Federal appeals court rules Native American tribe has groundwater rights

[JURIST] A three-judge panel of the US Court of Appeals for the Ninth Circuit [official website] on Tuesday affirmed [opinion, PDF] a lower court ruling that the Agua Caliente Band of Cahuilla Indians [official website] has federally established rights to groundwater in the Coachella Valley reservation in California. This litigation proceeded in three phases in the trial court, but the Ninth Circuit panel considered only Phase I on appeal, which raised the issue "whether the Tribe has a federal reserved right to the groundwater underlying its reservation." The lower federal court granted a partial summary judgment motion in favor of the Agua Caliente Tribe stating that the US impliedly reserved appurtenant water sources, including groundwater, when it created the tribe's reservation in the Coachella Valley. The appellate panel agreed, holding that state water rights are preempted by federal reserved rights. In so holding, the panel acknowledged that "there is no controlling federal appellate authority addressing whether the reserved rights doctrine applies to groundwater." The panel also stated that it is irrelevant whether the tribe historically accessed groundwater and rejected any attempts to distinguish between surface water and ground water stating that the doctrine established by the Supreme Court in Winters v. United States [opinion] does not allow for such distinction. The panel also held that the tribe's entitlement to state water does not subrograte or otherwise affect its federally reserved water rights. In reaching this decision, the panel refused to speculate "how much water falls within the scope of the Tribe's federal groundwater right," but stated that "there can be no question that water in some amount was necessarily reserved to support the reservation created."

http://www.jurist.org/paperchase/2017/03/federal-appeals-court-rules-native-american-tribe-has-federally-established-rights-in-groundwater.php