The reservation of the Agua Caliente Band of Cahuila Indians overlies the Coachella Valley groundwater basin in California. Groundwater is perhaps the most critical water resource for California’s water future. In an arid climate, surface waters are often available seasonally and unreliably. Because of this, many big water users have opted to simply pump groundwater and have been doing so with little or no oversight for decades. The tribe has expressed growing concerns about the viability of its groundwater basin. The Agua Caliente continue working to protect the groundwater resource and ensure that it is managed responsibly.
NARF, with the Kilpatrick Townsend law firm of Washington, D.C., represents the Agua Caliente in a lawsuit filed in May 2013 in the U.S. District Court for the Central District of California. The case asks the court
- to declare the existence of the tribe’s water rights as the senior rights in the Coachella Valley under federal law, and
- to quantify these rights.
The case also seeks to prevent Coachella Valley Water District and Desert Water Agency from further injuring the tribe and residents in surrounding communities by impairing the quantity and quality of water in the aquifer. The water districts import—and do not adequately treat—lower quality water from the Colorado River. The water, which contains higher total dissolved solids, nitrates, pesticides, and other contaminants, is injected into the Coachella Valley aquifer at a facility close to the tribe’s lands. Thus, the groundwater in the Western Coachella Valley, including the water below the Agua Caliente Reservation, which includes the cities of Palm Springs, Cathedral City, Rancho Mirage, and Thousand Palms, is being polluted at a faster rate than the aquifer down-valley.
The court issued its ruling on the parties’ summary judgment motions on March 27, 2015. The court ruled largely in the tribe’s favor, holding that the Agua Caliente Band of Cahuilla Indians has a reserved right to water, and groundwater is a water source available to fulfill that right. The court denied the tribe’s motion for summary judgment on its claim for aboriginal title to groundwater.
The water districts have filed a petition with the U.S. Court of Appeals for the Ninth Circuit for interlocutory review of the portion of the District Court’s order addressing the tribe’s reserved right to groundwater. The Ninth Circuit granted the water districts’ petition for interlocutory review. Briefing before the Ninth Circuit is underway. Oral argument will likely take place in early 2016.
The water agencies moved to stay proceedings before the district court while the Ninth Circuit reviews the court’s decision on the tribe’s reserved right to groundwater and the district court granted their motion in part on September 9, 2015. However, Phase 2, which deals with issues such as water quality and what standards will be used to quantify the tribe’s rights, is moving forward on a limited basis. The court agreed to hear arguments on the issue of whether the equitable defenses raised by the water agencies apply to tribal water rights claims. Briefing was completed in November 2015, and oral argument was heard on December 14, 2015. At oral argument, the judge stated that he was inclined to rule in the tribe’s favor on two of the equitable defense issues: laches and balancing of the equities; however, he ordered supplemental briefing on the third issue before the court: whether the unclean hands doctrine could, as a matter of law, apply to this type of claim. As of this writing, we are awaiting the court’s ruling on the equitable defenses. The remainder of Phase 2 issues were stayed by the court pending the Ninth Circuit’s resolution of the water agencies’ appeal.
Read More: Protect Tribal Natural Resources