Friday, March 10, 2017

Implications of the Ninth Circuit’s Agua Caliente Decision

On Tuesday, the Ninth Circuit Court of Appeals released an important decision in Agua Caliente Band of Cahuilla Indians v. United States.  The decision addressed whether the Agua Caliente Tribe, which has a reservation in southern California’s Coachella Valley, could assert a federal reserved right to groundwater.  The Ninth Circuit held that the tribe could assert such rights.

Before I explain some of the potential implications of the case, some background on reserved rights may be helpful.  In general, state law defines water rights, even where the waters in question are found on federal land.  But in Winters v. United States, 207 U.S. 564 (1908), the United States Supreme Court held that when the federal government reserves federal land for a specific use, it also reserves sufficient water rights to accomplish the purpose of the reservation.  Reserved rights doctrine applies to federal reservations in all their forms, but many of the most prominent reserved rights cases have involved Indian reservations.

National_AtlasThe resulting rights can be valuable.  Federal reserved rights date to the time of the reservation, which means they tend to be old.  And the age of a water right can be crucially important, particularly in the American West, where older rights theoretically trump newer ones.  In practice, reserved rights function as the most senior rights in western water allocation systems.  That creates an interesting paradox: Native American tribes, which historically were on the short end (to put it mildly) of most western resource allocation decisions, can hold some of the West’s most valuable water rights.

Until this past week, the tribes had successfully asserted reserved rights only to surface water.  But for the Agua Caliente Tribe, that wasn’t a likely option; their homeland falls within one of the driest deserts in the United States, and surface water is largely absent.  If the tribe was to assert a meaningful reserved right, that right had to be for groundwater.  And in Tuesday’s decision, the Ninth Circuit held that such a reserved groundwater right was possible.

So how important is the case?  It seems safe to predict that other tribes now will assert similar claims.  But there reasons both for and against expecting a more widespread impact.  I’ll start with the reasons why we might expect this case to be consequential. 

First, and at the risk of stating the obvious, the case will support other tribes’ claims to a new kind of water source.  In an area like the Coachella Valley, where surface water is scarce and groundwater rights are contested, the ability to assert old rights to that additional source can give a tribe a trump card in water disputes with its neighbors.  In most of the United States, the climate is not as extreme as it is in the Coachella Valley, and surface water is more abundant.  But there still are many other places where groundwater provides the primary water source.  For that reason alone, the case will likely have ripple effects across the West, and perhaps in eastern states as well.

Additionally, a right to groundwater is sometimes valuable because groundwater is more physically accessible that surface water.  Surface water can be hard to exploit, even if one theoretically has a legal right to that water, because exploitation often requires constructing and operating canals, pipes, intake pumps, and other infrastructure.  For a tribe with very little money to spend (and no offers from the Bureau of Reclamation to subsidize construction, as routinely happened with the tribes’ non-native neighbors), building that infrastructure could be prohibitively difficult.  Because of that difficulty, many tribes have had limited ability to exploit their reserved rights.  Accessing groundwater, by contrast, can be much easier.  A landowner just needs to sink a well and install a pump and a sprinkler system.  That still costs money, but the infrastructure costs are often much lower.

On the other hand, there are reasons to anticipate less impact.  One is that many tribes already have state-law groundwater rights, which they hold by virtue of current landownership rather than past federal reservations.  Reserved groundwater rights could give tribes older priority dates, but in many places, those rights would not conjure legal groundwater access where it had not existed before.  Second, any additional water that some tribes gain through access to groundwater might be lost when their surface water reserved rights are recalculated.  To measure the aggregate scale of tribal reserved rights, courts typically use a practically-irrigable-acreage standard, which—in theory—looks at tribes’ ability to use water, not at water availability or at competing demands.  In other words, measures of demand, not supply, theoretically determine the scope of reserved rights, and the emergence of a new supply therefore might not impact the overall scope of the right.  In practice, things could play out differently; some legal uncertainty hovers over Winters doctrine and Native American claims (for an interesting and still-relevant article, see Andew C. Mergen & Sylvia F. Liu, A Misplaced Sensitivity: The Draft Opinions in Wyoming v. United States, 68 U. Colo. L. Rev. 683 (1997).  But it is at least plausible that a tribe with recognized reserved rights to surface water would see little benefit in also asserting a groundwater claim.

The Agua Caliente litigation is not over, and in subsequent phases (or settlement negotiations), and in cases elsewhere, litigants are likely to address many of these remaining questions.

- Dave Owen

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