1. 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)

2. The Realm of Federal Reserved Water Rights

3. 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)

4. 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)

5. 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”

6. 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

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

8. 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

10. 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

11. 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”

12. 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

13. 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.