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1 Alexandra M. Wyatt, Supreme Court Declines to Review Ninth Circuit Decision Applying Federal Reserved Water Rights Doctrine to Groundwater 1 (2017)

handle is hein.crs/crsmthmbdps0001 and id is 1 raw text is: SCongressional ______ GResearch Service ~ nforming the Ieg~Isative debate since 19!4 Supreme Court Declines to Review Ninth Circuit Decision Applying Federal Reserved Water Rights Doctrine to Groundwater Alexandra M. Wyatt Legislative Attorney December 21, 2017 The 2012-2016 drought in California and parts of other western states may have ended, but availability of water will continue to present issues for Congress to consider. While state, rather than federal, law typically governs allocations of water resources within a state, there are exceptions where federal law does affect water allocation. The federal reserved water rights doctrine, for example, holds that when the federal government reserves federal lands for a particular purpose (such as for a tribal reservation or national monument), it impliedly reserves a right to water necessary to accomplish the purposes for which the reservation was created. Since 1908, when the Supreme Court established the doctrine in Winters v United States, courts have applied it to surface waters; a March 2017 decision of the U.S. Court of Appeals for the Ninth Circuit (Ninth Circuit) held, apparently for the first time, that the doctrine can encompass groundwater as well. On November 27, 2017, the Supreme Court declined to review this decision, which thus, for now, sets a potentially important precedent within the Ninth Circuit for other groundwater resource issues and disputes. The case Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District originated when a tribe sued local water agencies in 2013 in federal district court in California, alleging that the water agencies were adversely affecting the quantity and quality of water available to them by over-drafting an aquifer. Among other claims, the tribe sought a declaration that it had a federally reserved right to the groundwater underlying the reservation, which was established in the 1870s. The United States intervened to defend its ownership, tribal trust, and sovereign interests in the water rights and the tribe's reservation. In 2015, the district court ruled in favor of the tribe and the United States on the threshold claim that the government impliedly reserved appurtenant water sources-including underlying groundwater-when it created the tribe's reservation. (Subsequent phases of the Agua Caliente Band case are still being litigated. They involve whether the tribe owns the pore space or storage space of the groundwater basin Congressional Research Service 7-5700 www.crs.gov LSB10048 CRS Legal Sidebar Prepared for Members and Committees of Conaress

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