Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

AGUA CALIENTE BAND OF CAHUILLA No. 15-55896

INDIANS,

Plaintiff-Appellee, D.C. No.

5:13-cv-00883-

UNITED STATES OF AMERICA, JGB-SP

Intervenor-Plaintiff-Appellee,

v. OPINION

COACHELLA VALLEY WATER

DISTRICT; ED PACK, in Official

Capacity as Member of the Board of

Directors of the Coachella Valley

Water District; JOHN POWELL, JR., in

Official Capacity as Member of the

Board of Directors of the Coachella

Valley Water District; PETER

NELSON, in Official Capacity as

Member of the Board of Directors of

the Coachella Valley Water District;

G. PATRICK O’DOWD, in Official

Capacity as a Member of the Board

of Directors of the Coachella Valley

Water District; CASTULO R.

ESTRADA, in Official Capacity as a

Member of the Board of Directors of

the Coachella Valley Water District;

DESERT WATER AGENCY; PATRICIA

G. OYGAR, in Official Capacity as

Member of the Board of Directors of

2 AGUA CALIENTE BAND V.

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the Desert Water Agency; THOMAS

KIELEY, III, in Official Capacity as

Member of the Board of Directors of

the Desert Water Agency; JAMES

CIOFFI, in Official Capacity as

Member of the Board of Directors of

the Desert Water Agency; CRAIG A.

EWING, in Official Capacity as

Member of the Board of Directors of

the Desert Water Agency; JOSEPH K.

STUART, in Official Capacity as

Member of the Board of Directors of

the Desert Water Agency,

Defendants-Appellants.

Appeal from the United States District Court

For the Central District of California

Jesus G. Bernal, District Judge, Presiding

Argued and Submitted October 18, 2016

Pasadena, California

Filed March 7, 2017

Before: Richard C. Tallman and Morgan B. Christen,

Circuit Judges, and Matthew F. Kennelly, * District Judge.

Opinion by Judge Tallman

*

The Honorable Matthew F. Kennelly, United States District Judge

for the Northern District of Illinois, sitting by designation.

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SUMMARY **

Water Rights / Tribal Rights

The panel affirmed the district court’s partial summary

judgment in favor of the Agua Caliente Band of Cahuilla

Indians and the United States, which declared that the United

States impliedly reserved appurtenant water sources,

including groundwater, when it created the Tribe’s

reservation in California’s arid Coachella Valley.

The Tribe filed this action for declaratory and injunctive

relief against water agencies, and the parties stipulated to

divide the litigation into three phases. Phase I, at issue in this

interlocutory appeal, addressed whether the Tribe has a

reserved right to groundwater.

Under the doctrine in Winters v. United States, 207 U.S.

564 (1908), federal reserved water rights are directly

applicable to Indian reservations.

The panel held that the Winters doctrine does not

distinguish between surface water and groundwater. The

panel held that the United States, in establishing the Agua

Caliente reservation, impliedly reserved water. The panel

further held that because the United States intended to

reserve water when it established a home for the Agua

Caliente Band of Cahuilla Indians, the district court did not

err in determining that the government reserved appurtenant

water sources – including groundwater – when it created the

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

4 AGUA CALIENTE BAND V.

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Tribe’s reservation in the Coachella Valley. The panel also

held that the creation of the Agua Caliente Reservation

carried with it an implied right to use water from the

Coachella Valley aquifer.

The panel rejected the water agencies’ arguments

concerning the contours of the Tribe’s reserved water rights.

The panel held that state water rights are preempted by

federal reserved rights. The panel also held that the fact that

the Tribe did not historically access groundwater did not

destroy its right to groundwater now. Finally, the panel held

that the Tribe’s entitlement to state water did not affect the

analysis with respect to the creation of the Tribe’s federally

reserved water right.

COUNSEL

Steven Bane Abbott (argued), Gerald D. Shoaf, and Julianna

K. Tillquist, Redwine and Sherrill, Riverside, California, for

Defendants-Appellants Coachella Valley Water District, G.

Patrick O’Dowd, Ed Pack, John Powell Jr., Peter Nelson,

and Castulo R. Estrada.

Roderick E. Walston (argued), Arthur L. Littleworth,

Michael T. Riddell, and Steven G. Martin, Best Best &

Krieger LLP, Walnut Creek, California, for Defendants-

Appellants Desert Water Agency, Patricia G. Oygar,

Thomas Kieley III, James Cioffi, Craig A. Ewing, and

Joseph K. Stuart.

Catherine F. Munson (argued), Kilpatrick Townsend &

Stockton LLP, Washington, D.C.; Steven C. Moore and

Heather Whiteman Runs Him, Native American Rights

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Fund, Boulder, Colorado; Mark H. Reeves, Kilpatrick

Townsend & Stockton LLP, Augusta, Georgia; Adam H.

Charnes, Kilpatrick Townsend & Stockton LLP, Dallas,

Texas; for Plaintiff-Appellee.

Elizabeth A. Peterson (argued), Yosef M. Negose, Daron T.

Carreiro, Patrick Barry, John L. Smeltzer, and William B.

Lazarus, Attorneys; John C. Cruden, Assistant Attorney

General; United States Department of Justice, Washington,

D.C.; Christopher Watson and Scott Bergstrom, Office of

the Solicitor, United States Department of the Interior,

Washington, D.C.; for Intervenor-Plaintiff-Appellee.

OPINION

TALLMAN, Circuit Judge:

“When the well’s dry, we know the worth of

water.” Benjamin Franklin (1706–1790),

Poor Richard’s Almanac.

The Coachella Valley Water District (“CVWD”) and the

Desert Water Agency (“DWA”) (collectively, the “water

agencies”) bring an interlocutory appeal of the district

court’s grant of partial summary judgment in favor of the

Agua Caliente Band of Cahuilla Indians (the “Tribe”) and

the United States. The judgment declares that the United

States impliedly reserved appurtenant water sources,

including groundwater, when it created the Tribe’s

reservation in California’s arid Coachella Valley. We agree.

In affirming, we recognize that there is no controlling federal

appellate authority addressing whether the reserved rights

doctrine applies to groundwater. However, because we

6 AGUA CALIENTE BAND V.

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conclude that it does, we hold that the Tribe has a reserved

right to groundwater underlying its reservation as a result of

the purpose for which the reservation was established.

I

A

The Agua Caliente Band of Cahuilla Indians has lived in

the Coachella Valley since before California entered

statehood in 1850. The bulk of the Agua Caliente

Reservation was formally established by two Presidential

Executive Orders issued in 1876 and 1877, and the United

States, pursuant to statute, now holds the remaining lands of

the reservation in trust for the Tribe. The reservation

consists of approximately 31,396 acres interspersed in a

checkerboard pattern amidst several cities within Riverside

County, including Palm Springs, Cathedral City, and

Rancho Mirage. See Agua Caliente Band of Mission Indians

v. Riverside County, 442 F.2d 1184, 1185 (9th Cir. 1971).

The Executive Orders establishing the reservation are

short in length, but broad in purpose. In 1876, President

Ulysses S. Grant ordered certain lands “withdrawn from sale

and set apart as reservations for the permanent use and

occupancy of the Mission Indians in southern California.”

Exec. Order of May 15, 1876. Similarly, President

Rutherford B. Hayes’s 1877 Order set aside additional lands

for “Indian purposes.” Exec. Order of Sept. 29, 1877. These

orders followed on the heels of detailed government reports

from Indian agents, which identified the urgent need to

reserve land for Indian use in an attempt to encourage tribal

members to “build comfortable houses, improve their acres,

and surround themselves with home comforts.” Comm’r of

Indian Aff., Ann. Rep. 224 (1875). In short, the United

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States sought to protect the Tribe and “secure the Mission

Indians permanent homes, with land and water enough.”

Comm’r of Indian Aff., Ann. Rep. 37 (1877).

Establishing a sustainable home in the Coachella Valley

is no easy feat, however, as water in this arid southwestern

desert is scarce. Rainfall totals average three to six inches

per year, and the Whitewater River System—the valley’s

only real source of surface water—produces an average

annual supply of water that fluctuates between 4,000 and

9,000 acre-feet, most of which occurs in the winter months. 1

See CVWD, Engineer’s Report on Water Supply and

Replenishment Assessment at III-12 (2016–2017); CVWD,

Urban Water Management Plan at 3-2, 3-20 (2005). In other

words, surface water is virtually nonexistent in the valley for

the majority of the year. Therefore, almost all of the water

1

An acre-foot is the volume of water sufficient to cover one acre in

area at a depth of one foot. CVWD, 2010–2011 Annual Review at 2. It

is equivalent to 325,851 gallons. Id. It takes about four acre-feet of

water to irrigate one acre of land for a year in the Coachella Valley. See

U.S. Dep’t of Agric., A Review of Agricultural Water Use in the

Coachella Valley at 6 (2006). Therefore, at 9,000 acre-feet per year, the

river system provides enough water to irrigate around 2,250 acres. At

4,000 acre-feet per year, the system can only irrigate about 1,000 acres.

Considering that the Tribe is not the only user of the Whitewater River

System, and that its reservation alone accounts for 31,396 acres, even in

a peak year the river system provides very little water for irrigation or

for human consumption.

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consumed in the region comes from the aquifer underlying

the valley—the Coachella Valley Groundwater Basin. 2

The Coachella Valley Groundwater Basin supports 9

cities, 400,000 people, and 66,000 acres of farmland. See

CVWD-DWA, The State of the Coachella Valley Aquifer at

2. Given the demands on the basin’s supply, it is not

surprising that water levels in the aquifer have been

declining at a steady rate. Since the 1980s, the aquifer has

been in a state of overdraft, 3 which exists despite major

efforts to recharge the basin with water delivered from the

California Water Project and the Colorado River. In total,

groundwater pumping has resulted in an average annual

recharge deficit of 239,000 acre-feet, with cumulative

overdraft estimated at 5.5 million acre-feet as of 2010.

The Tribe does not currently pump groundwater on its

reservation. Rather, it purchases groundwater from

Appellant water agencies. The Tribe also receives surface

water from the Whitewater River System, particularly the

Andreas and Tahquitz Creeks that sometimes flow nearby.

The surface water received from this system is consistent

with a 1938 California Superior Court adjudication—the

Whitewater River Decree—which attempted to address

state-law water rights for users of the river system. Because

the United States held the lands in trust, it participated in the

2

The CVWD estimates that surface water accounts for less than five

percent of its water supply each year. See CVWD, Urban Water

Management Plan at 3-20 (2005).

3

Overdraft occurs when the amount of water extracted from the

underground basin exceeds its recharge rate. CVWD, 2010–2011

Annual Review at 2.

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adjudication via a “Suggestion” on behalf of the Tribe and

the resulting state court order included a water allotment for

the Tribe’s benefit. 4 The amount of water reserved for the

Tribe from this adjudication, however, is minimal, providing

enough water to irrigate approximately 360 acres. Further,

most of this allotment is filled outside of the growing season

because the river system’s flow peaks between December

and March. Thus, groundwater supplied by the water

agencies remains the main source of water for all types of

consumption on the reservation throughout the year.

B

Given an ever-growing concern over diminishing

groundwater resources, the Agua Caliente Tribe filed this

action for declaratory and injunctive relief against the water

agencies in May 2013. The Tribe’s complaint requested a

declaration that it has a federally reserved right and an

aboriginal right to the groundwater underlying the

reservation. In June 2014, the district court granted the

United States’ motion to intervene as a plaintiff. The United

States also alleges that the Tribe has a reserved right to

groundwater.

The parties stipulated to divide the litigation into three

phases. Phase I, at issue here, seeks to address whether the

Tribe has a reserved right and an aboriginal right to

groundwater. According to the parties’ stipulation, Phase II

4

In providing this “Suggestion,” the government maintained that it

was not “submitting the rights of the United States . . . to the jurisdiction

of the Department of Public Works of the State of California” and that

the court lacked “jurisdiction [to adjudicate] the water rights of the

United States.” The federal government continues to maintain this

position before us.

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will address whether the Tribe beneficially owns the “pore

space” of the groundwater basin underlying the Agua

Caliente Reservation and whether a tribal right to

groundwater includes the right to receive water of a certain

quality. Finally, Phase III will attempt to quantify any

identified groundwater rights.

In March 2015, the district court granted in part and

denied in part Plaintiffs’ and Defendants’ cross motions for

partial summary judgment with respect to Phase I of the

litigation. In its order, the district court held that the reserved

rights doctrine applies to groundwater and that the United

States reserved appurtenant groundwater when it established

the Tribe’s reservation. 5 The district court then certified its

order for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b), and we granted the water agencies’ petition for

permission to prosecute this appeal.

II

The district court’s grant of summary judgment is

reviewed de novo. Tohono O’odham Nation v. City of

Glendale, 804 F.3d 1292, 1297 (9th Cir. 2015); Lopez v.

Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

Summary judgment is appropriate when there is no genuine

issue as to any material fact and the moving party is entitled

to judgment as a matter of law. Fed. R. Civ. P. 56(a);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48

5

The district court also held that the Tribe does not have an

aboriginal right to the groundwater. An aboriginal right is a type of

property right that derives from territorial occupancy of land. See United

States ex rel. Chunie v. Ringrose, 788 F.2d 638, 641–42 (9th Cir. 1986).

However, the Tribe did not appeal this issue, and we do not review it

here.

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(1986). A court shall grant summary judgment when, “under

the governing law, there can be but one reasonable

conclusion as to the verdict.” Anderson, 477 U.S. at 250.

III

Due to the unusual trifurcation of this litigation, we are

concerned on appeal only with Phase I—whether the Tribe

has a federal reserved right to the groundwater underlying its

reservation. This question, however, is best analyzed in

three steps: whether the United States intended to reserve

water when it created the Tribe’s reservation; whether the

reserved rights doctrine encompasses groundwater; and,

finally, whether the Tribe’s correlative rights under state law

or the historic lack of drilling for groundwater on the

reservation, or the water the Tribe receives pursuant to the

Whitewater River Decree, impacts our answers to these

questions. We address each in turn.

A

For over one hundred years, the Supreme Court has made

clear that when the United States “withdraws its land from

the public domain and reserves it for a federal purpose, the

Government, by implication, reserves appurtenant water

then unappropriated to the extent needed to accomplish the

purpose of the reservation.” Cappaert v. United States,

426 U.S. 128, 138 (1976) (citing U.S. Const. art. I, § 8; U.S.

Const. art. IV, § 3); see also Winters v. United States,

207 U.S. 564, 575–78 (1908); Colville Confederated Tribes

v. Walton, 647 F.2d 42, 46 (9th Cir. 1981).

In what has become known as the Winters doctrine,

federal reserved water rights are directly applicable “to

Indian reservations and other federal enclaves,

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encompassing water rights in navigable and nonnavigable

streams.” See Cappaert, 426 U.S. at 138. The creation of

these rights stems from the belief that the United States,

when establishing reservations, “intended to deal fairly with

the Indians by reserving for them the waters without which

their lands would have been useless.” Arizona v. California,

373 U.S. 546, 600 (1963); see also id. at 598–99 (“It is

impossible to believe that when Congress created the great

Colorado River Indian Reservation and when the Executive

Department of this Nation created the other reservations they

were unaware that most of the lands were of the desert

kind—hot, scorching sands—and that water from the river

would be essential to the life of the Indian people and to the

animals they hunted and the crops they raised.”).

Despite the longstanding recognition that Indian

reservations, as well as other reserved lands, require access

to water, the Winters doctrine only applies in certain

situations: it only reserves water to the extent it is necessary

to accomplish the purpose of the reservation, and it only

reserves water if it is appurtenant to the withdrawn land.

Winters, 207 U.S. at 575–78; Cappaert, 426 U.S. at 138.

Once established, however, Winters rights “vest[] on the date

of the reservation and [are] superior to the rights of future

appropriators.” Cappaert, 426 U.S. at 138.

B

1

Given the limitations in the Winters doctrine, we must

first decide whether the United States, in establishing the

Agua Caliente Reservation, impliedly reserved water. See

United States v. New Mexico, 438 U.S. 696, 701 (1978). We

conclude that it did. And although the parties and the district

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court focused on the application of the Winters doctrine to

groundwater specifically, their argument over the creation of

a federal reserved right—and, in particular, the relevance of

New Mexico to that question—depends on whether the Agua

Caliente Reservation carried with it a reserved right to water

generally. Whether the Tribe’s reserved right extends to the

groundwater underlying its reservation is a separate question

from whether the establishment of the reservation contained

an implicit right to use water.

In New Mexico, the Supreme Court emphasized that,

under the reserved rights doctrine, the government reserves

only “that amount of water necessary to fulfill the purpose

of the reservation, no more.” Id. (quoting Cappaert,

426 U.S. at 141). “Where water is only valuable for a

secondary use of the reservation, . . . the United States

[must] acquire water in the same manner as any other public

or private appropriator.” Id. at 702. In other words, New

Mexico established a “primary-secondary use” distinction.

Water is impliedly reserved for primary purposes. It is not,

however, reserved for secondary purposes. 6

The water agencies argue that New Mexico requires us—

when deciding if a reserved right exists at all—to determine

whether water is necessary to fulfill the primary purpose of

the Agua Caliente Reservation. If it is not, they argue, then

we are to conclude that Congress did not intend any water to

be impliedly reserved under a federal water right. Put

6

We have previously noted that New Mexico is “not directly

applicable to Winters doctrine rights on Indian reservations.” United

States v. Adair, 723 F.3d 1394, 1408 (9th Cir. 1983). However, it clearly

“establish[es] several useful guidelines.” Id. Thus, we consider its

application here.

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differently, the water agencies argue that New Mexico stands

for the proposition that water is impliedly reserved only if

other sources of water then available cannot meet the

reservation’s water demands. According to the water

agencies, if other sources of water exist—and the lack of a

federal right would not entirely defeat the purpose of the

reservation—then Congress intended to defer to state water

law and require the United States to obtain water rights like

any other private user.

New Mexico, however, is not so narrow. Congress does

not defer to state water law with respect to reserved rights.

Id. at 702, 715. Instead, Congress retains “its authority to

reserve unappropriated water . . . for use on appurtenant

lands withdrawn from the public domain for specific federal

purposes.” Id. at 698.

The federal purpose for which land was reserved is the

driving force behind the reserved rights doctrine. “Each time

[the] Court has applied the ‘implied-reservation-of-water-

doctrine,’ it has carefully examined both the asserted water

right and the specific purposes for which the land was

reserved, and concluded that without the water the purposes

of the reservation would be entirely defeated.” Id. at 700.

But the question is not whether water stemming from a

federal right is necessary at some selected point in time to

maintain the reservation; the question is whether the purpose

underlying the reservation envisions water use.

Winters itself established that the purpose of the

reservation is controlling. In Winters, the Supreme Court

addressed whether the federal government reserved water

for tribal usage at the Fort Belknap Indian Reservation,

which had been reserved by the United States “as and for a

permanent home” for several tribes. 207 U.S. at 565. The

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Winters Court observed that the arid tribal reservation would

be “practically valueless,” and that a civilized community

“could not be established thereon,” without irrigation. Id. at

576. Thus, the Court held that, in creating the reservation,

the United States simultaneously reserved water “for a use

which would be necessarily continued through years.” Id. at

577. The reserved right turned on the purpose underlying

the formation of the Fort Belknap Reservation.

Though it was decided seventy years after Winters, New

Mexico remains faithful to this construction. In analyzing

the reserved rights doctrine, the Court first sought to

determine Congress’ intent in creating the Gila National

Forest. New Mexico, 438 U.S. at 698. After reviewing the

congressional act that established the forest, the Court

determined that Congress intended only two purposes—“to

conserve the water flows, and to furnish a continuous supply

of timber for the people.” Id. at 707 (citation omitted). It

did not, however, reserve the forest lands for aesthetic,

environmental, recreational, or wildlife-preservation

purposes. Id. at 708. Thus, the Court deemed the latter uses

“secondary,” for which the reserved right did not attach, and

held that only “to fulfill the very purposes for which a federal

reservation was created . . . [did] the United States intend[]

to reserve the necessary water.” Id. at 702.

As such, 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. It also answered that

question by holding that water is reserved only for primary

purposes, those directly associated with the reservation of

land. It did not, however, eliminate the threshold issue—that

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a reserved right exists if the purposes underlying a

reservation envision access to water.

2

Because New Mexico holds that water is reserved if the

primary purpose of the reservation envisions water use, we

now determine the primary purpose of the Tribe’s

reservation and whether that purpose contemplates water

use. To do so, we consider “the document and circumstances

surrounding [the reservation’s] creation, and the history of

the Indians for whom it was created.” Walton, 647 F.2d at

47.

The Executive Orders establishing the Tribe’s

reservation declared that the land was to be set aside for “the

permanent use and occupancy of the Mission Indians” or,

more generally, for “Indian purposes.” 7 See supra Part I.

While imprecise, such a purpose is not indecipherable. Our

precedent recognizes that “[t]he specific purposes of an

Indian reservation . . . [are] often unarticulated. The

general purpose, to provide a home for the Indians, is a broad

one and must be liberally construed.” Walton, 647 F.2d at

47 (emphasis added). Moreover, “[m]ost of the land in these

reservations is and always has been arid,” and it is

impossible to believe that the United States was unaware

“that water . . . would be essential to the life of the Indian

people.” Arizona, 373 U.S. at 598–99.

7

Additionally, government reports preceding the Executive Orders

recognized the need to secure the Tribe “permanent homes, with land

and water enough.” See Comm’r of Indian Aff., Ann. Rep. 37 (1877).

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The situation facing the Agua Caliente Tribe is no

different. Water 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. Put

differently, the primary purpose underlying the

establishment of the reservation was to create a home for the

Tribe, and water was necessarily implicated in that purpose.

Thus, we hold that the United States implicitly reserved a

right to water when it created the Agua Caliente Reservation.

C

While we conclude that the federal government

envisioned water use when it established the Tribe’s

reservation, that does not end our inquiry. We must now

determine whether the Winters doctrine, and the Tribe’s

reserved water right, extends to the groundwater underlying

the reservation. And while we are unable to find controlling

federal appellate authority explicitly holding that the Winters

doctrine applies to groundwater, 8 we now expressly hold

that it does.

Apart from the requirement that the primary purpose of

the reservation must intend water use, the other main

limitation of the reserved rights doctrine is that the

8

We previously held that the Winters doctrine applies “not only [to]

surface water, but also to underground water.” United States v.

Cappaert, 508 F.2d 313, 317 (9th Cir. 1974), aff’d on other grounds,

Cappaert, 426 U.S. at 142. But on appeal, the Supreme Court did not

reach this question. See Cappaert, 426 U.S. at 142. In that case, the

peculiarities of the hydrological forms led the Court to conclude as a

question of fact that the reserved water in a cavern pool was surface

water, not groundwater. Id.

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unappropriated water must be “appurtenant” to the

reservation. See Cappaert, 426 U.S. at 138. Appurtenance,

however, simply limits the reserved right to those waters

which are attached to the reservation. It does not limit the

right to surface water only. Cappaert itself hinted that

impliedly reserved waters may include appurtenant

groundwater when it held that “the United States can protect

its water from subsequent diversion, whether the diversion

is of surface or groundwater.” Id. at 143. If the United States

can protect against groundwater diversions, it follows that

the government can protect the groundwater itself. 9

Further, many locations throughout the western United

States rely on groundwater as their only viable water source.

See, e.g., In re Gen. Adjudication of All Rights to Use Water

in Gila River Sys. & Source, 989 P.2d 739, 746 (Ariz. 1999)

(en banc) (“The reservations considered in [Winters and

Arizona] depended for their water on perennial streams. But

some reservations lack perennial streams and depend for

present and future survival substantially or entirely upon

pumping of underground water. We find it no more

thinkable in the latter circumstance than in the former that

9

Although the district court found that the groundwater contained

in the Coachella Valley aquifer “does not ‘add to, contribute to or

support’ any surface stream from which the Tribe diverts water,” that

does not mean that the hydrological cycle in the Coachella Valley has

been severed. See U.S. Geological Surv., Ground Water and Surface

Water: A Single Resource, U.S.G.S. Circular 1139 at 9–10 (1998)

(recognizing a connection between surface and groundwater even where

the water table falls below the stream bed). Further, we note that surface

water is used here to replenish groundwater sources. As such, the district

court may wish to hear expert opinion on the interconnectedness of the

waters in the valley in the later phases of this litigation. Proper factual

findings on this issue will allow the district court to fashion appropriate

relief during the quantification phase.

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the United States reserved land for habitation without

reserving the water necessary to sustain life.”). More

importantly, such reliance exists here, as surface water in the

Coachella Valley is minimal or entirely lacking for most of

the year. Thus, survival is conditioned on access to water—

and a reservation without an adequate source of surface

water must be able to access groundwater.

The Winters doctrine was developed in part to provide

sustainable land for Indian tribes whose reservations were

established in the arid parts of the country. And in many

cases, those reservations lacked access to, or were unable to

effectively capture, a regular supply of surface water. Given

these realities, we can discern no reason to cabin the Winters

doctrine to appurtenant surface water. As such, we hold that

the Winters doctrine encompasses both surface water and

groundwater appurtenant to reserved land. 10 The creation of

the Agua Caliente Reservation therefore carried with it an

implied right to use water from the Coachella Valley aquifer.

D

The final issue we must address is the contours of the

Tribe’s reserved right, including its relation to state water

law and the Tribe’s existing water rights.

A “reserved right in unappropriated water . . . vests on

the date of the reservation and is superior to the rights of

future appropriators.” Cappaert, 426 U.S. at 138. Further,

reserved rights are not analyzed “in terms of a balancing

10

The parties do not dispute appurtenance, nor could they. The

Coachella Valley Groundwater Basin clearly underlies the Tribe’s

reservation. See generally CVWD, Engineer’s Report on Water Supply

and Replenishment Assessment (2016–2017).

20 AGUA CALIENTE BAND V.

COACHELLA VALLEY WATER DIST.

test.” Id. Rather, they are federal water rights that preempt

conflicting state law. See Walton, 647 F.2d at 51–53; see

also New Mexico, 438 U.S. at 715 (“[T]he ‘reserved rights

doctrine’ . . . is an exception to Congress’ explicit deference

to state water law in other areas.”). Finally, the rights are not

lost through non-use. See Walton, 647 F.2d at 51. Instead,

they are flexible and can change over time. See id. at 47–48;

United States v. Ahtanum Irrigation Dist., 236 F.2d 321, 326

(9th Cir. 1956).

Despite the federal primacy of reserved water rights, the

water agencies argue that because (1) the Tribe has a

correlative right to groundwater under California law and

(2) the Tribe has not drilled for groundwater on its

reservation, and (3) because the Tribe is entitled to surface

water from the Whitewater River Decree, the Tribe does not

need a federal reserved right to prevent the purpose of the

reservation from being entirely defeated. Put differently, the

water agencies argue that, because the Tribe is already

receiving water pursuant to California’s correlative rights

doctrine and the Whitewater River Decree, a federal

reserved right is unnecessary.

However, the water agencies’ arguments fail for three

reasons. First, state water rights are preempted by federal

reserved rights. See Walton, 647 F.2d at 51; see also

Ahtanum Irrigation Dist., 236 F.2d at 329 (“Rights reserved

by treaties such as this are not subject to appropriation under

state law, nor has the state power to dispose of them.”).

Second, the fact that the Tribe did not historically access

groundwater does not destroy its right to groundwater now.

See Walton, 647 F.2d at 51. And third, the New Mexico

inquiry does not ask if water is currently needed to sustain

the reservation; it asks whether water was envisioned as

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COACHELLA VALLEY WATER DIST.

necessary for the reservation’s purpose at the time the

reservation was created. See supra Part III.B. Thus, state

water entitlements do not affect our analysis with respect to

the creation of the Tribe’s federally reserved water right.

IV

In sum, the Winters doctrine does not distinguish

between surface water and groundwater. Rather, its limits

derive only from the government’s intent in withdrawing

land for a public purpose and the location of the water in

relation to the reservation created. As such, because the

United States intended to reserve water when it established

a home for the Agua Caliente Band of Cahuilla Indians, we

hold that the district court did not err in determining that the

government reserved appurtenant water sources—including

groundwater—when it created the Tribe’s reservation in the

Coachella Valley.

Finally, we recognize that the district court’s failure to

conduct a thorough New Mexico analysis with respect to

whether the Tribe needs access to groundwater was largely

a function of the parties’ decision to trifurcate this case. We

also understand that a full analysis specifying the scope of

the water reserved under New Mexico will be considered in

the subsequent phases of this litigation.

Presumably, however, the water agencies will continue

to argue in these later phases that the Winters doctrine is

dependent upon the Tribe’s demonstrated need—that is,

need above and beyond what the Tribe is already receiving

under state-law entitlements or could receive through a

paramount surface water right. And 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

22 AGUA CALIENTE BAND V.

COACHELLA VALLEY WATER DIST.

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.

Each party shall bear its own costs.

AFFIRMED.