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Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District

United States Court of Appeals, Ninth Circuit

March 7, 2017

Agua Caliente Band of Cahuilla Indians, Plaintiff-Appellee,
v.
Coachella Valley Water District; Ed Pack, in Official Capacity as Member of the Board of Directors of the Coachella Valley Water District; John Powell, Jr., in Official Capacity as Member of the Board of Directors of the Coachella Valley Water District; Peter Nelson, in Official Capacity as Member of the Board of Directors of the Coachella Valley Water District; G. Patrick O'Dowd, in Official Capacity as a Member of the Board of Directors of the Coachella Valley Water District; Castulo R. Estrada, in Official Capacity as a Member of the Board of Directors of the Coachella Valley Water District; Desert Water Agency; Patricia G. Oygar, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; Thomas Kieley, III, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; James Cioffi, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; Craig A. Ewing, in Official Capacity as Member of the Board of Directors of the Desert Water Agency; Joseph K. Stuart, in Official Capacity as Member of the Board of Directors of the Desert Water Agency, Defendants-Appellants. United States of America, Intervenor-Plaintiff-Appellee,

          Argued and Submitted October 18, 2016 Pasadena, California

         Appeal from the United States District Court For the Central District of California Jesus G. Bernal, District Judge, Presiding D.C. No. 5:13-cv-00883-JGB-SP

          Steven Bane Abbott (argued), Gerald D. Shoaf, and Julianna K. Tillquist, Redwine and Sherrill, Riverside, California, for Defendants-Appellants Coachella Valley Water District, G. Patrick O'Dowd, Ed Pack, John Powell Jr., Peter Nelson, and Castulo R. Estrada.

          Roderick E. Walston (argued), Arthur L. Littleworth, Michael T. Riddell, and Steven G. Martin, Best Best & Krieger LLP, Walnut Creek, California, for Defendants-Appellants Desert Water Agency, Patricia G. Oygar, Thomas Kieley III, James Cioffi, Craig A. Ewing, and Joseph K. Stuart.

          Catherine F. Munson (argued), Kilpatrick Townsend & Stockton LLP, Washington, D.C.; Steven C. Moore and Heather Whiteman Runs Him, Native American Rights Fund, Boulder, Colorado; Mark H. Reeves, Kilpatrick Townsend & Stockton LLP, Augusta, Georgia; Adam H. Charnes, Kilpatrick Townsend & Stockton LLP, Dallas, Texas; for Plaintiff-Appellee.

          Elizabeth A. Peterson (argued), Yosef M. Negose, Daron T. Carreiro, Patrick Barry, John L. Smeltzer, and William B. Lazarus, Attorneys; John C. Cruden, Assistant Attorney General; United States Department of Justice, Washington, D.C.; Christopher Watson and Scott Bergstrom, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Intervenor-Plaintiff-Appellee.

          Before: Richard C. Tallman and Morgan B. Christen, Circuit Judges, and Matthew F. Kennelly, [*] District Judge.

         SUMMARY [**]

         Water Rights / Tribal Rights

         The panel affirmed the district court's partial summary judgment in favor of the Agua Caliente Band of Cahuilla Indians and the United States, which declared that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe's reservation in California's arid Coachella Valley.

         The Tribe filed this action for declaratory and injunctive relief against water agencies, and the parties stipulated to divide the litigation into three phases. Phase I, at issue in this interlocutory appeal, addressed whether the Tribe has a reserved right to groundwater.

         Under the doctrine in Winters v. United States, 207 U.S. 564 (1908), federal reserved water rights are directly applicable to Indian reservations.

         The panel held that the Winters doctrine does not distinguish between surface water and groundwater. The panel held that the United States, in establishing the Agua Caliente reservation, impliedly reserved water. The panel further held that because the United States intended to reserve water when it established a home for the Agua Caliente Band of Cahuilla Indians, the district court did not err in determining that the government reserved appurtenant water sources - including groundwater - when it created the Tribe's reservation in the Coachella Valley. The panel also held that the creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coachella Valley aquifer.

         The panel rejected the water agencies' arguments concerning the contours of the Tribe's reserved water rights. The panel held that state water rights are preempted by federal reserved rights. The panel also held that the fact that the Tribe did not historically access groundwater did not destroy its right to groundwater now. Finally, the panel held that the Tribe's entitlement to state water did not affect the analysis with respect to the creation of the Tribe's federally reserved water right.

          OPINION

          TALLMAN, Circuit Judge:

         "When the well's dry, we know the worth of water." Benjamin Franklin (1706-1790), Poor Richard's Almanac.

         The Coachella Valley Water District ("CVWD") and the Desert Water Agency ("DWA") (collectively, the "water agencies") bring an interlocutory appeal of the district court's grant of partial summary judgment in favor of the Agua Caliente Band of Cahuilla Indians (the "Tribe") and the United States. The judgment declares that the United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe's reservation in California's arid Coachella Valley. We agree. In affirming, we recognize that there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater. However, because we conclude that it does, we hold that the Tribe has a reserved right to groundwater underlying its reservation as a result of the purpose for which the reservation was established.

         I

         A

         The Agua Caliente Band of Cahuilla Indians has lived in the Coachella Valley since before California entered statehood in 1850. The bulk of the Agua Caliente Reservation was formally established by two Presidential Executive Orders issued in 1876 and 1877, and the United States, pursuant to statute, now holds the remaining lands of the reservation in trust for the Tribe. The reservation consists of approximately 31, 396 acres interspersed in a checkerboard pattern amidst several cities within Riverside County, including Palm Springs, Cathedral City, and Rancho Mirage. See Agua Caliente Band of Mission Indians v. Riverside County, 442 F.2d 1184, 1185 (9th Cir. 1971).

         The Executive Orders establishing the reservation are short in length, but broad in purpose. In 1876, President Ulysses S. Grant ordered certain lands "withdrawn from sale and set apart as reservations for the permanent use and occupancy of the Mission Indians in southern California." Exec. Order of May 15, 1876. Similarly, President Rutherford B. Hayes's 1877 Order set aside additional lands for "Indian purposes." Exec. Order of Sept. 29, 1877. These orders followed on the heels of detailed government reports from Indian agents, which identified the urgent need to reserve land for Indian use in an attempt to encourage tribal members to "build comfortable houses, improve their acres, and surround themselves with home comforts." Comm'r of Indian Aff., Ann. Rep. 224 (1875). In short, the United States sought to protect the Tribe and "secure the Mission Indians permanent homes, with land and water enough." Comm'r of Indian Aff., Ann. Rep. 37 (1877).

         Establishing a sustainable home in the Coachella Valley is no easy feat, however, as water in this arid southwestern desert is scarce. Rainfall totals average three to six inches per year, and the Whitewater River System-the valley's only real source of surface water-produces an average annual supply of water that fluctuates between 4, 000 and 9, 000 acre-feet, most of which occurs in the winter months.[1]See CVWD, Engineer's Report on Water Supply and Replenishment Assessment at III-12 (2016-2017); CVWD, Urban Water Management Plan at 3-2, 3-20 (2005). In other words, surface water is virtually nonexistent in the valley for the majority of the year. Therefore, almost all of the water consumed in the region comes from the aquifer underlying the valley-the Coachella Valley Groundwater Basin.[2]

         The Coachella Valley Groundwater Basin supports 9 cities, 400, 000 people, and 66, 000 acres of farmland. See CVWD-DWA, The State of the Coachella Valley Aquifer at 2. Given the demands on the basin's supply, it is not surprising that water levels in the aquifer have been declining at a steady rate. Since the 1980s, the aquifer has been in a state of overdraft, [3] which exists despite major efforts to recharge the basin with water delivered from the California Water Project and the Colorado River. In total, groundwater pumping has resulted in an average annual recharge deficit of 239, 000 acre-feet, with cumulative overdraft estimated at 5.5 million acre-feet as of 2010.

         The Tribe does not currently pump groundwater on its reservation. Rather, it purchases groundwater from Appellant water agencies. The Tribe also receives surface water from the Whitewater River System, particularly the Andreas and Tahquitz Creeks that sometimes flow nearby. The surface water received from this system is consistent with a 1938 California Superior Court adjudication-the Whitewater River Decree-which attempted to address state-law water rights for users of the river system. Because the United States held the lands in trust, it participated in the adjudication via a "Suggestion" on behalf of the Tribe and the resulting state court order included a water allotment for the Tribe's benefit.[4] The amount of water reserved for the Tribe from this adjudication, however, is minimal, providing enough water to irrigate approximately 360 acres. Further, most of this allotment is filled outside of the ...


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