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Agua Caliente Band wins major decision on rights to groundwater






Agua Caliente Band Chairman Jeff Grubbe speaks at the National Congress of American Indians annual convention in San Diego, California, on October 22, 2015. Photo by Indianz.Com / Available for use under a Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International License

The Agua Caliente Band of Cahuilla Indians is celebrating after winning another round in its ongoing water rights lawsuit.

In a unanimous decision, the 9th Circuit Court of Appeals on Tuesday rejected efforts to limit the tribe's rights. A panel of three judges said the reservation in southern California was created as a "permanent" homeland for the Agua Caliente people, one that includes access to groundwater.

Water is “essential to the life of the Indian people,” Judge Richard C. Tallman wrote, quoting from a precedent-setting tribal water case.

The 22-page ruling represents a strong rebuke to the Desert Water Agency and the Coachella Valley Water District, whose leaders argued that the tribe was only entitled to surface water on the reservation. The court pointed out that surface water is "minimal or entirely lacking for most of the year" in the region.

"Thus, survival is conditioned on access to water — and a reservation without an adequate source of surface water must be able to access groundwater," Tallman wrote for the 9th Circuit.

The decision, which affirmed the tribe's victory at a lower court, is only the first step in a long process. Future stages will quantify the tribe's water rights and will determine whether the tribe is entitled to water of a certain quality

“The Ninth Circuit’s decision today validates the tribe’s work to protect and preserve the Coachella Valley’s most important natural resource,” Chairman Jeff L. Grubbe said in a press release. “This is another critical step toward how water will be responsibly managed in the future.”


Indianz.Com SoundCloud: 9th Circuit Court of Appeals Oral Arguments in Agua Caliente Band of Cahuilla v. Coachella Valley Water District October 18, 2016

The case is being watched closely throughout California, which is home to more than 100 tribes and the largest Native American population in the nation. Most tribes in the state have not yet quantified their water rights and a negative ruling from the 9th Circuit could have hindered those efforts.

"The purpose of the Indian reserved rights doctrine is to meet the water needs of the reservation, and that purpose plainly implies sufficient water to meet those needs, including groundwater when necessary," a coalition of California tribes wrote in a brief for the case.

In addition to California, the 9th Circuit covers Alaska, Arizona, Idaho, Nevada, Montana, Oregon and Washington. All are states with a significant number of tribes -- some with water settlements in various stages of development -- so the Agua Caliente ruling solidifies the court's long-standing treatment of tribal rights.

But the two agencies that are on the other side of the battle insist the Agua Caliente Band is making an "unprecedented" request for groundwater. They have not decided how they will respond to the 9th Circuit but they indicated an appeal to the U.S. Supreme Court is possible.

"DWA and CVWD may pursue an appeal with the United States Supreme Court in the precedent-setting case, or the case will return to the federal district court for the next phases of the trial, which will determine how groundwater supplies are divided up amongst water users," the agencies said in a statement on Tuesday.

The seminal tribal water rights case is Winters v. US, which originated in the 9th Circuit. In 1908, the Supreme Court determined that tribes are entitled to sufficient water for their reservations.

Arizona v. California, another 9th Circuit case, included the line about water being "essential" for life in Indian Country.

Turtle Talk has posted briefs from the case Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District. The Department of Justice has intervened on behalf of the tribe.

9th Circuit Court of Appeals Decision:
Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District (March 7, 2017)

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