Not All Agua Is Caliente: Proposing the Winters Groundwater Test

• Publication year: 2021

98 Nebraska L. Rev. 220. Not All Agua is Caliente: Proposing the Winters Groundwater Test

Comment*

Not All Agua is Caliente: Proposing the Winters Groundwater Test

Hannes D. Zetzsche

TABLE OF CONTENTS

I. Introduction .......................................... 220

II. The Winters Doctrine ................................. 222
A. Winters v. United States ........................... 222
B. Development of the Winters Doctrine .............. 223

III. The Winters Doctrine Applied to Groundwater ......... 227
A. Growing Trend of Recognizing Federal Reserved Groundwater Rights ............................... 227
B. Agua Caliente ..................................... 228
C. Agua Caliente's Always-Never Approach ........... 230

IV. Proposing the Winters Groundwater Test .............. 232
A. Primary Purpose Prong ............................ 232
B. Actual Need Prong ................................ 233
C. Sensitivity Prong .................................. 236

V. Conclusion ............................................ 239

I. INTRODUCTION

"When the well's dry, we know the worth of water."(fn1) Nodding to water's-specifically groundwater's-value to inhabitants of the arid American West, the Ninth Circuit Court of Appeals in early 2017 held the Agua Caliente Band of Cahuilla Indians had impliedly reserved a federal right to groundwater underlying their land.(fn2) The court rea-

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soned its decision with the well-established Winters doctrine, under which the Supreme Court has recognized for more than a century that when the federal government agreed to reserve land from public purchase, it impliedly reserved enough surface water to accomplish the reservation's purpose.(fn3) Agua Caliente rippled through western water law communities, however, because it marked the first federal circuit court decision to recognize a federal reserved right to groundwater.(fn4)

Soon after the 2017 Agua Caliente decision, appellants in the case joined attorneys generals from seventeen western states to petition the Supreme Court for review.(fn5) The Court denied certiorari in November 2017(fn6) and, for now, the Agua Caliente decision joins the Winters doctrine as binding law in nine states and two U.S. territories.(fn7) It remains possible, if not likely, however, that the Court will grant certiorari to review Agua Caliente in the future because the case was trifurcated at the district court level, meaning stages two and three

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are yet to be completely litigated.(fn8) The Supreme Court may choose to review Agua Caliente on appeals from the second or third stages of litigation.

This Comment argues that the Ninth Circuit rightly decided Agua Caliente because the Winters principles that support a reserved right to surface water also support a reserved right to groundwater. Although the court reached the appropriate conclusion, it did so by an always-never approach to Winters groundwater that is out of step with Supreme Court doctrine.

Instead of the Agua Caliente approach, this Comment proposes a three-prong Winters Groundwater Test for analyzing claims of federal reserved groundwater. Part II traces the Winters doctrine through its hundred-plus years development. Part III discusses why the court rightly decided Agua Caliente but poorly analyzed it. Part IV proposes the Winters Groundwater Test, as informed by Supreme Court precedent. Finally, Part V provides an overview of how courts and the Supreme Court should view the Winters Groundwater Doctrine that is quickly emerging.

II. THE WINTERS DOCTRINE

A. Winters v. United States

Federal reserved water rights have been ruled by the Winters doctrine since 1908.(fn9) The doctrine's namesake case arose from a dispute over instream flow rights to the Milk River in Montana.(fn10) In 1888, Congress had reserved the Fort Belknap Reservation's land "as an Indian reservation as and for a permanent home and abiding place for the Gros Ventre and Assiniboing bands or tribes of Indians."(fn11) But by 1900, defendants in the case had also claimed land along the Milk River, settling upstream from the Reservation and building large dams and irrigation systems to divert a significant volume of the River's water.(fn12) The Gros Ventre and Assiniboing Tribes filed suit, claiming defendants violated their right to the Milk River's uninterrupted flow,(fn13) which they needed to fulfill the Reservation's purpose-

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to irrigate 30,000 acres of cropland and ensure the "home and abiding place" they reserved by their 1888 agreement with Congress.(fn14)

The Supreme Court of the United States decided the case by interpreting Congress's 1888 agreement with the tribes.(fn15) Noting the Gros Ventre and Assiniboing Tribes inhabited the land and used its appurtenant surface water long before the land's reservation was formally recognized by Congress,(fn16) the Court applied a common canon of interpretation that resolves all treaty ambiguities in favor of Native Americans.(fn17) Nothing in the agreement with Congress mentioned water,(fn18) but at the time the land was formally reserved, it was the American government's policy to break up Native Americans' tribal lives and replace them with agricultural lifestyles.(fn19) In arid Montana, the Fort Belknap Reservation would have been "practically valueless" for agriculture if water had not been reserved in tandem with the Reservation's land.(fn20) Was it reasonable to believe the tribes gave up their rights to "command of the lands and the waters," which were readily available(fn21) and made the Reservation adequate for its purpose?(fn22) The Court held it was not.(fn23) Thus, Winters established a rule of law that, unless the text of a reservation treaty expressly disavowed any reservation of water rights, the treaty implicitly reserved for its land sufficient water to fulfill the reservation's purpose.(fn24)

B. Development of the Winters Doctrine

After Winters, the Supreme Court did not decide another federal reserved water rights case for more than fifty years. Then, in Arizona v. California,(fn25) the Court clarified how to quantify Winters water

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rights.(fn26) When the United States, as trustee for Native Americans in Arizona, California, and Nevada, asserted water rights to the Colorado River's instream flow, a special master of stream adjudication allocated to the tribes a reserved right sufficient to irrigate as much of their reservations' land as was practicably irrigable.(fn27) Because the reservations' purposes were to provide land for agriculture, the special master reasoned the reservation had implicitly reserved enough water as would practicably be needed to irrigate its acres of agriculture.(fn28) Arizona challenged the special master's quantification method, however, arguing the tribes' water rights should be limited to the "reasonably foreseeable needs" of their reservations.(fn29) The Court rejected Arizona's proposed measuring standard because a quantification of water based on how many people lived on the reservation today and into the future could "only be guessed."(fn30) Instead, the special master's method was "the only feasible and fair way" to quantify federal reserved water rights.(fn31)

Six years after Arizona, the Court found a reserved water right within the Death Valley National Monument in Nevada.(fn32) The Cappaerts owned a seven million dollar ranch adjacent to the Monument and pumped groundwater from beneath it.(fn33) The United States sued to enjoin the Cappaerts from pumping groundwater because the pumping had caused the water level in one of the Monument's limestone caverns to drop, thereby threatening an endangered species of pupfish.(fn34) In establishing the Monument by statute, the federal government claimed Congress had implicitly reserved enough appurtenant surface and groundwater to support the Monument's purpose, which included protection of the pupfish.(fn35)

Looking to the Monument's purpose, the Court found that pupfish's protection was included in the reservation's purpose, which was stated in Congress's operative statute as preserving "unusual features of scenic, scientific, and educational interest."(fn36) The pupfish lived in an underground pool of scientific feature; so despite no express mention of the pupfish in the Monument's operative statute, the

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federal government had impliedly reserved for the pupfish enough water to ensure its survival.(fn37)

Effectively, the Court enjoined the Cappaerts from pumping any groundwater that would diminish the Monument's protected underground pool below a level that could sustain the pupfish. However, the Court's opinion included language that significantly limited the scope of federal reserved water rights. It declared the federal government "can protect its water from subsequent diversion, whether the diversion is of surface or groundwater,"(fn38) but the non-reservation diverter need only provide enough water to satisfy the "minimal need" of the reservation's purpose.(fn39)

After Cappaert, the Court next considered federal reserved water rights when New Mexico challenged a federal claim of instream flow rights from the Rio Mimbres River for the benefit of the Gila National Forest.(fn40) Congress reserved the National Forest via an Organic Administration Act,(fn41) but the Act only expressed the reservation's purpose as "to improve and protect the forest within the boundaries, or...