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Ninth Circuit Rules for Agua Caliente in Water Suit

A landmark ruling that could set precedent throughout Indian country upholds water rights for the Agua Caliente Band of Cahuilla Indians.

In a ruling that has implications across Indian country and the United States, the Ninth Circuit Court of Appeals ruled in favor of a Southern California tribe’s right to control the groundwater underneath its 31,500-acre reservation in and around Palm Springs. In the case Agua Caliente Band v. Coachella Valley Water District, the appeals court ruled on March 7 that the tribe’s water rights include a pristine aquifer that has given life to the desert peoples of the Coachella Valley for millennia.

“The Ninth Circuit’s decision today validates the Tribe’s work to protect and preserve the Coachella Valley’s most important natural resource,” Agua Caliente Band of Cahuilla Indians Tribal Chairman Jeff L. Grubbe said in a statement after the decision was handed down. “This is another critical step toward how water will be responsibly managed in the future.”

“The United States impliedly reserved appurtenant water sources, including groundwater, when it created the Tribe’s reservation in California’s arid Coachella Valley,” the three-judge panel ruled. The court referred to the Winters Doctrine, established by the 1908 U.S. Supreme Court decision of the same name, and which affirmed that the federal government’s rights to reserve water also apply to Indian reservations. In the decision, the Ninth Circuit determined that the Winters Doctrine “does not distinguish between surface water and groundwater,” the Indian law website Turtle Talk explained.

The suit initially grew out of the Agua Caliente Band’s alarm at the decline in the aquifer’s water levels—some 55 feet over a 40-year period. The tribe was also not satisfied with the plan by the Coachella Valley Water District and the Desert Water Agency, the two entities that manage water in the arid region, to replenish the aquifer with Colorado River water, which contains pesticides and other chemicals as well as having a high salinity content, without pretreatment. As early as 1996, the tribe worked to address the situation to prevent further damage or depletion of the aquifer.

"These practices are not acceptable for long-term health and viability of the Coachella Valley water supply," Grubbe said in the March 7 statement. "We called out this detrimental practice and brought it to the attention of the water districts over and over for years but were repeatedly ignored."

The districts countered, saying that Colorado River water meets drinking water standards. The tribe finally filed suit in 2013 against CVWD and the DWA to resolve the issue. The 400-member tribe was joined by other tribes and the California Association of Tribal Governments in supporting the suit, and the Native American Rights Fund has also partnered with the tribe and its law firm in litigating the case.

The agencies argued that the aquifer belongs to the public and that Agua Caliente is just one of many stakeholders in governing the groundwater basin, which stretches some 65 miles from the Whitewater River to the Salton Sea. They also fear that, if the tribe gains control of the water, it could raise water rates as much as $450 a year per homeowner, according to a fact sheet on CVWD’s website.

“The CVWD board will discuss next steps in this case that could ultimately determine control over the region’s groundwater,” said Jim Barrett, CVWD general manager, in a statement. “Because this is ongoing litigation, this conversation will take place in closed session.”

CVWD’s next board meeting is set for March 14. The statement goes on to say that the Ninth Circuit ruling could “open up the door for court-approved control of the groundwater basin.”

“We’re going to keep working toward the best outcome for the public,” said Mark Krause, DWA’s general manager, in a statement from that agency. “The groundwater basin should remain a shared public resource, carefully managed to ensure families and businesses have access to clean, reliable water for years to come.”

The next step in the ongoing case: a trial to determine just how much of the Coachella Valley aquifer will be managed by Agua Caliente. Tribes and water managers across the U.S. are watching the case closely, as it may determine the rights of tribes to manage the water beneath their feet for years to come.