On March 20, 2015, the U.S. District Court Judge Jesus G. Bernal issued an order in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et al. The case came about when the Agua Caliente Band of Cahuilla Indians (“Tribe”) filed a lawsuit against Coachella Valley Water District (“CVWD”) and Desert Water Agency (“DWA”) seeking a declaratory and injunctive relief that would allow the Tribe to meet its present and future water needs and protect its reserved water rights from overdraft and water quality issues.
The Tribe claims that its federal reserved water rights under the Winters doctrine extends to groundwater and that it has an aboriginal right of occupancy, which would deem its water rights to be the most senior in the valley. The tribe further claims that the groundwater is in overdraft and that CVWD’s attempt to mitigate the overdraft conditions by recharging raw Colorado River water is degrading the water quality.
The parties stipulated to breaking the case into three phases. This order addressed Phase I, which covered whether the Tribe’s federal reserved rights under the Winters doctrine applies to groundwater and whether the Tribe has aboriginal rights to groundwater. Judge Bernal concluded that “the Tribe’s federal reserved water right may include groundwater, but the Tribe’s aboriginal right of occupancy was extinguished long ago, so the Tribe has no derivative right to groundwater on that basis.”
In making his decision on the first point—that the Tribe may have federally reserved rights to groundwater—Judge Bernal relied on previous cases which establish the law of federal reserved water rights and interpret Winters v. United States. The law of federal reserved water rights holds that when the federal government reserves land for a federal purpose, it also reserves sufficient appurtenant water to meet that purpose. Case law has not differentiated between groundwater and surface water, but rather hinged on questions of whether the water was meeting the purposes of the reservation, whether the water was appurtenant to the reserved land, and to what extent the purpose of use could change over time.
Judge Bernal also rejected the two primary arguments that CVWD and DWA offered in their defense. Against their argument that principles of federalism and comity instruct against applying Winters to groundwater, he held that (1) the Winters doctrine does not include “a ‘balancing test’ of competing interests,” and (2) federal water rights are supreme to state water rights. Against their argument that the Tribe can function adequately with their current water allotment, he held that case law specifies that “a tribal reservation’s reason for being is not etched in stone, but shifts to meet future needs,” and that any further examination of that issue is not a Phase I question.
Subsequent phases will address additional questions. Phase II will address whether the Tribe has the right to certain “pore space” beneath the reservation and whether a right to a certain quality of groundwater is encompassed by a right to a quantity of groundwater. Phase II will also address some of CVWD and DWA’s equitable defenses. Phase III will seek to quantify the Tribe’s rights to groundwater and pore space and develop injunctive relief. Each subsequent phase is contingent upon the outcome of the previous phase. As such, the court has certified the case for interlocutory appeal—meaning that the decision can be reviewed by an appellate court before decisions are rendered in Phases II and III should the parties seek such review.
Written by Marta L. Weismann