Ian James

The Desert Sun

Lawyers for the Coachella Valley’s largest water districts and the Agua Caliente Band of Cahuilla Indians presented their arguments to a federal appeals court in a water rights case that could set a precedent for tribes across the country.

The case hinges on the question of whether the Agua Caliente tribe holds a federally granted “reserved right” to groundwater beneath its reservation in Palm Springs and surrounding areas.

Lawyers for the Coachella Valley Water District and the Desert Water Agency urged the three-judge panel of the Ninth Circuit Court of Appeals to overturn a 2015 decision in which a judge sided with the tribe. If the water districts lose their appeal, a court would eventually determine how much groundwater the tribe is entitled to, and Agua Caliente leaders would gain greater influence in decisions about how the desert aquifer is managed.

Attorney Roderick Walston laid out the water agencies’ case during the hearing in Pasadena on Tuesday, citing a 1978 U.S. Supreme Court ruling relating to the water rights of the Gila National Forest in New Mexico. He said the court established important limitations in that case and decided that such water rights only exist “if it is necessary to satisfy the primary purpose of the reservation.”

In their appeal, lawyers for the water districts pointed out the tribe does not pump groundwater but rather buys water from the agencies. They said the tribe wasn’t using groundwater when the reservation was created, and they argued the tribe holds the same right to use groundwater under state law as all other landowners in California.

The judges raised skeptical questions during Walston’s comments. Circuit Judge Richard Tallman told him: “The problem I’m having with your position is, this is very arid desert land that we’re talking about, and it’s worthless without water.”

“And surface water is not available for more than perhaps a few weeks in the year, so the only water that everybody relies on is the underground water, the aquifer,” Tallman said. “And so the question is, do they have a right inherent in the creation of the reservation to water from below the surface?”

After hearing more of Walston’s argument, Tallman interrupted: “Forget about surface water because there’s not enough of it to get them through a year or maybe a few weeks – at best in a rainy winter, which doesn’t happen very often in that part of California.”

READ MORE: Agua Caliente tribe to keep up water fight, leader says

Lawyers for the Agua Caliente and the federal government urged the court to uphold the lower court’s ruling, arguing that California’s water law can’t trump the tribe’s rights under federal law.

The debate circled around questions of what the federal government intended when it established the Agua Caliente reservation in 1876, and on conflicting interpretations of a landmark 1908 Supreme Court decision and subsequent rulings.

In the 1908 case, Winters v. United States, the court ruled Indian tribes are entitled to sufficient water supplies for their reservations. But the Supreme Court has never specified whether those so-called “Winters rights” apply to groundwater in addition to surface water.

After listening to Walston, District Judge Matthew Kennelly raised several questions.

“OK, why would one distinguish at that level between surface water and groundwater? I don’t get it. It’s all water,” Kennelly said. “Some of it’s above the ground, some of it’s below the ground. It all has two hydrogen molecules and one oxygen molecule. Why would, what’s the principled reason for determining where the right is, to distinguish between what’s on top of the ground and what’s below the ground?”

Walston argued that the 1908 decision helped ensure surface water for reservations at a time when non-Indians were acquiring rights to divert water from rivers and streams across the West.

“But the priority rule that applies to surface water,” Walston said, “does not apply to groundwater."

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The appeals court will be the highest federal court to directly address the question of whether water rights reserved by the federal government apply to groundwater as well as surface water. In debating the issue, the lawyers touched on other decades-old water cases relating to national forests and endangered fish.

Circuit Judge Morgan Christen called the Agua Caliente lawsuit “a big deal case.”

“This is the first time we would have talked really directly about groundwater,” she said. “This is a very significant issue.”

The Agua Caliente tribe sued the two water agencies in May 2013, seeking to assert rights to a portion of the area’s groundwater. The tribe accuses 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 or exceeds all drinking water standards.

Agua Caliente Tribal Chairman Jeff Grubbe has said the case is about securing a “seat at the table” for the tribe to have a voice in water management decisions.

Groundwater levels have declined over the years in much of the Coachella Valley as water has been pumped from the aquifer 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 have questioned the tribe’s reasons for suing and its financial motivations. 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

Other Native American leaders across the West are closely watching the case. A list of tribes have joined the case, backing the Agua Caliente in a “friend-of-the-court” brief in February. Eleven law professors at schools ranging from the University of Washington to the University of California, San Francisco, have also signed on to support the lawsuit.

U.S. Justice Department attorney Elizabeth Ann Peterson told the judges that state law “can’t defeat a federal reserved water right.”

“When the United States reserved this land for a tribe,” Peterson said, “it reserved at the same time sufficient water for the long-term subsistence of this tribe on that land.”

She cited a 1976 Supreme Court ruling relating to the threat groundwater pumping posed for the endangered Devils Hole pupfish in Nevada. In that case, Cappaert v. United States, the Supreme Court backed federal reserved water rights for what was then a national monument.

The case involved the Cappaert family, who owned a ranch where groundwater pumping was drawing down the water level in the nearby desert cavern where the fish live.

Summing up the decision, Peterson said the Supreme Court ruled “that the United States can protect its water from subsequent diversion, whether the diversion is of surface or groundwater.”

Peterson drew a parallel with the tribe’s case.

“If that water is going to provide a necessary resource for the long-term use of the tribe, protection of that resource is a critical interest of the tribe,” Peterson said. “And here it’s being subjected to diversions by others that may threaten the long-term value of that right, or availability of that water, to the tribe.”

READ MORE: Water agencies appeal ruling in tribe’s lawsuit

Steven Abbott, an attorney for the water districts, defended the agencies’ efforts to address the problem of declines in groundwater levels.

“That’s why we’ve increased our supplies of imported water,” Abbott said. “We have a responsibility to manage this basin in the long term.”

He pointed out the Coachella Valley’s water management plan includes strategies for combating “overdraft” of the aquifer such as expanding the use of recycled water and Colorado River water for golf courses.

The court is expected to release a decision in several months. Then the case is to return to the district court for subsequent phases of the trial. The losing side in the appeal process, however, will be able to petition for a rehearing, either by the three-judge panel or by the full appeals court.

Desert Water Agency said in a statement that if the Agua Caliente tribe prevails, it “could gain court approval to control the region’s groundwater.”

Desert Water Agency General Manager Mark Krause said that would “threaten the reliability of our carefully managed groundwater resources and increase costs for Coachella Valley families and businesses.”

He said the case is about preserving the public’s right to an “affordable and reliable water supply.”

The water agency has warned that if the tribe wins, 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.

READ MORE: CVWD is applying for a new permit for its groundwater facility

State supreme courts in Wyoming and Arizona have previously ruled on similar cases and have reached different conclusions, said Barton “Buzz” Thompson, Jr., a Stanford University law professor and water expert who isn’t involved in the Agua Caliente case.

“This is a very important case on an issue which is still, surprisingly in some ways, unresolved,” Thompson said. “This potentially could be a case that could go all the way to the U.S. Supreme Court.”

Thompson said he thinks the tribe has the stronger legal argument.

“There is a recognition today, that more and more states have built into their law, that there is really no difference between surface water and groundwater," he said. "It is one hydrologic system.”

The Navajo Nation isn’t among the tribes formally supporting the Agua Caliente tribe in the case. But Stanley Pollack, head of the Navajo Department of Justice’s water rights unit, said he thinks the Agua Caliente tribe’s argument is well-founded.

“The fact that the states may treat surface water and groundwater differently should be of no significance when looking at what was reserved for the tribes,” Pollack said. “What was reserved for the tribes was the water necessary to create a permanent homeland. And if the water necessary for to create the permanent homeland is coming from groundwater, so be it.”

Ian James can be reached by email at ian.james@desertsun.com and on Twitter: @TDSIanJames

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