Aug 10, 2017

Agencies Fight With Tribe Over Groundwater

Ten states filed a brief before the U.S. Supreme Court

Ten states file brief over groundwater control

Ten states from Nevada to Texas have weighed in to support two water agencies in their fight with an Indian tribe over control of groundwater in the California desert. The states filed a brief before the U.S. Supreme Court, which will decide whether to take up an appeal by the Desert Water Agency and the Coachella Valley Water District.

The water agencies are challenging a decision by the Ninth Circuit Court of Appeals, which ruled the Agua Caliente Band of Cahuilla Indians has a federally established right to groundwater dating to the creation of its reservation in the 1870s.

If the Supreme Court agrees to hear the case, it would have an opportunity to settle the question of whether tribes hold special federal "reserved rights" to groundwater as well as surface water, and to define more clearly the boundaries between state-administered water rights and federal water rights.

Nevada Attorney General Adam Laxalt led the coalition of 10 states, saying the case is about defending state governments’ authority over the regulation of groundwater. “Western states like Nevada are particularly impacted by the current uncertainty of groundwater rights created by this recent Ninth Circuit decision,” Laxalt said in a statement. He urged the Supreme Court to “take the necessary steps to clarify the States’ groundwater rights and to ensure Nevada’s best interests are being protected from unnecessary and unwarranted federal interference.”

Other states that signed on in support of the water agencies included Arizona, Arkansas, Idaho, Nebraska, North Dakota, South Dakota, Texas, Wisconsin and Wyoming. California was not among them and has not formally taken a position on the case.

The Agua Caliente tribe sued the water agencies in 2013, seeking to assert rights to groundwater beneath its reservation in Palm Springs and surrounding areas.

The tribe accuses the agencies of imperiling the aquifer by allowing its levels to decline over the years and by using saltier, less pure Colorado River water to replenish the aquifer. The agencies defend their efforts to combat groundwater overdraft and insist that Colorado River water meets all drinking water standards.

Managers of the water agencies argue groundwater is a public resource and the tribe has the same rights under California law as all other landowners to use water pumped from the aquifer.

Desert Water Agency President James Cioffi discusses a Supreme Court appeal in the Agua Caliente tribe's landmark groundwater case. The Supreme Court hears a small percentage of the cases that are petitioned for review, and the court is expected to announce in the fall whether it will take up the case.

The states’ involvement in the case, and their stance that it presents an important unresolved legal issue, could increase the odds of the court hearing the case. If the Agua Caliente tribe prevails, the lawsuit would set a powerful precedent for other tribes across the country, strengthening their claims to groundwater.

The U.S. Department of Justice joined the suit in support of the tribe in 2014, saying the federal government has an interest in ensuring water rights for the tribe. The Supreme Court has never ruled on the question of whether tribes have a federally established right to groundwater. 

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