Another Groundwater Case for SCOTUS? Do Reserved Rights Apply to Groundwater?

Back to the serious stuff!

The U.S. Supreme Court (SCOTUS) has never ruled on a dispute involving groundwater. There is currently one case now pending and being heard before a Special Master appointed by SCOTUS: the Mississippi v. Tennessee case involving the former's contention that the latter - via the City of Memphis's utility, Memphis Light, Gas, and Water (MLGW) - has been 'stealing' its groundwater for about 20 years. Mississippi is asking for a bit over $600M in compensation for its loss.

A number of us WaterWonks - not all lawyers - are salivating at the prospect of a ruling that might bring groundwater into the 21st century (legally speaking) instead of the 19th. I have written on this case and given countless PPT-fueled lectures/webinars on it. I've recently pined for a compact among the states involved in pumping water from the Memphis Sad (aka Sparta Sand) aquifer. I am unsure a decision will be reached this year, but at least SCOTUS will have a full complement of nine justices so a tie will be avoided.

But, until yesterday, I was unaware of another court case involving a groundwater dispute. This one involves reserved rights, or Winters rights, This case was decided by SCOTUS in 1908 and defined the water rights of Native American reservations when those rights had not been clearly defined when the reservation was established.

A great article by Ian James in The Desert Sun informed me of a recent case (photo by Jay Calderon):

The Coachella Valley’s largest water agencies will appeal to the U.S. Supreme Court to settle the question of whether the Agua Caliente Band of Cahuilla Indians has a federally established right to groundwater beneath the tribe’s reservation.

The Coachella Valley Water District and the Desert Water Agency announced Wednesday that they plan to submit their petition for a review by the Supreme Court in June or July. The agencies’ board members decided to take the case to the high court three weeks after a federal appeals court ruled the tribe holds a “reserved right” to groundwater.

The case is likely to set an important precedent for tribes across the country.

 

This case is not the same as Mississippi v. Tennessee, which was 'simply' (not really) a case of two states disputing ownership/access to a natural resource. In this case, the Ninth Circuit Court of Appeals has already ruled in favor of the tribe, upholding an earlier 2015 decision.

James continues:

The March 7 ruling by the Ninth Circuit Court of Appeals was the first ever to directly address the question of whether water rights reserved by the federal government apply to groundwater as well as surface water. The appeals court upheld a 2015 ruling in which a judge backed the tribe’s claim that it holds a federally granted “reserved right” to groundwater beneath its reservation in Palm Springs and surrounding areas.

The three-judge panel said in the opinion, which was written by Circuit Judge Richard C. Tallman, that the creation of the Agua Caliente Reservation in the 1870s "carried with it an implied right to use water from the Coachella Valley aquifer.”

The water districts have challenged that position, arguing the tribe shouldn’t have special rights above all other water users.

The article also noted that the U.S. Department of Justice has joined the lawsuit on the side of the tribes.

Remember - if SCOTUS decides not to hear the case, the Ninth Circuit Court's decision will stand:

If the court rules in favor of the Agua Caliente or declines to review the matter, the case would then return to federal court to settle other questions about the tribe's rights, including issues of water quality and how much groundwater the tribe is entitled to.

Read the entire article - more information is available that what I have reported. 

Here is the Ninth Circuit Court's decision (thanks to Lisa Beutler):

Download 20170307 Agua Caliente Band Appeal - Appellate Opinion

This case will be as important as the Mississippi v. Tennessee case, but in a different way. It will certainly empower tribes to assert their rights to pump groundwater because of the implicit reservation of those rights when their tribal lands (reservations) were recognized by the federal government.

Anybody want to guess how much total groundwater we could be talking about? Be my guest!

I am not betting on Mississippi v. Tennessee, but I might be willing to wager on the tribe.

Enjoy! 

Note added on 4 April 2017: See Jakob Wiley's comment on the reserved right to pore spaces, something that is unprecedented in either Indian or water law. Oil or gas law? See my 2009 post on 'Who Owns Pore Spaces?' 

"Don't let the same dog bite you twice." - Chuck Berry (in @billboard via @TheWeek)

Comments

[Perevesti]

This is a very useful article and desperately useful.

[The Water Nerd]

Another component of this case: Is there a reserved right to pore spaces? This has almost no precedent, in indian law or elsewhere.

[PAUL MILLER]

If this were to get to the Supreme Court and we have a new member ... corporate and water privatization wins...