Category Archives: Indian Water Settlement

9th Cir. to decide tribal rights to groundwater

9th Cir. to decide tribal rights to groundwater

As the U.S. Supreme Court pointed out some forty years ago in its opinion in Colorado River Water Conservation Dist. v. United States, “It is probable that no problem of the Southwest section of the Nation is more critical than that of scarcity of water.”  The Supreme Court’s words still ring true today, as evidenced by the legal battle between the Agua Caliente Band of Cahuilla Indians and the Coachella Valley Water District over whether the tribe’s federally reserved water rights extend to groundwater.  The case is now set to be decided by the Ninth Circuit Court of Appeals following a California district court’s decision that the Agua Caliente Indian tribe had a reserved right in groundwater underlying the tribe’s reservation.

Agua Caliente Sues Water District and Others in 2013 Over Groundwater Rights

In May 2013, the Agua Caliente tribe filed a complaint in federal court against the Coachella Valley Water District and several others seeking to have the court declare that the tribe has a federally reserved right to groundwater underlying the Coachella Valley, and to further enjoin the defendants from overdrafting the groundwater to the injury of the tribe.  In their complaint, the Agua Caliente tribe claims that they have lived in the Coachella Valley since before California was admitted to the Union in 1850.  The tribe sets forth that they have continually used both surface water and groundwater resources for “cultural, domestic and agricultural subsistence purposes,” including “stock watering and agricultural irrigation.”

Agua Caliente Says Their Water Rights are Senior to Those of the Defendants

Furthermore, the tribe claim that the “establishment of the Reservation pursuant to federal law impliedly reserved to the Tribe and its members the right to surface water and groundwater sufficient to accomplish the purposes of the reservation, including establishing a homeland for the Tribe and its members.”  More specifically, the tribe claims their reserved rights “are the most senior” in the region, and, as a result, the tribe may prevent the defendants from adversely impacting the quantity and quality of their water.

Agua Caliente Tribe Claims of “Overdraft”

Beyond their claims of seniority, the Agua Caliente tribe alleges that the groundwater underlying the Coachella Valley is in a continual state of “overdraft,” meaning that the water flowing from the underground aquifer exceeds the water flowing into the aquifer.  The defendants claim that they try to recharge the valley’s groundwater by importing water from the Colorado River.  However, the tribe claims that water from the Colorado River is of inferior quality.

Lastly, the tribe alleges in its complaint that the “Tribe and its members have established a homeland in the Coachella valley, including housing, schools, government offices, and cultural and commercial enterprises,” for which the Tribe relies upon its reserved groundwater resources.”  Accordingly, the tribe says it seeks relief in order to “satisfy the present and future needs of the Tribe and its members” and to protect the tribe’s reserved water rights from overdraft and degradation.

Parties Agree to Trifurcate Case

During the litigation of the case, the parties agreed to trifurcate the case into three phases.  Phase I seeks to resolve the legal questions surrounding the Agua Caliente tribe’s federally reserved rights to groundwater under the Winters doctrine, as well as the tribe’s aboriginal rights to groundwater.  The other two phases of the litigation are dependent upon a resolution of the tribe’s rights under Phase I.  If the case ever proceeds to Phase III, the California district court will undertake the fact-intensive tasks of quantifying the Agua Caliente’s rights to groundwater and pore space, and crafting appropriate injunctive relief.

The Parties’ Cross-Motions for Summary Judgment

All four parties to the case filed motions for summary judgment.  In their motion, the tribe argued that federal law recognizes the tribe’s reserved right to groundwater, and that the tribe also holds aboriginal title to the land in the Coachella Valley to which groundwater rights attach.  The U.S. government’s motion echoes that of the tribe’s, emphasizing the supremacy of federal water rights over those created by state law.  However, the government does not support the tribe’s claim of aboriginal ownership.

Conversely, the Coachella Valley Water District argued that Congress extinguished the tribe’s aboriginal groundwater rights, and that Winters rights impliedly reserved for the tribe do not extend to groundwater, and that even if they extend to groundwater, the purposes of the Agua Caliente tribe’s reservation will not entirely fail without a reserved right to groundwater.  The Desert Water Agency’s motion mirrored that of the water district’s, contending that the tribe has no federal reserved right in groundwater, and the tribe’s aboriginal water rights claim was extinguished by statute long ago.

District Court Says Tribe Has Federal Reserved Right to Groundwater

On the parties’ cross-motions for summary judgment, the California district court ruled that the Agua Caliente tribe has a federally reserved water right in the groundwater underlying their reservation pursuant to the Winters doctrine.  However, the district court determined that the tribe’s claim to an aboriginal groundwater right failed, explaining that “[t]he Act of 1851 extinguished the Tribe’s aboriginal occupancy right, and even if the Tribe re-established such a right it was not continuous and exclusive and continuous once the United States created the Agua Caliente’s reservation.”  As a result, the district court said the tribe could not assert an “original occupancy right,” so defendants were entitled to summary judgment on the aboriginal issue.  Following the district court’s decision, the defendant filed a petition for permission to immediately appeal the court’s summary judgment decision to the Ninth Circuit.

Winters Doctrine Front and Center on Appeal

On appeal, the key question will be the Court’s interpretation of the Winters doctrine.  Under the Winters doctrine, when the federal government sets aside lands for a reservation, it impliedly reserves sufficient water to fulfill the purposes of the reservation.  Even still, the Winters case involved only questions related to rights to surface water in rivers and streams, and does not even address federal reserved rights to groundwater.

In the time since Winters, a number of tribal reserved water right cases have been litigated and adjudicated as it relates to surface water sources.  Only three cases, arising in state courts, have addressed the groundwater issue in the context of the Winters doctrine.  And the determinations of the three state court cases ranged from finding no tribal reserved rights to groundwater (In re Gen. Adjudication of All Rights to Use Water in the Big Horn River Sys.), to finding conditional reserved rights to groundwater (In re the General Adjudication of All Rights to Use Water in the Gila River System and Source), to finding fully unconditional reserved rights to groundwater (see Confederated Salish & Kootenai Tribes of the Flathead Reservation v. Stults).

Despite Lack of Clarity in the Law, Tribes have Successfully Negotiated Rights to Groundwater

While the state court decisions fall on both sides of the groundwater issue, several tribes have been able to secure reserved rights to groundwater through water settlements.  In fact, of the nearly 30 water settlements that were enacted between 1978 and 2010, approximately one-half contain some provisions addressing rights to groundwater for tribes; though there has been little uniformity in the groundwater provisions of these water rights settlements.  For example, some of these settlements specified a quantity of groundwater for use or set a limit on tribal pumping of groundwater, while other settlements provided tribal communities with the express right to use groundwater beneath their lands.  But will these settlements have any impact on the Ninth Circuit’s decision?

Water District Argues Tribe Does Not Impliedly Exist

In its appellate brief, the water district argues that the U.S. Supreme Court has narrowly construed the reserved right doctrine because the doctrine conflicts with Congress’s policy of deference to state water law.  The water district says that, under this narrow construction, the tribe’s claimed reserved right in groundwater fails.  The water district claims that the tribe’s “claimed reserved right is not necessary to accomplish the primary reservation purposes and prevent these purposes from being ‘entirely defeated,’ and thus does not impliedly exist” under the Supreme Court’s narrow construction of the reserved right doctrine.

Agua Caliente Tribe Argues Government May Reserve Groundwater

In response, the Agua Caliente tribe asserts that “[a] federal reservation of land impliedly includes the reservation of water necessary to accomplish the purposes of the reservation,” and that “[a] Winters right is a fully vested and perfected federal property right in reserved water that exists from the date of a reservation’s establishment.”  The tribe says the district court correctly concluded “like every other court that has considered a similar question, that water is necessary to accomplish the purposes of the Agua Caliente Reservation.”  Similarly, the tribe claimed the district court also correctly concluded that the Winters doctrine applies to groundwater, and that the Ninth Circuit held more than forty years held that “the United States may reserve not only surface water, but also underground water.”

U.S. Government and Amici Lend Support to Tribe’s Arguments

The United States’ brief, as well as those of two amici, the SCA Tribal Chairmen’s Association and a number of law professors, support the tribe’s contentions.

Ninth Circuit’s Decision Could Have Lasting Impact on Western Water Law

All eyes will be fixed on the Ninth Circuit regarding its decision in the Agua Caliente case because it may have a significant impact on Western water law, including a number of settlements between other water conservancy districts and various Indian tribes.  If the Ninth Circuit upholds the District Court’s determination of federal reserved rights to groundwater for the Agua Caliente Tribe, the case will likely go back to the District Court to determine the limits of the reserved groundwater rights and how to quantify those rights.

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Copyright 2016

Navajo Nation - San Juan River

Navajo Nation closes in on water rights settlement

It appears that the Navajo Nation, the federal Bureau of Reclamation, and the State of Utah are closing in on a settlement over the Utah Navajo’s water rights to the San Juan River.  While the settlement must still be approved by Congress, the aforementioned parties are all in agreement on a settlement they say is both fair and likely to calm uncertainty as it relates to the San Juan River, which is a major tributary of the Colorado River that covers some 383 miles in the Four Corners area.  If approved, the Navajo Nation settlement will resolve one of the largest outstanding water rights claims in Utah.

Navajo Nation’s Water Rights Have Been Hard to Quantify Historically

The Navajo Nation was originally established via a treaty in 1868, which was long before many of the current users began drawing water from the region’s rivers.  By law, the Navajo Nation theoretically holds senior water rights to most competing uses, according to the “first in time, first in right” principle.  But for the Navajo Nation, as with many tribes, quantifying those rights has meant decades-long trudges through political negotiations and, sometimes, litigation.

The Navajo Nation Approves Settlement Over Water Rights, Allocating 81,500 Acre-Feet of Water Annually

In January 2016, lawmakers in the Navajo Nation approved the settlement by a vote of 13-7 without any debate.  The approved settlement will give the Navajo 81,500 acre-feet of water annually, which the settlement allows the Navajo to draw from aquifers and the San Juan River and its tributaries.  The Navajo could also potentially draw their share of water from Lake Powell, but the Navajo have said they have no interest to do so.

While the Utah Navajo currently use only a small portion of the 81,500 acre-feet of water that will be allocated to the tribe under the settlement, it has been reported that “the agreement will allow for economic development and leasing of water to entities off the reservation, and the tribe wouldn’t lose any water it did not put to use, according to the settlement.”  Tribal President Russell Begaye has said, “We do not intend to only utilize the water for drinking or housing purposes. We would also like to see it benefit business startups, tribal offices, schools and other programs on the Navajo Nation.”

Husband and Wife Attorney Team Hired to Advise Navajo Nation Over Settlement

The Navajo Nation has hired Daniel Cordalis and his wife Amy Cordalis, both attorneys and members of the Navajo tribe, to advise the Navajo Nation as it relates to the settlement over the San Juan River.  Mr. Cordalis has said, “That analysis led us to believe the settlement is fair and provides the Navajo Nation a favorable resolution of their Utah water rights claims.”

Congress to Allocate $200 Million for Navajo Nation Water Projects

In addition to the annual water allocated to the Navajo, the settlement calls for a Congressionally allocated, $200 million Utah Navajo Water Development Fund for Utah Navajo water projects.  The settlement also includes a waiver of any past legal claims by the Navajo Nation against the State of Utah and the U.S. government within Utah, a provision that is standard operating procedure in Indian water settlements.

Is First in Time Really Last in Line?

A somewhat controversial part of the settlement contains an agreement by the Navajo Nation that, if there is not enough water to fill its needs, the Navajo Nation will not assert priority over pre-existing, non-Native water users.  This provision of the settlement has purportedly raised some concerns in the water conservation community over the value of water rights conservationists say cannot be enforced.  “It kind of tells me that the state of Utah understands that there’s no water left for the tribes,” said John Weisheit, conservation director for Living Rivers, a Utah-based water advocacy group. “They’re first in rights, but last in line for water.”

However, Mr. Cordalis has said that while water supplies from the Colorado River may be in doubt, that is not the case as it relates to the San Juan River.  “The San Juan River is not burdened with downstream water rights such that those existing water rights present a significant detriment to Navajo’s 81,500 acre-feet a year (AFY) right,” he said. “In our opinion, there will be enough water in the San Juan River to achieve the full settlement value on a yearly basis.”

Grassroots Activists Feeling Left Out

Some grassroots activists have also complained that they have been left in the dark about the settlement’s terms, a concern that harkens back to 2012, when a massive outcry among Navajo activists led to the defeat of the Navajo-Hopi Little Colorado River Water Settlement Act of 2012.

“We want to be part of the decision-making, but we are not,” said Anna Frazier, a long-time activist with the Navajo grassroots group Diné CARE.  Still, there has not been public opposition to the Utah San Juan settlement as there was to the Little Colorado proposal in 2012.

Indian Water Settlements Proving Costly for Federal Government

In addition to the Utah settlement, American Indian water rights settlements nationwide have cost the federal government $4.3 billion, the Interior Department has said.  Congress enacted most of the 31 other settlements, while the others came about through federal agencies or court order. Four are pending in Congress for tribes in Montana, Oregon and California, according to the Interior Department.

Time Will Tell What Settlement Will Mean for Future of Navajo Nation and its Use of Water

While the Navajo settlement in Utah still needs the blessing of Congress, it appears that it may help with development and infrastructure within the tribe.  “What the settlement does is provide that flexibility for tribal members to both use water now and have enough water for future development, which ultimately is most important,” Mr. Cordalis said.  Similar to Mr. Cordalis, Leonard Tsosie, a Navajo Nation Council delegate, has promoted the settlement among his colleagues and constituents as a way to support existing and future Navajo communities in southeastern Utah.  “We can dream all we want but if there is no water, there is no development,” he said.

Only time will tell whether the Navajo settlement will provide the necessary water the tribe needs to fulfill their visions for progress and expansion.  Furthermore, demand on the Colorado and San Juan Rivers will only increase over time, which may mean that although the Navajo’s water rights are superior, they may be limited by the right of other non-Native users as set forth in the settlement.  It would seem awkward that the Navajo Nation has been granted this water right, but other non-Native users may trump that right if there is not enough water to fulfill the Navajo’s allocation.  In that case, first in right will be last in line.

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Copyright 2016