Ninth Circuit Confirms Tribe’s Water Rights

PASADENA, Calif. (CN) – The Ninth Circuit affirmed Tuesday that the Agua Caliente Band of Cahuilla Indians has a federally reserved right to groundwater under their reservation, despite state water districts’ claims against it.

“In affirming, we recognize that there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater,” Ninth Circuit Judge Richard Tallman wrote for the unanimous three-judge panel. “However, because we conclude that it does, we hold that the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.”

The dispute involves water rights in the Coachella Valley, where rainfall is scarce and the tribe has had its reservation since it was established by 1876 and 1877 executive orders from Presidents Ulysses S. Grant and Rutherford B. Hayes.

The valley’s primary source of water is the Coachella Valley Groundwater Basin. The tribe, rather than pumping groundwater, purchases water from the Coachella Valley Water District and the Desert Water Agency, the defendants. It also receives a small amount of surface water from the Whitewater River System.

However, the basin is routinely overdrafted, so the tribe sued for declaratory and injunctive relief in May 2013. The federal government intervened in 2014 and asserted that, indeed, the tribe’s rights to the groundwater have been reserved. The trial court agreed in 2015 and the water agencies filed an interlocutory appeal before the next phases of litigation, which deal with whether the tribe is entitled to water of a certain quality and how much groundwater it is entitled to.

When the federal government establishes tribal reservations, Tallman wrote, water necessary to accomplish the reservation’s purpose and is “appurtenant to the withdrawn land” is reserved. In this case, the federal government foresaw the reservation’s access to water as a primary purpose of the reservation.

“The Executive Orders establishing the Tribe’s reservation declared that the land was to be set aside for ‘the permanent use and occupancy of the Mission Indians’ or, more generally, for ‘Indian purposes,’” Tallman wrote. “While imprecise, such a purpose is not indecipherable.” Given the valley’s aridity and that it was intended to be a permanent home for the tribe, water rights must have been part of the federal government’s plan.

There is no federal case law that explicitly says the reserved right extends to groundwater, but this extension of the right is logical given how important groundwater is in many areas of the country. The fact that the tribe has not pumped its own groundwater historically does not eliminate its reserved right, Tallman wrote, and the question of whether water is essential to sustaining the reservation does not speak to the reservation’s purpose when it was created.

“(W)hile we express no opinion on how much water falls within the scope of the Tribe’s federal groundwater right, there can be no question that water in some amount was necessarily reserved to support the reservation created,” Tallman wrote.

The tribe was represented by Catherine Munson with Kilpatrick Townsend & Stockton in Washington, D.C.

“The Ninth Circuit’s decision today validates the Tribe’s work to protect and preserve the Coachella Valley’s most important natural resource,” Tribal Chairman Jeff L. Grubbe said in a statement. “This is another critical step toward how water will be responsibly managed in the future.”

Roderick Walston from Best Best & Krieger in Walnut Creek, represented the Desert Water Agency. He said the effect of the decision is that it automatically creates a reserved right to all pertinent water, regardless of circumstances or the tribe’s specific needs. He said his clients are considering how next to proceed.

Steven Abbott from Redwine and Sherrill in Riverside represented the Coachella Water District. He could not be reached for comment Tuesday. The U.S. Department of Justice did not return a request for comment.

Tallman was joined on the panel by Ninth Circuit Judge Morgan Christen and U.S. District Judge Matthew Kennelly, from the Northern District of Illinois, sitting by designation.