Ian James

The Desert Sun

A federal appeals court sided with the Agua Caliente Band of Cahuilla Indians on Tuesday in a landmark water case, upholding a ruling that the tribe has federally established rights to groundwater in the Coachella Valley.

The decision by the Ninth Circuit Court of Appeals is likely to set an important precedent for tribes across the country.

The three-judge panel upheld a 2015 ruling in which a judge backed the Agua Caliente tribe’s claim that it holds a federally granted “reserved right” to groundwater beneath its reservation in Palm Springs and surrounding areas.

The appeals court said in its opinion that the creation of the Agua Caliente Reservation in the 1870s "carried with it an implied right to use water from the Coachella Valley aquifer.”

The decision is a setback for the Coachella Valley Water District and the Desert Water Agency, which had argued the tribe holds the same right to use groundwater under state law as all other landowners in California. The water districts could appeal the decision to the U.S. Supreme Court.

Agua Caliente Tribal Chairman Jeff Grubbe said the decision validates the tribe’s efforts “to protect and preserve the Coachella Valley’s most important natural resource.”

The decision is the first by a federal appeals court to directly address the question of whether water rights reserved by the federal government apply to groundwater as well as surface water.

“It’s a powerful decision. It will be studied by all of the many tribes that still have unresolved water rights issues, and I suspect it will be put to use,” said Sarah Krakoff, a professor at the University of Colorado Law School. “It could open the door to more litigation, and then for existing disputes – whether they’re in litigation or settlement – it will change the contours.”

READ MORE: Court says federal rule doesn't stop agency from collecting fees on Indian land

The Agua Caliente tribe sued the two water agencies in May 2013, seeking to assert rights to a portion of the area’s groundwater and to gain greater influence in decisions about how the aquifer is managed. The tribe has accused the agencies of imperiling the desert aquifer by allowing its levels to decline over the years and by using saltier, less pure Colorado River water to offset the amounts drawn out.

The water agencies have defended their efforts to manage the supply of groundwater and have insisted that water from the Colorado River meets all drinking water standards.

The agencies said they filed the appeal seeking to protect the general public’s right to water, and are now considering whether to petition for the Supreme Court to take up the case.

The water districts, which have 90 days to decide on their next steps, also have other options. They could seek a rehearing by the three-judge panel or take their appeal to the entire Ninth Circuit Court of Appeals.

“We’re going to keep working toward the best outcome for the public,” Mark Krause, DWA’s general manager, said in a statement. “The groundwater basin should remain a shared public resource.”

READ MORE: Tribe and water districts presented arguments in landmark water case to appeals court

Now that the agencies have lost their appeal, the case is set to return to District Court for subsequent phases of the trial to determine how much groundwater the tribe is entitled to.

Jim Barrett, general manager of the Coachella Valley Water District, said the case "could ultimately determine control over the region’s groundwater.”

With the court's decision, the Coachella Valley could eventually join a list of 23 other California groundwater basins that have been adjudicated by courts. In such cases, a judge typically determines how much groundwater may be pumped from an aquifer by various parties.

The decision also left various questions unresolved, including how the tribe's federally granted "reserved rights" will be prioritized as California moves toward implementing the 2014 Sustainable Groundwater Management Act, under which local agencies are tasked with developing long-term plans for sustainable water use.

Grubbe has said the case is about securing a “seat at the table” for the Agua Caliente to have a voice in water management decisions. He said the court's decision is "another critical step toward how water will be responsibly managed in the future."

In its lawsuit, the tribe criticized longstanding policies that have led to heavy pumping from the desert aquifer. Groundwater levels have declined over the years in much of the Coachella Valley as water has been used for expanding subdivisions, golf courses, resorts and farms.

The water agencies have used imported water from the Colorado River to partially offset those declines, and the water table has risen around groundwater recharge ponds in Palm Springs and La Quinta. The biggest declines in the aquifer’s levels – in some areas 90-100 feet or more since the 1950s – have occurred away from those ponds in the middle of the valley.

The two water agencies say they have viable long-term plans to combat groundwater overdraft. They've questioned the tribe’s reasons for suing, its financial motivations, and how it intends to use the water.

"They could sell water back to the public, or it could use the water for any purpose," Desert Water Agency said in its statement. "This could drive up rates for local residents and businesses."

The Agua Caliente tribe, which has more than 400 members, owns the Spa Resort Casino in Palm Springs and the Agua Caliente Casino Resort Spa in Rancho Mirage, and has plans for new housing subdivisions on tribal land.

The reservation spreads across more than 31,000 acres in a checkerboard pattern that includes parts of Palm Springs, Cathedral City, Rancho Mirage and the Santa Rosa and San Jacinto mountains.

READ MORE: The Agua Caliente Checkerboard

The U.S. Department of Justice has signed on as a party to the lawsuit in support of the tribe.

Other leaders of Native American tribes across the West have been closely watching the case. A list of tribes joined the case last year, backing the Agua Caliente in a “friend-of-the-court” brief. Those tribes include the Morongo Band of Mission Indians in California and the Spokane Tribe of Indians in Washington, as well as organizations such as the California Association of Tribal Governments.

In arguments laid out in court documents, the two sides have cited details of the reservation's establishment in 1876 through an executive order by President Ulysses S. Grant, as well as a subsequent order by President Rutherford B. Hayes in 1877 setting aside additional lands for the tribe. Both side also referred to a 1908 Supreme Court decision, Winters v. United States, that affirmed that Indian tribes are entitled to sufficient water supplies for their reservations.

The three-judge appeals court panel – comprised of Circuit Judges Richard Tallman and Morgan Christen, and District Judge Matthew Kennelly – said in the opinion that "the Winters doctrine does not distinguish between surface water and groundwater."

They also ruled that federally reserved rights, such as those held by the tribe, preempt state water rights. The judges said "the fact that the Tribe did not historically access groundwater did not destroy its right to groundwater now."

Now that the court has found the tribe holds such rights, the next questions to settle will revolve around what those rights mean, how much water is involved and how those federal rights relate to the established state water rights system, said Leon Szeptycki, executive director of Stanford University’s Water in the West program. He said one key question will be whether the decision "will entitle them to more water than they would be entitled to under traditional California property rights rules with respect to groundwater."

Surface water rights in California are based on a "first-in-time, first-in-right" allocation system, but with groundwater, there is no such seniority system and the water is simply pumped from the ground by landowners. The state's 2014 groundwater law lays out a process for local agencies to move toward sustainable management of their groundwater basins.

Szeptycki said it's not yet clear whether the decision will give the tribe a sort of "supercharged" water right, or whether the tribe will now be at the front of the line among water users under the Sustainable Groundwater Management Act, or SGMA.

"You can’t tell from the decision exactly what the relationship between this federal reserved right and the state legal regime will be, especially since the state legal regime is sort of complicated and muddy to begin with, and then it’s changing rapidly because of SGMA," Szeptycki said. "It’s clear that this federal right has some sort of superior status, but it’s not at all clear what that means in terms of current groundwater rights holders and the current groundwater use patterns."

The new groundwater law includes the most stringent requirements for areas deemed to be in “critical overdraft.” In the Coachella Valley, state regulators have listed three aquifer sub-basins – Indio, Mission Creek and San Gorgonio Pass – as being “medium” priority. A fourth groundwater sub-basin, Desert Hot Springs, is classified by the state as being a lower priority.

Several local agencies, among them the Coachella Valley Water District and Desert Water Agency, have filed notices with the state to begin the process of becoming the designated “groundwater sustainability agencies” in areas where they supply water. It's unclear what role the tribe may play in that process.

Many lawyers and advocates for tribes had long assumed and hoped that the courts would rule the federally reserved water rights doctrine applied to groundwater as well as surface water, Krakoff said. The precedent-setting decision, she said, will now give tribes significantly more leverage in water rights litigation.

Krakoff said the decision doesn’t appear to have any bearing on other types of water-related disputes, such as the conflict over the Dakota Access Pipeline centering on tribal leaders’ concerns about the potential pollution of surface water.

In the Coachella Valley, Krakoff said she expects the decision will “provide more clarity for everyone about who has rights to water and how it should be allocated.”

“The tribe has said repeatedly throughout the case, what they want is a seat at the table. They just don’t want to be left out of these decisions,” Krakoff said. “I suspect that there is some concern and fear of a water grab or something to that effect. I very much doubt that that will happen, because the tribe – like every other actor in the valley – wants a sustainable future for everybody and they recognize that water’s very scarce and so they want to make decisions about allocation that are fair and rational.”

Some officials of the water agencies have suggested that if the Agua Caliente tribe prevails, it could use the public drinking water supply for any purpose it chooses, such as opening a bottled water plant. Grubbe has denied those accusations, saying the lawsuit is aimed at safeguarding the water supply for all residents.

Grubbe argues the water districts have significantly degraded the quality of the groundwater by allowing Colorado River water, which has higher levels of dissolved salts and minerals, to seep down to the aquifer. He has suggested they should instead treat the imported water before allowing it to flow into the underground drinking water supply.

Grubbe said in a statement Tuesday that the agencies' current practices "are not acceptable for long-term health and viability of the Coachella Valley water supply."

He said the tribe's leaders raised their concerns for years "but were repeatedly ignored."

The lawsuit isn't the only case involving a water district and the tribe's interests.

In a separate opinion issued Tuesday, the appeals court also rejected the Desert Water Agency's challenge of a federal regulation that governs the leasing of Indian land. The water agency brought the lawsuit in 2013, fearing that language in the federal regulation could prevent it from collecting fees in areas where Agua Caliente Reservation land is leased to homeowners and businesses.

The court ruled that the language change did not prevent DWA from charging customers on leased Indian land without interference, though it stopped short of affirming that DWA has a right to collect those payments.

Desert Sun reporter Rosalie Murphy contributed to this article.

Ian James writes about water issues for The Desert Sun. Email: ian.james@desertsun.com Twitter: @TDSIanJames