The U.S. Supreme Court has announced that it will not review the appellate court’s decision in the Agua Caliente Tribe’s lawsuit against Coachella Valley Water District (“CVWD”) and Desert Water Agency (“DWA”). By denying the petition for certiorari, the Supreme Court leaves in place the decision of the U.S. Court of Appeals for the Ninth Circuit.
The Ninth Circuit’s decision addressed three questions: whether there was an intention to reserve water when the United States created the Tribe’s reservation, whether the reserved rights doctrine includes groundwater, and whether it matters that the Tribe has state water rights and has not drilled for groundwater. The Ninth Circuit ruled in favor of the Tribe on all three points, which means that the Tribe’s claims to water supersede all other uses in the basin. (For more information on the Ninth Circuit’s decision, see “10 States File Amicus Brief in Agua Caliente Groundwater Lawsuit,” JOW Summer 2017).
“We are disappointed in the decision because we believe the water in this valley is a shared resources that belongs to everyone,” said CVWD Board president John Powell, Jr. “The Tribe has always had access to as much water as they requested, but now they have secured a water right that is superior to every other resident and business in the Coachella Valley.”
The water agencies believe that a full adjudication of the groundwater to apportion water among the Agua Caliente Tribe and other users in the basin is likely and that rates will increase as a result.
“This case could completely change water management in our area, said DWA Board President Jim Cioffi. “We will continue to protect the interests of the community through this lawsuit and any efforts to divvy up local groundwater rights.”
The case began in May 2013 when the tribe filed a lawsuit against CVWD and DWA arguing that its federal reserved water rights under the Winters doctrine extends to groundwater. The Winters doctrine applies the concept of federal reserved water rights to Indian reservations—so when the federal government reserved the land for the tribe, it also reserved sufficient water rights to meet the purpose of that land. The tribe also argued that it has an aboriginal right of occupancy, which would deem its water rights to be the most senior in the valley, and claimed that CVWD has been impairing the quality of the groundwater in the basin by recharging raw Colorado River water in an attempt to mitigate overdraft conditions. The parties stipulated to breaking the case into three phases to address three different substantive issues. Phase I addresses the question of whether federal reservation of water rights extends to groundwater and whether the tribe has an aboriginal right of occupancy. Phase II will address whether the tribe owns “pore space” in the groundwater basin underneath reservation lands and whether a right to a quantity of groundwater encompasses a right to a certain quality of groundwater. Phase III will attempt to quantify any identified groundwater rights.
U.S. District Court Judge Jesus G. Bernal issued an order in Phase 1 in March 2015 concluding that the tribe’s federal reserved water right may extend to groundwater, but also stated that the aboriginal right of occupancy had been long extinguished. In February 2016, Judge Bernal issued a summary judgement rejecting the agencies’ defenses against the tribe’s request for a declaration of federally reserved water rights. CVWD and DWA appealed the district court decision. (For more on the March 2015 court order, see “U.S. District Court Issues Order in Phase I of Agua Caliente Case,” JOW May 2015. For more on the February 2016 summary judgement, see “U.S. District Court Judge Issues Summary Judgement in Agua Caliente Groundwater Suit,” JOW March 2016).
Written by Marta L. Weismann