Long before the Rat Pack purchased homes in swinging Palm Springs, before there were wind farms as far as the eye can see, and before the Coachella Music Festival became the hipster music aficionado capitol of the world, the Agua Caliente Band of Cahuilla Indians farmed Coachella Valley lands. In fact, the Agua Caliente Band of Cahuilla’s reservation (established in 1876) is located on the Tribe’s ancestral homeland where the Tribe says they have lived and farmed since time immemorial. Today, the Coachella Valley is also home to several towns where incongruously the rich and famous still go to get away from Los Angeles and farming is still king.
Most of the residents and farms in the area get their water from the Desert Water Agency (DWA) or the Coachella Valley Water District (CVWD). And, according to the Tribe, they’ve been taking water that belongs to the Tribe. On May 14, 2013, the Tribe filed a Complaint for Declaratory and Injunctive Relief against the CVWD and DWA in the US District Court for the Central District of California (Case No. ED CV 13-00883 JGB-SPx) seeking the Court to “judicially recognize, declare, quantify and decree to the Tribe its prior and paramount reserved right to sufficient water underlying the Coachella Valley as is necessary to fulfill the aboriginal rights of the Tribe and its members, as well as the present and future homeland purposes of the Tribe’s Reservation and to enjoin Defendants from injuring the Tribe and its members by overdrafting the Upper Whitewater and Garnet Hill sub-basins of the Coachella Valley Groundwater Basin aquifer and degrading the groundwater quality or otherwise infringing upon the Tribe’s paramount reserved water rights.”
The Tribe’s allegation that its water right is superior to CVWD and DWA is based on the Winters Doctrine. In Winters v. U.S., 207 U.S. 564 (1908), the Court held that the US reserved water rights for Indian Tribes when their reservations were created. The Tribe alleges that its surface water rights were adjudicated in California Superior Court in 1938, in what is known as the Whitewater Adjudication. There, the Superior Court gave the US (on behalf of the Tribe as its appropriator) the equivalent of approximately 8,000 acre feet per year from the Tahquitz and Andreas Creeks, with priority dates in 1884 and 1893. The Tribe also claims that it has aboriginal rights to surface water and groundwater with priority dates of time immemorial.
The Tribe also alleges that its superior surface water rights feed the Coachella Valley Groundwater Basin (Basin), which is then pumped as groundwater by CVWD and DWA. The Tribe alleges injury due to overdraft which occurs because with both Defendants pumping groundwater from the Basin more groundwater is pumped than is being recharged. Finally, the Tribe alleges that the water quality of the Basin’s groundwater has been degraded as a result of CVWD and DWA importing Colorado River water to recharge the Basin. According to the Tribe, “[t]he pollution of the groundwater in the aquifer due to the reinjection of low quality Colorado River water has infringed and continues to infringe upon the ability of Tribe and its members to exercise effectively their federally reserved and protected right to that groundwater thereby causing and continuing to cause irreparable harm to the Tribe and its members.”
To resolve its claims, the Tribe is seeking to permanently enjoin CVWD and DWA from pumping groundwater from parts of the Basin and from using Colorado River water for recharge. If the Tribe is successful, the impact may felt far beyond the Coachella Valley. First, it would be one of only a handful of cases that have extended Winters rights to groundwater. Second, water importation or water banking projects in the Colorado River basin and across the country may be jeopardized or could potentially incur some liability resulting from the co-mingling of lower quality water with higher quality resident groundwater in an aquifer if it results in higher treatment costs, pumping costs, or other damages to water right holders.
