory for Agua Caliente Band of Indians Sets Precedent for Groundwater Rights

by admin on 3rd-December-2017

S. E. Williams

Tribal Chairman Jeff Grubbe; Groundwater pipe; and the Cochella Valley

A Groundbreaking Announcement – The United States Supreme Court announced Monday afternoon it will not review a landmark decision by the 9th Circuit Court of Appeals in a lawsuit by the Agua Caliente Band of Cahuilla Indians’ against the Coachella Valley Water District (CVWD) and Desert Water Agency (DWA). In the suit, the tribe asserted its rights to groundwater beneath its reservation. 

In response to the Supreme Court decision, Tribal Chairman Jeff Grubbe stated, “Today, the Supreme Court denied DWA and CVWD’s request to review the Ninth Circuit’s ruling that the Agua Caliente Reservation has a federal reserved right to groundwater.” He continued, “Because of the Supreme Court’s decision, the favorable rulings from the federal district court and the Ninth Circuit Court of Appeals recognizing and protecting the Reservation’s federal water rights are now settled law.” 

There is little question the outcome of this case will have far reaching implications for tribal water rights, not only in California, but across the country. 

The water agencies had hoped the high court would weigh in on the issue decided by the Ninth Circuit regarding whether tribes hold federal rights to groundwater and surface water on their reservations. In addition, they had looked to the court to clearly define the boundaries between state-administered water rights and federal water rights. 

The high court has never ruled on this issue and they declined to do so this week. As a result, the Ninth Circuit ruling stands. 

An Epic Battle 

For more than twenty years, Agua Caliente struggled with the water districts to secure recognition of what the tribe believed was its legitimate interest in the groundwater underneath their reservation. In addition, the tribe is a strong advocate for responsible management of the aquifer. 

Finally, in 2013, the tribe filed a lawsuit in an unprecedented effort to assert its rights to the groundwater beneath its reservation in Palm Springs and the surrounding desert communities. In the lawsuit, the tribe claimed CVWD and DWA have a long history of over-drafting from the aquifer and recharging it with water from the Colorado River. Among the concerns voiced by the tribe was that water from the Colorado River, “contains higher total dissolved solids, nitrates, pesticides, and other contaminants.”

When the suit was filed, Grubbe noted, “The failed stewardship of the Coachella Valley’s most precious resource by these water districts has to stop.” 

He stressed, “We do not take this action lightly but as a Sovereign Nation, we have a responsibility as well as a commitment to communities in the Coachella Valley, to protect and preserve the Valley’s natural resources. We cannot sit idly by as the aquifer continues to be depleted and the water polluted. Our water quality is among the worst in the State.” 

The water agencies continued to persist groundwater is a public resource and the tribe in essence had no more rights under California law than all other landowners to use water pumped from the aquifer. 

When the suit was filed, both CVWD and DWA issued statements. CVWD’s statement read, in part, “Coachella Valley Water District has been working with the Agua Caliente Band of Cahuilla Indians for the past year to further our mutual understanding of all the issues surrounding groundwater use and replenishment in the valley. Therefore, it was disappointing to learn this afternoon that the tribe has filed a lawsuit against the district based on misinformation regarding drinking water quality.” 

Patricia Oygar, DWA Board President said, in part, “We are deeply disappointed by the filing of a lawsuit based on misinformation regarding the quality of the Coachella Valley water supply and an overly broad claim to surface and groundwater rights that is neither supported by the law or previous court rulings.” 

Despite the water agencies’ protestations, the federal district court ruled in favor of the Agua Caliente Band of Cahuilla Indians, finding Agua Caliente has “priority federal rights to groundwater” in the Coachella Valley. 

The water agencies immediately appealed the ruling but were stymied again when the Ninth Circuit reached its decision and reaffirmed the superior rights to groundwater as determined by the district court. 

When the Ninth Circuit issued its determination, DWA General Manager Mark Krause lamented, “We’re going to keep working toward the best outcome for the public.” Despite the ruling by two courts, he asserted, “The groundwater basin should remain a shared public resource, carefully managed to ensure families and businesses have access to clean, reliable water for years to come.” 

Agua Caliente, however, saw it quite differently. According to Grubbe, “The Ninth Circuit’s decision today validates the Tribe’s work to protect and preserve the Coachella Valley’s most important natural resource.” Grubbe viewed the court’s decision as a crucial step toward responsible water management in the future. “Because the United States intended to reserve water when it established a home for the Agua Caliente Band of Cahuilla Indians, we hold that the district court did not err in determining that the government reserved appurtenant water sources—including ground water.” 

The Ninth Circuit affirmed the lower court ruling in alignment with what Agua Caliente had long claimed—that the tribe has a federally established right to groundwater that dates back to the creation of its reservation in the 1870s. 

The case was rooted in varying interpretations of the Winters Doctrine. In 1908, the Supreme Court issued a ruling in a case entitled Winters v. United States. In that case, the court ruled that Indian tribes are entitled to sufficient water supplies for their reservations.

In the Agua Caliente case the Ninth Circuit ruled the Winters Doctrine is applicable to surface water and groundwater on federally reserved land including Indian reservations, national forests, national parks, etc. 

The water agencies had little choice other than to appeal to the Supreme Court and challenge the Ninth Circuit’s decision. 

Those Who Supported the Water Agencies 

At least ten states, all lead by Republican governors, joined the water agencies in their fight as they prepared to do battle in the nation’s highest court on this issue. States who joined the friend-of-the-court brief included Arizona, Arkansas, Idaho, Nebraska, Nevada, North Dakota, South Dakota, Texas, Wisconsin and Wyoming. California did not get involved in the process nor did it take a public position on the issue. 

In their Supreme Court brief, the states claimed to have a stake in the, “preservation, maintenance and allocation,” of their own water resources. They also claimed the Ninth Circuit’s decision was nothing short of a watershed opinion that washed away the “authority and control that states have traditionally exercised over groundwater resources.” The states also asserted water rights must be acquired under state law, even for federal lands. 

States were not the only agents supporting the water agencies. Several conservative groups also submitted briefs to the court. Included among them, the Pacific Legal Foundation, National Water Resources Association, Western Coalition of Arid States and the Irrigation and Electrical Districts’ Association of Arizona.

Agua Caliente Had Its Own Supporters 

Native American tribes across the nation, particularly in the west, watched the case with vested interest. At least 35 tribes, including tribes from Washington State, Nevada, and California, and no less than five tribal organizations filed a brief in support of Agua Caliente. 

The U.S. Department of Justice (DOJ), under the stewardship of former U.S. Attorney General Eric Holder, also joined the lawsuit in 2014 on behalf of Agua Caliente. The DOJ claimed it wanted to ensure water rights for the tribe. 

When arguing before the Ninth Circuit in the case, DOJ attorney Elizabeth Ann Peterson claimed state law “can’t defeat a federal reserved water right.” According to Peterson, “When the United States reserved this land for a tribe, it reserved at the same time sufficient water for the long-term subsistence of this tribe on that land.” 

Peterson cited a 1976 Supreme Court ruling (Cappaert v. United States) where the court backed federal reserved water rights for a national monument. In its ruling, the court claimed the United States could protect its water “from subsequent diversion, whether the diversion is of surface or groundwater.” 

Peterson compared Cappaert with the Agua Caliente case. “If that water is going to provide a necessary resource for the long-term use of the tribe, protection of that resource is a critical interest of the tribe.” She went on to claim the tribe’s water resource was being subjected to diversions by others that “may threatened the long-term value of that right, or availability of that water, to the tribe.”

What Monday’s Decision Means 

CVWD and DWA are concerned this week’s decision will impede state and local efforts to manage groundwater efficiently. Also, a number of important decisions are still pending: Does Agua Caliente own storage space in the aquifer? Do the tribe’s water rights include a component that addresses water quality? How much groundwater is Agua Caliente entitled to? 

In 2014, California passed the Sustainable Groundwater Management Act that requires a documented approach to sustainable groundwater management at the local level across the state. It is unclear how this week’s ruling will impact plans already in process in the Coachella Valley. 

Grubbe has always asserted Agua Caliente’s case was also about securing a seat at the table for the tribe on this important issue. During an interview last week, Grubbe told the Desert Sun, “Having a right to govern that water and decide what to do with that water is a right that every tribe should have.”

Category: Feature Stories.
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