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April 30, 2019  |  Written by Richard S. Deitchman

Not Justiciable: Federal District Judge Rules in Favor of Water Agencies on Latest Issues in the Agua Caliente Litigation

Earlier this month, the U.S. District Court for the Central District of California issued a decision in “Phase #2” of Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et al., United States District Court for the Central District of California (District Court), Case No. 5:13-cv-00883-JGB-SP, finding that the Agua Caliente Band of Cahuilla Indians (Agua Caliente or Tribe) lacked standing to seek adjudication of its claim to quantification of its reserved groundwater right and its claim regarding groundwater quality.  A copy of the District Court decision is available here.  Although the Tribe may seek review in the Ninth Circuit Court of Appeals, the District Court decision is a victory for the local water agencies.

In 2015, the District Court issued a decision finding that the federal reserved water rights of the Tribe extend to groundwater.  In 2017, the Ninth Circuit affirmed the District Court’s judgment, and the United States Supreme Court denied certiorari.  Phase #2 of the litigation seeks to resolve (1) whether the Tribe owns the pore space underlying its reservation, (2) whether there is a water quality component to the Tribe’s federal reserved right, and (3) the appropriate legal standard to quantify the reserved right.  Phase #3, if necessary, will include quantification of the Tribe’s groundwater and pore space rights.

The salient facts to the Phase #2 ruling include that in 1876, President Ulysses S. Grant issued an Executive Order setting aside lands for the Tribe’s reservation.  The Tribe’s lands are interspersed with non-tribal lands.  As a result, the subject aquifer underlies both tribal and non-tribal lands.  The Tribe does not currently pump groundwater from the aquifer, but does utilize water supplied by the local water agencies.  At least portions of the aquifer are in overdraft, meaning that there is a lowering of the water table.  The water agencies import surface water (from the Colorado River) for recharge purposes.

The District Court first addressed quantification, and found that the Tribe lacks standing to seek quantification of its federal reserved right to groundwater.  The District Court specified that although non-use does not destroy the Tribe’s federal reserved right, it does impact whether the Tribe has standing to quantify the right.  The Tribe must meet the injury-in-fact requirement for Article III standing.  The District Court found that the Tribe presented no evidence of intent to pump groundwater, and that the overdraft condition alone is not sufficient evidence to satisfy the Tribe’s burden to provide evidence of injury to itself.  In other words, the Tribe failed to present evidence of an actual or imminent injury to its federal reserved right, and the mere existence of overdraft, without evidence of intent to pump, is not sufficient to satisfy the injury requirement.

The District Court next addressed whether there is a water quality component of the reserved right.  For standing, the District Court found that the Tribe must provide evidence that recharging the aquifer with Colorado River water actually or imminently impairs the Tribe’s ability to use water of sufficient quality to fulfill the purposes of the reservation.  The District Court found that the evidence does not indicate the Tribe cannot use the water to fulfill the purposes of the reservation.  The Tribe presented evidence that the recharge of Colorado River water will result in higher TDS levels in the groundwater, but the District Court found that the evidence included injury to water, but not injury to the Tribe’s federal reserved right because the Tribe provided no evidence that changes to the TDS level in the aquifer would preclude the Tribe, currently or imminently, from being able to use its reserved water for any purpose.

Finally, the District Court addressed the Tribe’s claim to ownership of pore space underlying the reservation.  Pore space, for purposes of the Tribe’s claim, is defined as the void or open subterranean spaces that are not filled by solid material, the empty space between rocks, sand, and other solid soil where water can be stored.  The District Court found that there is a concrete conflict on the ownership issue and that the Tribe does have standing to seek a declaration that it has ownership of sufficient pore space to store its federally reserved water.  Nonetheless, similar to the other issues, the District Court found that the Tribe did not provide evidence to support the existence of an actual or imminent threat to its ability to store water of any quantity necessary to fulfill the purposes of the reservation.  Thus, the District Court found that the Tribe does not have standing to seek injunctive relief concerning pore space.

Notwithstanding the likelihood of an appeal to the Ninth Circuit, the District Court’s latest decision greatly limits its 2015 landmark decision establishing that the Tribe has a federal reserved right to groundwater.  In short, the District Court found that although the Tribe has a federal reserved right to groundwater, it does not presently pump or have an intent to pump that groundwater, and thus lacks standing to seek quantification and a right to groundwater of certain quality.

For more information on this case, please contact Rich Deitchman at (916) 446 7979 or rdeitchman@somachlaw.com.

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