In the late 1800s, the federal government established a 31,000-acre reservation (“the reservation”) in California’s Coachella Valley for the Agua Caliente band of Cahuilla Indians (“the tribe”).
The executive orders creating the reservation state the purpose was for lands to be set aside “as reservations for the permanent use and occupancy for the Mission Indians in Southern California” and that the land would be reserved for “Indian purposes.”
Rainfall in this area averages 3 to 6 inches per year. The valley’s only real surface water source is the Whitewater River system, which produces 4,000 to 9,000 acre-feet per year, mostly in the winter months. Due to these factors, almost all water consumed in the region is groundwater from the Coachella Valley Groundwater Basin, and groundwater levels have been at a steady decline.
To date, the tribe has not pumped groundwater, instead obtaining surface water rights to the Whitewater River system and purchasing groundwater from other water agencies in the area, including the Coachella Valley Water District.
Lawsuit
The tribe filed suit in California federal court against the Coachella Valley Water District and other area water agencies in 2013, seeking a declaration the tribe had a federally reserved right to the groundwater underlying the reservation. In 2014, the U.S. intervened in the case, also arguing the tribe has a federally reserved water right to groundwater.
The trial court found for the tribe, holding that the U.S. reserved appurtenant groundwater when it established the tribe’s reservation, and that included groundwater. The trial court then certified its decision for an interlocutory appeal, which the water agencies sought and were granted by the U.S. Court of Appeals for the Ninth Circuit.
Ninth Circuit opinion
In March 2017, the Ninth Circuit affirmed the lower court’s opinion and sided with the tribe.
The U.S. Supreme Court has made clear that when the U.S. “withdraws its land from the public domain and reserves it for a federal purpose, the government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation.”
These reserved rights are deemed vested on the date of reservation and are superior to the rights of future appropriators. The two major limitations on this reservation of water rights are that the U.S. reserved only the amount of water necessary to accomplish the primary purpose of the reservation, and it only reserves water if it appurtenant to the withdrawn land.
The executive orders creating the reservation make clear the land was set aside for “permanent use and occupancy” of the tribe. Without water, the court noted, the tribe would have no ability to permanently live on the reservation. Thus, the court held, the U.S. did implicitly reserve water when creating the reservation.
Next, the court determined the reservation of water included groundwater, noting that “survival is conditioned on access to water – and a reservation without an adequate source of surface water must be able to access groundwater.”
Finally, the court rejected arguments of the water agencies. First, the court found federal law preempting California law already afforded the tribe correlative rights to groundwater. The court noted state law water law is preempted by federal law, and federal reserved water rights exist and are superior to rights of future appropriators.
Second, the court held there is no requirement of showing historic use in order for a federal reserved water right to be recognized. Finally, the court found access to some surface water did not factor into the analysis in this case, as the question was “whether water was envisioned as necessary for the reservation’s purpose at the time the reservation was created.”
The water agencies sought U.S. Supreme Court review of the case, which was denied in November. Thus, the litigation will head back to the trial court to address the remaining issues of whether a tribal right to groundwater includes the right to receive water of a certain quality and the quantification of any recognized groundwater rights.
Key takeaways
This case is really a landmark decision, as no federal court had previously addressed whether federal reserved groundwater rights included groundwater. Considering that much of the western U.S. contains large amounts of federal land – not just Indian reservations but national parks and military bases as well – that, based on this decision, may hold groundwater rights.
Given the water issues already facing the West, this could have significant impacts on water planning, policy and usage.
Update to January article
Shortly after the January edition was published, Congress passed the sweeping tax reform bill known as the “Tax Cuts and Jobs Act,” which significantly impacts – although does not eliminate – the federal estate tax. For persons dying in 2018 to 2025, the exemption amount will increase from the 2017 value of $5.49 million per person to $11.2 million per person.
Thus, a person only faces estate tax liability if their taxable estate exceeds that exemption amount. In 2026, the exemption amount will revert back to current levels, adjusted for inflation. Note that under the new bill, portability between spouses remains, as does the stepped-up basis at death. 
PHOTO: Pivot. Photo by Mike Dixon.
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Tiffany Dowell Lashmet
- Assistant Professor and Extension Specialist – Agricultural Law
- Texas A&M AgriLife Extension Service
- Email Tiffany Dowell Lashmet
