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 water districts 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 and moved to stay proceedings before the district court while the Ninth Circuit reviews. The district court granted their motion to stay in part in September 2015. However, Phase 2 proceeded on a limited basis, with the court agreeing to hear arguments on the issue of whether the equitable defenses raised by the water agencies apply to tribal water rights claims. Briefing on that issue was completed in November 2015 and oral argument was heard in December 2015. On February 23, 2016, the court granted the tribe’s and United States’ motions for partial summary judgment, ruling that the defenses asserted by the water agencies could not, as a matter of law, be asserted against an Indian water rights claim. The remainder of the Phase 2 issues was stayed by the court pending the Ninth Circuit’s resolution of the water agencies’ appeal.
The court also denied the tribe’s motion for summary judgment on its claim for aboriginal title to groundwater. The water districts filed a petition with the U.S. Court of Appeals for the Ninth Circuit for interlocutory review of the portion of the court’s order addressing the Tribe’s reserved right to groundwater. The Tribe opposed interlocutory review but on June 10, 2015, the Ninth Circuit granted the water districts’ petition for interlocutory review. Briefing to the Ninth Circuit was completed, and oral argument on the interlocutory review of the district court’s Phase 1 ruling on the Tribe’s reserved right to groundwater was heard by a three judge panel of the Ninth Circuit on October 18, 2016, in Pasadena.
The three judge panel of the Ninth Circuit issued on March 7, 2017, a unanimous affirmance of Judge Bernal’s ruling, holding that the Winters doctrine applies to water sources appurtenant to the Agua Caliente Reservation, including groundwater. The court also broadly construed the original purposes for the creation of the reservation. Most recently, the defendant water districts have indicated they are foregoing motions to the Ninth Circuit for rehearing and will petition the Supreme Court for a writ of certiorari.
Read More: Protect Tribal Natural Resources