The U.S. Supreme Court, by refusing to hear an appeal of California water agencies, has let stand a ruling that could enshrine in law the rights to groundwater of tribal reservations.
The landmark case involved the Agua Caliente Band of Cahuilla Indians, of the Coachella Valley in Southern California, which sued to assert its rights to the groundwater under its reservation. In 2013, it sued the Desert Water Agency and the Coachella Valley Water District (CVWD,) which serve Palm Springs and nearby areas.
The 485-member tribe accused both agencies of harming the aquifer by allowing levels to go down and then replenishing them with Colorado River water, which, the tribes allege, is not as pure and has more salt. The water districts claim the river water met all drinking water standards.
By declining to hear the case the Supreme Court leaves standing the earlier ruling by the 9th Circuit Court of Appeals, that the tribe had the right to the groundwater dating back to when the federal government established the reservation in the 19th century. The reservation is larger than 31,000 acres in a checkerboard pattern that intersects all of the cities in the valley, including Palm Springs, Rancho Mirage and Cathedral City.
The decision is expected to give tribes all over the Western United States more of a hand in the use of groundwater—and could give them a superior position to other groundwater users. That many tribes saw this as a landmark case is shown by the fact that 35 tribes, many of them in California, and five tribal organizations filed amicus briefs in support of the Aqua Caliente band.
Ten states saw it that way too, but from the opposite perspective. In an amicus brief they wrote that every state “has an obvious stake in the presentation, maintenance and allocation of their most precious natural resource.”
Jack Powell, Jr., president of the CVWD board reacted to the decision: “We are disappointed in the decision because we believe the water in this valley is a shared resource that belongs to everyone.” In the past, he said, the tribe had always been able to purchase all the water it requested, “but now they have secured a water right that is superior to every other resident and business in the Coachella Valley.”
The tribe sees its new place as somewhat less lofty. Tribal Chairman Jeff Grubbe commented that the court challenge had been about obtaining, “a seat at the table” of deciding how the aquifer is managed. He told the Desert Sun: “the favorable rulings from the federal district court and the Ninth Circuit Court of Appeals recognizing and protecting the Reservation’s federal water right are now settled law.”
The tribe, said Grubbe, plans to seek to treat the Colorado River used to replenish the aquifer, and is willing to pay for the treatment. The water districts say they are concerned about the tribe’s ultimate goals, specifically how much water it wants. And, being water districts, they are worried that water prices may go up as a result.
The Desert Sun quoted Professor Leon Szeptycki of Stanford University, who heads the university’s Woods Institute for the Environment’s Water in the West program: “What it means for the Agua Caliente band, as well as other tribes in California and the West, in terms of actual water availability is not clear. The Ninth Circuit made clear that the tribal reserve right has priority, but what that means in the context of California’s groundwater rights system is a difficult and unsettled question.”
The case is not over. The next phase in federal court will determine how much of the groundwater the tribe is entitled to and whether water-quality will be addressed, said Szeptycki. That phase will begin in January.
The tribe uses a lot of water and will probably need more. Besides two golf courses, it also has the Spa Resort Casino in Palm Springs and the Agua Caliente Casino Resort Spa in Rancho Mirage—with plans for a third casino and a housing development.
By declining to take up the case, the Supreme Court leaves unaddressed issues such as whether tribes possess a federal “reserved right” to groundwater and to differentiate between state water rights and federal water rights.
A 1908 Supreme Court case, Winters v. United States, had confirmed that tribes are entitled to water for the reservations, however the March 9th Circuit ruling extended that from surface water to groundwater on federal lands, including reservations. That was the first time a federal court had delved into whether water rights reserved for the federal government applied to groundwater.
Jim Ciofi, president of the Desert Water Agency, told the Desert Sun, “This case could completely change water management in our area. We will continue to protect the interests of the community through this lawsuit and any efforts to divvy up local groundwater rights.”
Groundwater has become a major issue in the Golden State, where in 2014 the legislature passed the Sustainable Groundwater Management Act, the first time the state invaded local groundwater rights. It requires local agencies to create plains to manage groundwater. But that law doesn’t apply to the 109 tribes in the California.
The water agencies jointly issued a statement reflecting their concerns: “The Coachella Valley’s water supply is now in uncharted territory. Western states have developed complex legal regimes and permitting systems to protect groundwater basins from ever-increasing demands on water resources. The decision will drastically complicate, and in some locations could entirely defeat, these state and local efforts.”
