June 01, 2017

Ninth Circuit Applies Winters Doctrine to Groundwater

Jessica Duggan

The Agua Caliente Band of Cahuila Indians’ reservation overlies the Coachella Valley groundwater basin in Southern California. Groundwater is perhaps the most critical water resource for California’s water future. In an arid climate, surface waters often are available only seasonally and unreliably. Because of this, many big water users have opted to simply pump groundwater, and have been doing so with little or no oversight for decades. As a result, water levels in the aquifer underlying the tribe’s reservation have been in constant decline. Since the 1980s, the amount of water extracted from the underground basin has exceeded the recharge rate, despite major efforts to recharge the basin with water delivered from the California Water Project and the Colorado River. Because of this, the Agua Caliente Band of Cahuila Indians was concerned about the continued viability of the Coachella Valley groundwater basin.

In May 2013, amid one of the worst droughts in California history, the tribe filed a lawsuit against the Coachella Valley Water District and Desert Water Agency in the U.S. District Court for the Central District of California, seeking declaratory and injunctive relief protecting its right to access groundwater. The lawsuit asked the court to declare the existence of the tribe’s water rights as the senior rights in the Coachella Valley under federal law, and to quantify these rights. “Groundwater underlying the reservation is in limited supply and is needed to satisfy the present and future needs of the tribe and its members,” the tribe said in its complaint. Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., Case No. EDCV 13–883–JGB (C.D. Cal. May 14, 2013). “The defendants’ withdrawal and use of the groundwater . . . adversely injures and affects the ability of the tribe and its members to exercise its federal reserved right to the withdrawal, use and enjoyment of that groundwater.” Id.

In the course of litigation, the parties stipulated to divide the litigation into three phases. The first phase addressed the question of whether the tribe had a reserved right or an aboriginal right to the groundwater. The parties filed cross motions for summary judgment addressing these issues.

The tribe’s argument was largely based on the doctrine established in Winters v. United States, 207 U.S. 564, 575–78 (1908), in which the U.S. Supreme Court held that when the federal government withdraws land from the public domain (for instance, for an Indian reservation), it also implicitly reserves water rights necessary for the land to serve its intended purpose. Despite the long-standing recognition that Indian reservations, as well as other reserved lands, require access to water, the Winters doctrine only applies in certain situations: it only reserves water to the extent it is necessary to accomplish the purpose of the reservation. These “reserved rights” vest on the date Congress creates the reservation at issue, and because many reservations in the West were created so long ago, reserved rights tend to be very senior and thus very valuable to the tribe. The Agua Caliente reservation, for example, was established formally by two executive orders in 1876 and 1877. In the world of water law, where the allocation of water rights rests upon the fundamental maxim “first in time, first in right,” the tribe’s senior status is critical to their claim. While reserved rights have been applied to surface water, no federal appellate court had decided whether they also apply to groundwater until this case.

On March 27, 2015, U.S. District Judge Jesus G. Bernal issued his ruling on the parties’ summary judgment motions. The court ruled largely in the tribe’s favor, holding that the Agua Caliente Band of Cahuilla Indians has a reserved right to water, and groundwater is a water source available to fulfill that right. The court denied the tribe’s motion for summary judgment on its claim for aboriginal title to groundwater, a type of property right that derives from territorial occupancy of land.

The Coachella Valley Water District and Desert Water Agency filed a petition with the U.S. Court of Appeals for the Ninth Circuit for interlocutory review of the portion of the district court’s order addressing the tribe’s reserved right to groundwater. Although the tribe opposed that petition, the Ninth Circuit granted the water districts’ petition for interlocutory review on June 10, 2015. The water districts also sought to stay proceedings before the district court while the Ninth Circuit reviewed the first phase of the litigation. In Pasadena on October 18, 2016, a three-judge panel of the Ninth Circuit heard oral arguments addressing the issue of whether the tribe has a reserved right in groundwater.

On March 7, 2017, in an opinion by Judge Richard Tallman and unanimous affirmance from the three-judge panel, the Ninth Circuit answered that question in the affirmative, holding that the Winters doctrine extends to groundwater. The opinion in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262, 1270 (9th Cir. 2017), affirmed the district court’s rulings. Relying on both U.S. Supreme Court precedents and the history and reality of the need for water in the West, the court held that, similar to surface water, groundwater can be appurtenant to real property. The court went on to recognize that “many locations throughout the western United States rely on groundwater as their only viable water source” including in Coachella Valley where surface water supplies are scarce. 849 F.3d at 1271. Based on this the Ninth Circuit ruled “we can discern no reason to cabin the Winters doctrine to surface water.” Id.

The Ninth Circuit also rejected the water districts’ argument that, under California law, an overlying property owner’s right to groundwater is not absolute, but rather a “correlative” right, obligating the property owner to share groundwater in a reasonable manner with neighboring property owners. The Ninth Circuit rejected this argument on the basis that the federal “reserved rights” doctrine preempts California’s conflicting state law, and thus the California “correlative right” law was inapplicable. Id. at 1272. The Ninth Circuit also rejected the water districts’ arguments that the Agua Caliente Band of Cahuila Indians has no history of drilling for groundwater or securing alternative water supplies, an argument put forth by defendants in an effort to demonstrate that the tribe did not have a need for this federal reserved right to the groundwater. In addition, the court broadly construed the original purposes for the creation of the reservation.

Leaders of the water districts have said that they will appeal the case to the U.S. Supreme Court for a writ of certiorari to settle the question of whether the tribe has a federally established right to groundwater beneath the Agua Caliente Band of Cahuilla Indians’ reservation. The water agencies announced just a few weeks after the Ninth Circuit’s ruling that they plan to submit their petition for review to the Supreme Court in June or July 2017. The Supreme Court is expected to decide in the fall of 2017 whether to accept the case or decline to review it.

The case is likely to set an important precedent for tribes across the country. While the Ninth Circuit’s ruling will perhaps provide certainty and security to Native American tribes that rely on groundwater, the opinion leaves significant unresolved questions about how the doctrine will play out on the ground (or under the ground), which likely will be the subject of future litigation.

Jessica Duggan

Ms. Duggan is a senior managing associate at Dentons US LLP in San Francisco, California, in the firm’s Environmental and Natural Resources Practice Group and the Native American Law and Policy Practice Groups. She is an enrolled tribal member of the United Houma Nation and a member of the editorial board of Natural Resources & Environment. She may be reached at jessica.duggan@dentons.com.