The Winters Doctrine Goes Underground American Water Resources

The Winters Doctrine Goes Underground American Water Resources Association The Science, Management and Governance of Transboundary Groundwater Conference Fort Worth, TX, 9 July 2018 Michael E. Campana Technical Director, AWRA Professor of Hydrogeology and Water Resources Management Oregon State University, Corvallis, OR, USA aquadoc@oregonstate. edu Water. Wired blog: www. waterwired. org Twitter: @Water. Wired

Quotes ‘Nothing motivates like a crisis (and a Supreme Court decree). ’ – Greg Lewis ‘The history of groundwater is as thrilling as ignorance, inertia, and timidity could have made it. ’ – Mark N. Goodman ‘What the heck is pore space? ’ – Tribal attorney to the tribal geologist

The Winters Doctrine • 1908 U. S. Supreme Court ruling in the case of Winters v. United States. • Milk River and Fort Belknap Indian Reservation in Montana (1888). Settlers used much water, claimed FBIR had not been allocated water rights (true). • SCOTUS ruled that when the Federal government set aside (‘reserved’) lands it also impliedly reserved sufficient water to accomplish the purposes for which the lands were established.

The Winters Doctrine - more • Winters rights must be evaluated for each reserved land • Has traditionally been applied to surface water • Does not apply solely to Indian lands. Can apply to national monuments, military reservations, etc.

What’s Up? • Lawsuit: Agua Caliente Band of the Cahuilla Indians v. Coachella Valley Water District. The tribe: • Sued CVWD and other water agencies in Federal District Court in California • Alleged that the water agencies were affecting quality and quantity of water available to them • Asserted that it had Winters rights to groundwater beneath its lands AND…

More…. • Owned the pore space beneath its land

Legal Action • • Tribe filed suit in Federal District Court found that the tribe did have Winters rights to groundwater beneath its reservation Water agencies appealed; Ninth Circuit Court of Appeals upheld lower court ruling re: Winters rights Agencies appealed to SCOTUS, which decided not to hear the case. That meant the Ninth Circuit’s decision was upheld, but applied only to states in Ninth Circuit.

Ninth Circuit Region

USA Principal Aquifers USGS: https: //on. doi. gov/2 r. WXtx 3

Friends of the Court Brief It is interesting to note that ten states – NV, AZ, ID, NE, ND, SD, WI, AR, WY and TX - filed an amici curiae brief in support of the water agencies’ appeal to SCOTUS. Reason: the states argued that the court should “narrowly constru[e] the reserved rights doctrine because it conflicts with Congress’ policy of deference to state water law. ”

Current Status • Aspect of lawsuit involving quality and quantity is under negotiation • Amount allocated by Winters rights to groundwater has not yet been determined • Pore space issue also unresolved • Tribes outside of Ninth Circuit will have to file their own lawsuits if they seek Winters groundwater rights

The Future? • Quality and pore space and issues could cause problems. Charging for pore space? Degrading existing groundwater? • Amount allowed by Winters groundwater rights could impact states’ allocations, water availability, and existing rights. • Tribes could become ‘water purveyors’ • Transboundary groundwater disputes?

By the Way, FYI… (courtesy Jay Weiner, Esq. ) • Arizona and Montana state supreme courts have already held that Winters rights can include groundwater. • Several Congressionally-approved Indian water rights settlements have included groundwater. • Ninth Circuit (1970 s) held that non-Indian Federal enclaves could hold groundwater reserved rights (Devils Hole National Monument). SCOTUS sidestepped issue by claiming DHNM was surface water.

References Campana, Michael E. , 2018. The Winters Doctrine Goes Underground. Water Resources IMPACT, 20(3): 23 -24 Folger, Peter. 2018. Federal Reserved Water Rights and Groundwater: Quantity, Quality, and Pore Space. Congressional Research Service (CRS) http: //tinyurl. com/ya 2 rvgs 5 Wyatt, Alexandra M. 2017. Supreme Court Declines to Review Ninth Circuit Decision Applying Federal Reserved Rights to Groundwater CRS, http: //tinyurl. com/yd 9 vmxzq

Agua Caliente Band Water Agencies Discuss Water Allocation Without Their Lawyers (courtesy: www. duckboy. com) Email: aquadoc@awra. org Thank You!