and Submitted October 18, 2016 Pasadena, California
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
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.
Rights / Tribal Rights
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.
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.
the doctrine in Winters v. United States, 207 U.S.
564 (1908), federal reserved water rights are directly
applicable to Indian reservations.
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.
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.
TALLMAN, Circuit Judge:
the well's dry, we know the worth of water."
Benjamin Franklin (1706-1790), Poor Richard's Almanac.
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.
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).
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).
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.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.
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,  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.
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. 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 ...