Author:Zablan, Zeslie
Position:2017-2018 Ninth Circuit Environmental Review
  1. INTRODUCTION 618 II. OVERVIEW OF THE WINTERS DOCTRINE 621 A. Winters v. United States 621 B. Arizona v. California 623 C. Cappaert v. United States 624 D. United States v. New Mexico 626 E. Summary of Supreme Court Precedent. 628 III. STATE SUPREME COURTS APPLYING THE WINTERS DOCTRINE TO GROUNDWATER 629 IV. APPLYING THE WINTERS DOCTRINE TO GROUNDWATER IN AGUA CALIENTE 630 A. The District Court's Opinion 630 B. The Ninth Circuit's Opinion 633 C. Discussion 635 V. CONCLUSION 639 I. INTRODUCTION

    More than 100 years ago, the United States Supreme Court established what has come to be known as the Winters doctrine, named for the seminal case in which the Supreme Court ruled that when the United States created a federal reservation of land for an Indian tribe, it impliedly reserved the amount of water necessary to fulfill the purpose of the reservation. (1) Over the past century, the Supreme Court has continually affirmed this enduring federal reserved rights doctrine, extending it to other types of federal reservations, including national monuments and national forests. (2) One California tribe's push for recognition of its right to sufficient water for its reservation lands under this doctrine has raised important issues that have yet to be resolved definitively concerning the treatment of both groundwater and water quality under Winters.

    The Agua Caliente Band of Cahuilla Indians (the Tribe or Agua Caliente) have lived in the Coachella Valley since long before California became a state in 1850. (3) President Ulysses S. Grant established the Tribe's reservation by executive order in 1876, and President Rutherford B. Hayes further expanded the reservation by a second executive order issued in 1877. (4) The language of the executive orders and the government reports that preceded them indicate that in establishing the reservation, the United States sought to secure the Tribe "permanent homes, with land and water enough."" But the Coachella Valley is an arid desert, with limited surface water resources and little rainfall, making access to sufficient water a critical issue for everyone in the region. (6)

    The main source of water in the region is the Coachella Valley Groundwater Basin. (7) This basin completely underlies the Tribe's reservation. (8) The groundwater basin supplies 400,000 people living in nine cities in the area and 66,000 acres of farmland. (9) As a result of such high demand, the aquifer has been in a state of overdraft for decades. (10) The Coachella Valley Water District and the Desert Water Agency (collectively, the "water agencies") rely heavily on this aquifer to supply their customers and have attempted to resolve the problem by recharging the aquifer using water imported from the California Water Project and the Colorado River. (11) Following this decision, a water quality study conducted by the U.S. Geological Survey in 2013 found higher levels of contaminants in Coachella Valley aquifers compared to the rest of California. (12) Because the inferior-quality imported water was not pre-treated, the quality of the natural groundwater has degraded. (13)

    "Water, including groundwater, has always been critical to Agua Caliente ... the ancestral Cahuilla people managed water scarcity by developing naturally occurring springs and digging walk-in wells throughout the modern day Coachella Valley." (14) Today, the Tribe is a customer serviced by the water agencies and depends on groundwater supplied by the water agencies to meet its water needs. (15) As both the quality and the quantity of the groundwater diminished, the Agua Caliente repeatedly reached out to the water agencies, expressing concerns that the water agencies did not have a long-term plan to responsibly and sustainably manage the groundwater resource. (16)

    In May of 2013, amid growing concerns over the quantity and quality of the groundwater remaining in the basin and after years of corresponding with the water agencies to try and address the problem, the Agua Caliente filed suit against the water agencies in the United States District Court for the Central District of California. (17) The Tribe asserted both aboriginal and reserved rights to the groundwater, requesting declaratory and injunctive relief to quantify its rights and to enjoin the water agencies from interfering with those rights. (18)

    The Agua Caliente case presents important questions that have yet to be resolved definitively by the Supreme Court. First, does the Winters doctrine extend to groundwater? Second, are reserved rights holders entitled to water of a certain quality in addition to quantity? In answering the first question during the first phase of litigation, (19) the district court ruled that the federal government impliedly reserved groundwater and surface water for the Agua Caliente when it created their reservation. (20) Other questions were reserved for later phases of litigation. Thus, the main issue presented to the United States Court of Appeals for the Ninth Circuit on appeal was whether the Winters reserved rights doctrine applies to groundwater, specifically in the context of Indian reservations. (21) The Ninth Circuit affirmed the ruling of the district court, holding that the Tribe has a reserved right to the groundwater underlying its reservation because of the purpose for which the reservation was created. (22) Although there is no other controlling federal appellate authority directly on point on such a critical issue, the Supreme Court denied certiorari. (23) Thus, the case remains ongoing at the district court, with the next phase of litigation before the district court addressing the quantification of the Tribe's reserved water right. (24) The outcome of Agua Caliente at this stage represents an important victory for tribes, particularly those who rely on access to groundwater to meet their water needs. (25)

    This Chapter argues that the Ninth Circuit's holding in Agua Caliente was the correct decision that represents a logical extension of the Winters doctrine to groundwater. Part II presents an overview of the Winters case and its progeny to illustrate the scope of the reserved rights doctrine and how it has evolved over time. Part III provides a brief look at different approaches to the Winters doctrine by state supreme courts. Part IV analyzes the district court and the Ninth Circuit opinions in light of this precedent and persuasive authority. Part V concludes by arguing that if (or, most likely, when) the issue reaches the Supreme Court in the context of other cases, the Court is likely to reach a similar holding, depending on whether the Court agrees that Indian reservations should be treated differently than other types of federal reservations when determining whether Winters rights exist. The Court may still very well reach a more limited outcome, however, perhaps limiting a case like Agua Caliente to its facts, avoiding a result that would extend Winters to all groundwater.


    1. Winters v. United States

      The Winters case involved the Fort Belknap Indian Reservation, which was created in the territory of Montana in 1888. (26) The defendant-appellants in Winters were non-Indian settlers, ranchers, and irrigation companies that had acquired lands neighboring the reservation through homesteader and desert land laws. (27) Conflict arose when the defendants built dams to divert water from the Milk River, which bordered the reservation, reducing the amount of water available to the downstream Indians. (28) When the United States brought suit on behalf of the Indians, the defendants presented a number of arguments in their defense. (29) First, they argued that the neighboring land they had purchased had been in the public domain, and that they were therefore subject to Montana law which allowed them to use the waters in the Milk River basin for irrigation. (30) Second, they noted that there were other sources of water available to the Indians on the reservation, and that the federal government therefore never intended to reserve Milk River water for use by the Indians when establishing the reservation. (31) Lastly, the defendants argued that Montana's admission into the United States in 1889 repealed any reservation for the Indians under the "equal footing" doctrine. (32)

      The Supreme Court resolved the case by focusing on the agreement of 1888 that had created the Fort Belknap Reservation. (33) In construing the agreement, the Court applied an established canon of construction of Indian law which instructs courts to interpret treaties made between the United States and Indians liberally in favor of the Indians. (34) The Court observed that the purpose of the reservation was to promote a pastoral and agricultural lifestyle among the Indians. (35) Yet the lands reserved were arid and "practically valueless" without irrigation. (36) Had the Indians intended to give up their rights to the river, the purpose of the agreement would have been entirely defeated. Emphasizing this point, the Court reasoned:

      The Indians had command of the lands and the waters--command of all their beneficial use, whether kept for hunting, "and grazing roving herds of stock," or turned to agriculture and the arts of civilization. Did they give up all this? Did they reduce the area of their occupation and give up the waters which made it valuable or adequate? (37) Between two conflicting interpretations, one which posited that the Indians gave up their rights to the water and one which argued they had not, the Court chose to uphold the interpretation that supported the purpose of the agreement. (38)

      The Winters Court then swiftly dismissed the defendants' "equal footing" argument, (39) reasoning that Congress could not have intended for the admission of Montana to the Union in 1889 to have repealed a reservation created in 1888, thereby destroying the reservation and removing the consideration from the agreement with the...

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