California case could set national precedent on Native Americans' water rights

By Glenn Minnis | Dec 7, 2016

SAN FRANCISCO -- A California federal appeals court is expected to rule soon in a water rights case pitting the Aqua Caliente Band of Cahuilla Indians against the state government in a decision that could spark concerns across the country.

Attorneys for both the Cahuilla Indians and Coachella Valley’s largest water districts recently made their final arguments before the U.S. Court of Appeals for the Ninth Circuit, but those proceedings could prove to be just a formality in a case many foresee as potentially going all the way to the Supreme Court.

At issue is whether the tribe has the legal right to manage the groundwater much of its land around the Palm Springs area sits on by tapping into the aquifer that controls it. At an October hearing, tribesmen insisted they have a “federally reserved” right to be able to conduct such actions, even if members have never done so before.

Meanwhile, lawyers for both the Coachella Valley Water District and Desert Water Agency have countered that a 2015 three-judge panel decision in favor of the tribe should be thrown out on the grounds the courts have already established that such rights only exist “if it is necessary to satisfy the primary purpose of the reservation.”

All across the country, many are monitoring the proceedings and viewing the case as a referendum on the question of if tribes are in any way entitled to the groundwater beneath their feet. In recent times, state supreme courts in Wyoming and Arizona have ruled on similar cases in different ways. No federal court has ever ruled on the matter, though attorneys for Aqua Caliente have often referred to a 1908 Supreme Court ruling (Winters vs. United States) where the court ruled Indian tribes are entitled to sufficient water supplies for their reservations.

In rendering that verdict, the high court did not distinguish if the so-called “Winter Rights” apply to both groundwater and surface water. In the California case, renowned Stanford University law professor and water expert Barton “Buzz” Thompson has said he’s convinced the tribe has the stronger legal argument.

The Aqua Caliente tribe first filed suit against the two agencies in early 2013. At the time, tribesmen also argued the two agencies had placed the aquifer in peril by allowing water levels to decrease and adopting a practice of using saltier, less pure water obtained from the Colorado River to replenish the supply.

“We called out this detrimental practice and brought it to the attention of the water districts over and over for years,” tribal chairman Jeff L. Grubbe told the Northern California Record.

Over the years, groundwater levels across the Coachella Valley have decreased as more and more water has been pumped from the aquifer to expand subdivisions and build golf courses, resorts and farms.

“These practices are not acceptable for long-term health and viability of the Coachella Valley water supply,” Grubbe said.

Through it all, water agency officials insist water gathered from the Colorado River often exceeds all drinking water standards. Beyond that, they openly question the tribe’s motivations for now wanting more access to the water, hinting that the 400-member group might be entertaining such ideas as opening a bottled water plant. The Aqua Caliente tribe already owns at least two spas and casinos in the area and has plans of building a new housing subdivision on tribal land.

As for the 2015 decision where a federal court judge concluded the government intended to reserve water for the tribe’s use on its own reservation, Grubbe said the verdict shows support for the tribe.

“It validates the tribe’s diligent work to protect and preserve one of the Valley’s most important natural resources," he said.

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