On March 7, 2017, the Ninth Circuit Court of Appeals upheld the Agua Caliente Tribe’s claim that the creation of its reservation included Winters doctrine federally reserved water rights to groundwater. More than a century ago, the United States Supreme Court held in Winters v. United States, 207 U.S. 564 (1908)) that, when the federal government creates an Indian reservation, certain water rights are reserved by implication. The Agua Caliente case is the first federal appellate court that has found the Winters doctrine reservation of rights includes groundwater as well as surface water.
The Appeals Court’s decision comes in the Agua Caliente Tribe’s lawsuit against the local water agencies from which the Tribe purchases water. The Tribe sued to establish its Winters doctrine right to groundwater underlying reservation lands in the Coachella Valley; to prevent the districts from reducing the quality of that groundwater by recharging the aquifer with inferior quality water from the Colorado River; and to establish the quantity of water to which the Tribe is entitled. The District Court, pursuant to agreement of the parties, split the case into three phases, roughly: (i) whether the Tribe has Winters rights; (ii) the ownership of the “pore space” in the groundwater aquifer and the right to maintain the water’s quality; (iii) and the quantity of reserved rights. This decision addresses only the first phase.
The Winters doctrine states that the when the federal government withdraws land for specific purposes (which Winters found includes creation of Indian reservations), the withdrawal necessarily and impliedly carries with it a reservation of water rights necessary to fulfill the purposes for which the reservation was established. The water reserved is limited to the amount of water necessary to fulfill the primary purpose of the reservation, and to water that is “appurtenant” or adjacent to the land reserved.
In this case, the Ninth Circuit first addressed whether it needed to determine as a threshold matter if there was enough water then available from other sources to meet the “primary purpose” of the reservation. The water agencies argued that if other sources of water could meet the “primary” purpose of the reservation, then no other rights were impliedly reserved under Winters. The Court rejected that idea, and stated the initial question is much simpler: whether water was envisioned as necessary for the reservation’s purposes at the time the reservation was created.
The Court answered that question in the affirmative. It looked to executive orders that created Agua Caliente’s reservation, finding that they established the reservation “for the permanent use and occupancy” of the Tribe and for “Indian purposes.” Though the Court stated that specific purposes of reservations are “often unarticulated,” the general purpose, to “provide a home for the Indians, is a broad one and must be liberally construed.” The Court stated that water is necessary to establish permanent homes, especially in the arid climate of the Coachella Valley, and, accordingly, the U.S. reserved water rights when it created the Agua Caliente reservation.
The Court then considered whether groundwater was “appurtenant” to the reservation, in order to fulfill the second prong of the Winters doctrine test. The Court stated that the rights need only be attached to the reservation, and that having land overlying the groundwater aquifer was sufficient to find that the groundwater was “appurtenant.” The Court noted that surface water only flowed a few months a year on the Tribe’s lands in Southern California. Building on its finding that water must come with establishment of tribal homelands, it stated that “survival is conditioned on access to water—and a reservation without an adequate source of surface water must be able to access groundwater[,]” otherwise the purposes of the reservation (to sustain life) would be defeated.
The Court rejected the following three arguments advanced by the water agencies that the Tribe’s reserved rights were diminished: (i) the Tribe enjoyed the same rights to groundwater as other overlying landowners under California law; (ii) the Tribe had not drilled for groundwater on their own lands; and (iii) the Tribe had been apportioned surface water in a 1938 adjudication of the Whitewater River. The Court found that none of these factors affected the federal rights, as those rights are supreme to and preempt state law, are not subject to loss through non-use, were envisioned as necessary to sustain life at the time the reservation was created, and were unaffected by state water entitlements.
Finally, the Court noted that, while the Winters doctrine did not distinguish between surface water and groundwater, it is an open question regarding how much water would be reserved for the Tribe. That question will be handled in the third phase of the trial, and the Court noted that the water districts are likely to argue that the Tribe must have some demonstrated need for the groundwater. The districts will likely make those arguments, but this decision contains helpful language that identifies the purposes of the reservation broadly in terms of creation of a tribal homeland.
Unless the water agencies decide to appeal the Ninth Circuit’s decision to an en banc panel of the Circuit or the U.S. Supreme Court, the case now returns to the Central District of California for the second phase of the trial.
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