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March 14, 2017  |  Written by Brittany K. Johnson

Ninth Circuit Affirms District Court’s Holding That Federal Reserved Water Rights Extend to Groundwater

On March 7, 2017, the Ninth Circuit Court of Appeals issued an opinion in Agua Caliente Band v. Coachella Valley Water District, No. 15-55896, affirming the district court’s holding that federal reserved water rights can extend to groundwater.  Under what is known as the Winters doctrine, based on the seminal case Winters v. United States, 207 U.S. 584 (1908), when the United States withdraws land from the public domain and establishes a reservation, it reserves appurtenant water necessary to accomplish the purpose of the reservation.  The doctrine arose, and has been applied considerably, in relationship to surface water.  Other courts have evaluated whether and how federal reserved rights might extend to groundwater, and the decisions are not uniform.  The Ninth Circuit’s decision is the first federal appellate authority explicitly holding that the Winters doctrine applies to groundwater.

In the district court, the Agua Caliente Band of Cahuilla Indians (Agua Caliente Tribe or Tribe) filed an action for declaratory and injunctive relief against the water agencies from which it purchases groundwater.  The Tribe alleged that it has a federally reserved right to the groundwater underlying its reservation in the Coachella Valley Groundwater Basin.  The parties agreed to a trifurcation of the litigation, with the legal question whether the Tribe has a federal reserved right to appurtenant groundwater decided first and questions regarding amount and water quality addressed in later phases.  The district court entered partial summary judgment in the Tribe’s favor in a 2015 decision and certified its decision for interlocutory appeal.

In its opinion, the Ninth Circuit summarized the Winters doctrine:  the doctrine only reserves water to the extent necessary to accomplish the purpose of the reservation and only reserves water that is appurtenant to the withdrawn land.  As to the former aspect of the doctrine, the court explained that the purpose of the reservation is the “driving force behind the reserved rights doctrine” and that the “purpose of the reservation is controlling.”  The court states that the threshold question in evaluating whether a federal reserved water right exists is “whether the purposes underlying a reservation envision access to water.”

With respect to the Agua Caliente Tribe’s reservation, the Executive Orders establishing the reservation set aside the land for the permanent use and occupancy of the Tribe.  The Ninth Circuit concluded that water is “inherently tied” to the Tribe’s ability to live and establish a home on the reserved land.

Then the Ninth Circuit evaluated the question of appurtenance.  The court explained that a federal reserved right under Winters is limited to unappropriated water appurtenant to the reservation, but appurtenance does not limit the right to surface water only.  In the Tribe’s case, surface water in the Coachella Valley is nonexistent for most of the year, and minimal during the winter months.  The court reasoned that a reservation conditioned on access to water and created in an area with little to no surface water must be able to access groundwater.  Regarding appurtenance, the groundwater basin underlies the Tribe’s reservation.  Thus, the court concluded that the creation of the Tribe’s reservation implied a reserved right to appurtenant water from the Coachella Valley aquifer.

Under California law, landowners overlying a groundwater basin have a right to use percolating groundwater, subject to the reasonable, beneficial use of the water on the overlying land; overlying groundwater rights are correlative or shared among all overlying users.  The court rejected the water agencies’ arguments that the Tribe’s federal reserved water right is reduced or modified based on the Tribe’s correlative and decreed rights recognized under state law.  The court stated that federal reserved water rights preempt any conflicting state water rights and are not destroyed by non-use.  The court ruled that the relevant question remains “whether water was envisioned as necessary for the reservation’s purpose at the time reservation was created,” and state water entitlements do not affect that analysis.

Following the Ninth Circuit’s ruling, the case will return to the district court for the remaining phases of litigation, including the scope of the reserved water right.  For more information on this case, please contact Brittany Lewis-Roberts at

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