California Native American Tribe Has Federally Reserved Groundwater Rights

The federal reservation created in the 1870s for the Agua Caliente Band of Cahuilla Indians (Tribe) includes federal reserved water rights, and these water rights extend to groundwater underlying the reservation. That is the Ninth Circuit’s holding in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (9th Cir. 2017) 849 F.3d 1262, which stands after the U.S. Supreme Court declined to review the appelllate opinion on November 27, 2017.

The Ninth Circuit opinion in Agua Caliente now sets the stage for the trial court to define the contours of the Tribe’s federally reserved groundwater right, including whether this right encompasses the ability to store water in the basin (i.e., a right to use basin storage space) and includes an entitlement to groundwater of a certain quality.

Facts & Background

In May 2013, the Tribe filed suit against several Coachella Valley water agencies and asked the court to declare that the Tribe has federally reserved groundwater rights. Because of the complexity of the issues involved, the parties agreed to split the case into three phases. The Supreme Court’s decision not to hear the appeal from the Ninth Circuit resolves Phase I, the question of whether the Tribe’s federally reserved water rights include groundwater. In Phase II, the District Court will decide whether the Tribe has rights to storage space in the underlying groundwater basin and rights to a minimum level of water quality. In Phase III, the court will quantify the Tribe’s groundwater rights.

In Phase I, the Tribe asked the District Court to declare that it holds federally reserved rights to the groundwater underlying its reservation. The District Court ruled the Tribe does have federally reserved groundwater rights. These rights were reserved for its benefit by the federal government when it formally recognized the Tribe and created the Tribe’s reservation through Executive Orders in 1876 and 1877. Additionally, the District Court found the Tribe’s rights preempted groundwater rights based in state law because of their origin in federal law.

The Ninth Circuit affirmed the District Court’s holding based on an interpretation of the Winters doctrine (Winters v. United States (1908) 207 U.S. 564). Under the Winters doctrine, the court recognizes reserved water rights in lands the federal government reserved for Native American tribes. Two limits on the reservation of water rights are that the water source must be appurtenant, or physically connected, to the reserved land, and that water rights are only reserved to the extent that they are necessary to fulfill the primary purpose of the reserved land.

In this case, the Ninth Circuit concluded that in reserving lands for the Tribe, the federal government impliedly also reserved water rights for the Tribe to sustain its use and enjoyment of the reserved lands. For the first time, the Ninth Circuit extended the Winters doctrine to apply to groundwater. The reasoning for this extension of the Winters doctrine was twofold. First, the Coachella Valley Groundwater Basin lies directly beneath the Tribe’s lands and, therefore, satisfies the appurtenance element of the Winters doctrine. Second, the land was reserved for the Tribe’s habitation, a use that requires water. The region is arid,  so the Ninth Circuit reasoned that groundwater use was implicit on the reservation, since few sources of surface water are available.

The water agencies argued that even if the Tribe’s use of the reserved land required water, the Tribe’s past practice of acquiring water from the agencies showed water already is available to the Tribe, so that reserved groundwater rights are not needed. The Ninth Circuit rejected this theory, holding that the availability of alternative water sources under state law, and the Tribe’s lack of any history of groundwater pumping, did not affect its reserved rights.

What This Means To You

Water Agencies. This decision comes at a critical time for groundwater management in California, as groundwater sustainability agencies around the state begin to implement the Sustainable Groundwater Management Act of 2014 (“SGMA”). In recognizing a high-priority federal groundwater right under certain circumstances, the Ninth Circuit has highlighted the importance of evaluating the water rights of Native American tribes, and perhaps other types of federal water reservations, during SGMA implementation. These rights may help to define stakeholder groups, assist with calculating water budgets, and ultimately aid in drafting groundwater sustainability plans that will meet SGMA’s requirement to define and achieve sustainable yield for each of the 127 high- and medium-priority basins regulated by SGMA.

Groundwater Rights Holders. Holders of groundwater rights should evaluate the impact of this decision. A groundwater basin underlying federally reserved lands is potentially subject to an assertion of superior federally reserved groundwater rights. As groundwater sustainability plans are developed, stakeholders should keep this decision in mind. Any groundwater rights quantification completed in a basin that partially underlies federally reserved land might see future disputes, depending on whether, or how, federally reserved water rights were considered.

As Phases II and III of the Agua Caliente case are litigated, this case could further affect how groundwater rights are defined and quantified in California and elsewhere in the Ninth Circuit.

Tribal Governments. For federally recognized Native American tribes, this decision is monumental because it may give tribes a seat at the table when groundwater rights are discussed. The Tribe’s Chairman Jeff L. Grubbe said of the Ninth Circuit decision back in March that “this is another critical step toward how water will be responsibly managed in the future.” In California, SGMA acknowledges that federal and tribal law are not preempted by state law. This decision reaffirms that Native American tribal government’s water rights should be considered in development of groundwater sustainability plans. Such consideration will help ensure use of accurate information about the amount of available water in a basin for calculation of sustainable yield.

The Ninth Circuit’s opinion does not end all questions about federally reserved groundwater rights. Further change could be on the horizon, if the District Court rules in Phase II that the Tribe’s federally reserved rights extend to use of underground storage space in a groundwater basin and include a right to certain groundwater quality.


If you have any questions concerning this Legal Alert, please contact the following attorneys from our office or the attorney with whom you normally consult.

Eric Robinson | 916.321.4576

Holly Roberson | 916.321.4517

Andreas Booher | 916.321.4372