Ninth Circuit Holds that Federal Reserved Water Rights Extend to Groundwater

by Snell & Wilmer

On March 7, 2017, the Ninth Circuit Court of Appeals issued its decision in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, Case No. 15-55896.  In this decision, the Court unequivocally held that under the well-established “Winters doctrine,” federal reserved water rights for an Indian reservation extend to groundwater when access to groundwater is necessary to fulfill the primary purpose of the reservation.  Despite noting that it was “unable to find controlling federal appellate authority explicitly holding that the Winters doctrine applies to groundwater,” the Court concluded that it does.  Opinion at 17.

In reaching this conclusion, the Court reviewed the history of the Winters doctrine and the major cases that have shaped the doctrine over the last 100 years.  Based on this review, the Court identified two “main limitation[s] of the reserved rights doctrine”: (i) “the requirement that the primary purpose of the reservation must intend water use,” and (ii) “the unappropriated water [to be reserved] must be appurtenant to the reservation.”  Id. at 17-18.  The Court quickly dispensed with the second of these limitations, noting that “[t]he parties do not dispute appurtenance, nor could they.  The Coachella Valley Groundwater Basin clearly underlies the Tribe’s reservation.”  Id. at 19, n. 10.  The Court spent substantially more time addressing the first issue—whether the primary purpose of the Tribe’s reservation impliedly required access to water.

Unfortunately, the Court used somewhat vague, and potentially inconsistent, language to describe the scope of this standard.  The Court began its analysis by noting that “the Winters doctrine . . . only reserves water to the extent it is necessary to accomplish the purpose of the reservation . . . .”  Id. at 12.  The Court then described the “primary-secondary use” standard created by the United States Supreme Court in United States v. New Mexico, 438 U.S. 696 (1978), under which water is impliedly reserved to satisfy the primary purposes of a reservation, but not for secondary purposes.  Id. at 13.  However, the Court concluded that “New Mexico’s primary-secondary use distinction did not alter the test envisioned by Winters.  Rather, it added an important inquiry related to the question of how much water is reserved.”  Id. at 15 (emphasis in original).  After applying New Mexico in this way, the Court then restated the “threshold issue” as “a reserved right exists if the purposes underlying a reservation envision access to water.”  Id. at 16 (emphasis added).

At first blush, this may appear to be a new, more relaxed standard for determining whether a reserved water right exists – i.e., did the purposes of the reservation “envision access to water” rather than is water “necessary” to satisfy the primary purpose of the reservation.  The Court, however, soon returned to a more familiar standard, concluding that “[w]ater is inherently tied to the Tribe’s ability to live permanently on the reservation.  Without water, the underlying purpose—to establish a home and support an agrarian society—would be entirely defeated.”  Id. at 17 (emphasis added).  Based on this conclusion, the Court held that “the United States implicitly reserved a right to water when it created the Agua Caliente Reservation.”  Id.

After reaching this holding, the Court next addressed a number of arguments asserted by two California water district defendants.  First, it held that the “appurtenance” requirement “simply limits the reserved right to those waters which are attached to the reservation.  It does not limit the right to surface water only.”  Id. at 18.  In support of this conclusion, the Court then cited a 1999 Arizona Supreme Court opinion, In re the General Adjudication of All Rights to Use Water In the Gila River System & Source, 989 P.2d 739, 746 (Ariz. 1999) (“Gila III”).  In Gila III, the Arizona court noted that “some reservations lack perennial streams and depend for present and future survival substantially or entirely upon pumping of underground water.”  Id.  In such circumstances, the Arizona court held that reserved water rights can extend to groundwater, and the Ninth Circuit agreed.  Agua Caliente Opinion at 19.

Finally, the Ninth Circuit also rejected a second argument advanced by the water district defendants: that the Tribe’s existing state law-based water rights (to both surface water and groundwater) negated any “necessity” for the Agua Caliente Tribe to secure a reserved right to groundwater.  The Court dispensed with this argument by noting that “state water rights are preempted by federal reserved rights,” and therefore “state water entitlements do not affect our analysis with respect to creation of the Tribe’s federally reserved water right.”  Id. at 21.

While the Ninth Circuit reached a definitive conclusion regarding whether the Winters doctrine extends to groundwater (it does), this case is far from over.  In what the Court termed an “unusual trifurcation” of the litigation, the parties agreed to address only this first, basic question in Phase I of the proceedings.  Yet to be addressed is the equally important question of how much groundwater the Tribe may be entitled to under its reserved right.  That issue will be addressed in Phase III of the case (Phase II addresses whether the Tribe owns the “pore space” of the underlying aquifer, and whether the Tribe has a right to groundwater of a certain quality).

Quantification of federal reserved water rights is always a complex and fact-intensive process.  Foreshadowing this future phase of the case, the Ninth Circuit closed its opinion with the following: “While we express no opinion on how much water falls within the scope of the Tribe’s federal groundwater right, there can be no question that water in some amount was necessarily reserved to support the reservation created.  Thus, to guide the district court in its later analysis, we hold that the creation of the Agua Caliente Reservation carried with it an implied right to use water from the Coachella Valley aquifer.”  Id. 21-22.  Only time will tell what the district court will do with this guidance.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Snell & Wilmer | Attorney Advertising

Written by:

Snell & Wilmer

Snell & Wilmer on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.