Barton “Buzz” Thompson Professor, Stanford Law School Federal Rights to Groundwater: Brief Background on the Agua Caliente Litigation Barton “Buzz” Thompson Professor, Stanford Law School Of Counsel, O’Melveny & Myers (counsel to Coachella Valley Water District)

The Realm of Federal Reserved Water Rights

Winters v. United States, 207 U.S. 564 (1908) Setting Fort Belknap Indian Reservation in Northern Montana Dispute over waters of the Milk River State prior appropriators claimed superior water rights Holding Water was implicitly reserved at the time the reservation was created for use of the Native Americans (and thus prior to the state rights)

Arizona v. California 373 U.S. 546 (1963) Setting Lower Basin of the Colorado River Holdings Reserved rights apply to: Indian reservations whether created by treaty or executive order Other forms of federal reservations (e.g., national forests) U.S. could reserve water even after statehood Rights quantified based on “practicably irrigable acreage” (the “PIA” standard)

Cappaert v. United States, 426 U.S. 128 (1976) Setting Desert Hole National Monument One of the purposes of the monument was to protect the resident pup fish population Local groundwater pumping was lowering water in Desert Hole, threatening the pup fish Holdings Water in the pool was “surface water,” not groundwater (and the Court thus did not have decide whether Winters rights extend to groundwater) Doctrine “reserves only that amount of water necessary to fulfill the purpose of the reservation, no more”

United States v. New Mexico, 438 U.S. 696 (1978) Setting Gila National Forest U.S. claimed water for wildlife and recreational purposes in the Rio Mimbres River Holdings Each time Court has recognized a federal reserved right, it has “concluded that without the water the purposes of the reservation would be entirely defeated.” Court read purposes of national forests narrowly, not covering wildlife and recreation claims Court’s opinion was less receptive to federal reserved rights claims than previously

Coachella Valley, California The Agua Caliente Case Coachella Valley, California

Agua Caliente Band of Cahuilla Indians The Tribe’s reservation was stablished by executive orders in late 19th century 1876 & 1877 Because U.S. previously granted alternating squares of land to the railroad, the tribal reservation led to a checkerboard pattern of land ownership in the area (see next slide) Currently 440 members of the Tribe Reservation includes 31,396 acres On a combined basis, the Tribe and its members are the largest single land owner in Palm Springs

Coachella Valley Water District & Desert Water Agency Local agencies provide groundwater, recycled water, and imported water to local customers Delivers water for the developed portions of the Agua Caliente reservation Has never denied any water request by the Tribe Since 1972, the agencies have recharged approximately 3 maf of imported Colorado River water

Agua Caliente’s Complaint Declaration of Tribal Rights Implied federal reserved water rights Aboriginal rights Paramount ownership right to pore space in the groundwater basin Permanent Injunction Against: Any groundwater withdrawals in conflict with the Tribe’s water rights Alleged overdraft Recharge with Colorado River water Infringement of the “Tribe’s superior, prior and paramount ownership interest in sufficient pore space . . . underlying the Coachella Valley and the Tribe’s Reservation to store its Federally reserved right to groundwater for all present and future generations”

Trifurcation of the Issues Phase 1 (decided) Implied federal reserved rights District Court recognized Aboriginal rights District Court rejected Phase 2 (current) Whether reserved rights include a unique water quality element Ownership of pore space Standard for quantifying reserved rights Phase 3 All other factual issues

Ninth Circuit Phase 1 Decision 849 F.3d 1262 (9th Cir. 2017) Question in determining whether Tribe has reserved rights is “whether water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.” Implied federal reserved water rights do “not distinguish between surface water and groundwater.” Only questions are “the government’s intent” and the “location of the water in relation to the reservation created.” The “fact that the Tribe did not historically access groundwater does not destroy its right to groundwater now.” “[S]tate water rights are preempted by federal reserved rights.” Supreme Court denied cert on interlocutory review (138 S. Ct. 469 (2017) Court’s decision, however, does not prevent filing of a cert petition at the conclusion of the case.