The Desert Sun from Palm Springs, California • A9

DESERT 9A 843 91 Ca ba zo nR In di CA 92 20 1 SULLIVAN SHUTTERSANDSTONE HunterDouglasDealer WECANINSTALL GRANITE INYOUR KITCHENINJUSTONEDAY! DS-0000404825 HONEYCOMBSHADES SOLARSUNSHADES POWERRISE WINDOWSHADINGS LUMINETTE PRIVACYSHEERS 760-340-4743 DS-0000408256 EnergySmartStyle: Rebates Vertiglide honeycombshade; ModernRomanshades; softshades; WESTDERMATOLOGY RANCHOMIRAGE PhysicianAssistant Callforyourappointmenttoday 760-969-5900 WESTDERMATOLOGY Improveyourskin. Learntoloveyourskin. TheM22IPLPhoto-rejuvenation offersvisibleimprovementfor andlaserhairremoval. PhysicianAssistant Hwy.111atCountryClubDr.•RanchoMirage DS-0000427270 DinnerIncludes 760 328-1161 the Coachella most important natural The decision is the first by a federal appeals court to directly address the question of whether water rights reserved by the federal government apply to groundwater as well as surface water. a powerful decision.

It will be studied by all of the many tribes that still have unresolved water rights issues, and I suspect it will be put to said Sarah Krakoff, aprofessor at the University of Colorado Law School. could open the door to more litigation, and then for existing disputes whether in litigation or settlement it will change the The Agua Caliente tribe sued the two water agencies in May 2013, seeking to assert rights to aportion of the groundwater and to gain greater influence in decisions about how the aquifer is managed. The tribe has accused the agencies of imperiling the desert aquifer by allowing its levels to decline over the years and by using saltier, less pure Colorado River water to offset the amounts drawn out. The water agencies have defended their efforts to manage the supply of groundwater and have insisted that water from the Colorado River meets all drinking water standards. The agencies said they filed the appeal seeking to protect the general right to water, and are now considering whether to petition for the Supreme Court to take up the case.

The water districts, which have 90 days to decide on their next steps, also have other options. They could seek a rehearing by the three-judge panel or take their appeal to the entire Ninth Circuit Court of Appeals. going to keep working toward the best outcome for the Mark Krause, general manager, said in a statement. groundwater basin should remain a shared public Now that the agencies have lost their appeal, the case is set to return to District Court for subsequent phases of the trial to determine how much groundwater the tribe is entitled to. Jim Barrett, general manager of the Coachella Valley Water District, said the case ultimately determine control over the With the decision, the Coachella Valley could eventually join a list of 23 other California groundwater basins that have been adjudicated by courts.

In such cases, a judge typically determines how much groundwater may be pumped from an aquifer by various parties. The decision also left various questions unresolved, including how the federally granted will be prioritized as California moves toward implementing the 2014 Sustainable Groundwater Management Act, under which local agencies are tasked with developing long-term plans for sustainable water use. Grubbe has said the case is about securing a at the for the Agua Caliente to have a voice in water management decisions. He said the decision is critical step toward how water will be responsibly managed in the In its lawsuit, the tribe criticized longstanding policies that have led to heavy pumping from the desert aquifer. Groundwater levels have declined over the years in much of the Coachella Valley as water has been used for expanding subdivisions, golf courses, resorts and farms.

The water agencies have used imported water from the Colorado River to partially offset those declines, and the water table has risen around groundwater recharge ponds in Palm Springs and La Quinta. The biggest declines in the levels in some areas 90-100 feet or more since the 1950s have occurred away from those ponds in the middle of the valley. The two water agencies say they have viable long-term plans to combat groundwater overdraft. questioned the reasons for suing, its financial motivations, and how it intends to use the water. could sell water back to the public, or it could use the water for any Desert Water Agency said in its statement.

could drive up rates for local residents and The Agua Caliente tribe, which has more than 400 members, owns the Spa Resort Casino in Palm Springs and the Agua Caliente Casino Resort Spa in Rancho Mirage, and has plans for new housing subdivisions on tribal land. The reservation spreads across more than 31,000 acres in a checkerboard pattern that includes parts of Palm Springs, Cathedral City, Rancho Mirage and the Santa Rosa and San Jacinto mountains. The U.S. Department of Justice has signed on as aparty to the lawsuit in support of the tribe. Other leaders of Native American tribes across the West have been closely watching the case.

Alist of tribes joined the case last year, backing the Agua Caliente in a brief. Those tribes include the Morongo Band of Mission Indians in California and the Spokane Tribe of Indians in Washington, as well as organizations such as the California Association of Tribal Governments. In arguments laid out in court documents, the two sides have cited details of the establishment in 1876 through an executive order by President Ulysses S. Grant, as well as a subsequent order by President Rutherford B. Hayes in 1877 setting aside additional lands for the tribe.

Both side also referred to a1908 Supreme Court decision, Winters v. United States, that affirmed that Indian tribes are entitled to sufficient water supplies for their reservations. The three-judge ap- peals court panel comprised of Circuit Judges Richard Tallman and Morgan Christen, and District Judge Matthew Kennelly in the opinionthat Winters doctrine does not distinguish between surface water and They also ruled that federally reserved rights, such as those held by the tribe, preempt state water rights. The judges said fact that the Tribe did not historically access groundwater did not destroy its right to groundwater Now that the court has found the tribe holds such rights, the next questions to settle will revolve around what those rights mean, how much water is involved and how those federal rights relate to the established state water rights system, said Leon Szeptycki, executive director of Stanford Water in the West program. He said one key question will be whether the decision entitle them to more water than they would be entitled to under traditional California property rights rules with respect to Surface water rights in California are based on a first-in- allocation system, but with groundwater, there is no such seniority system and the water is simply pumped from the ground by landowners.

The 2014 groundwater law lays out a process for local agencies to move toward sustainable management of their groundwater basins. Szeptycki said not yet clear whether the decision will give the tribe a sort of water right, or whether the tribe will now be at the front of the line among water users under the Sustainable Groundwater Management Act, or SGMA. tell from the decision exactly what the relationship between this federal reserved right and the state legal regime will be, especially since the state legal regime is sort of complicated and muddy to begin with, and then changing rapidly because of Szep- tycki said. clear that this federal right has some sort of superior status, but not at all clear what that means in terms of current groundwater rights holders and the current groundwater use The new groundwater law includes the most stringent requirements for areas deemed to be in In the Coachella Valley, state regulators have listed three aquifer sub-basins Indio, Mission Creek and San Gorgonio Pass as being priority. A fourth groundwater sub- basin, Desert Hot Springs, is classified by the state as being a lower priority.

Several local agencies, among them the Coachella Valley Water District and Desert Water Agency, have filed notices with the state to begin the process of becoming the designated sustainability in areas where they supply water. unclear what role the tribe may play in that process. Many lawyers and advocates for tribes had long assumed and hoped that the courts would rule the federally reserved water rights doctrine applied to groundwater as well as surface water, Krakoff said. The precedent-setting decision, she said, will now give tribes significantly more leverage in water rights litigation. Krakoff said the decision appear to have any bearing on other types of water-related disputes, such as the conflict over the Dakota Access Pipeline centering on tribal concerns about the potential pollution of surface water.

In the Coachella Valley, Krakoff said she expects the decision will more clarity for everyone about who has rights to water and how it should be tribe has said repeatedly throughout the case, what they want is a seat at the table. They just want to be left out of these Krakoff said. suspect that there is some concern and fear of a water grab or something to that effect. I very much doubt that that will happen, because the tribe every other actor in the valley wants a sustainable future for everybody and they recognize that very scarce and so they want to make decisions about allocation that are fair and Some officials of the water agencies have suggested that if the Agua Caliente tribe prevails, it could use the public drinking water supply for any purpose it chooses, such as opening a bottled water plant. Grubbe has denied those accusations, saying the lawsuit is aimed at safeguarding the water supply for all residents.

Grubbe argues the water districts have significantly degraded the quality of the groundwater by allowing Colorado River water, which has higher levels of dissolved salts and minerals, to seep down to the aquifer. He has suggested they should instead treat the imported water before allowing it to flow into the underground drinking water supply. Grubbe said in a statement Tuesday that the current practices not acceptable for long-term health and viability of the Coachella Valley water He said the leaders raised their concerns for years were repeatedly The lawsuit the only case involving a water district and the interests. In a separate opinion issued Tuesday, the appeals court also rejected the Desert Water challenge of a federal regulation that governs the leasing of Indian land. The water agency brought the lawsuit in 2013, fearing that language in the federal regulation could prevent it from collecting fees in areas where Agua Caliente Reservation land is leased to homeowners and businesses.

The court ruled that the language change did not prevent DWA from charging customers on leased Indian land without interference, though it stopped short of affirming that DWA has a right to collect those payments. Desert Sun reporter Rosalie Murphy contributed to this article. Ian James writes about water issues for The Desert Sun. Email: ian.james@desertsun Twitter: PHOTOS BY JAY DESERT SUN The Agua Caliente Reservation spreads across more than 31,000 acres in a checkerboard pattern that includes parts of Palm Springs, Cathedral City and Rancho Mirage. Agua Caliente tribal chairman Jeff Grubbe pauses near a stream in the Indian Canyons during an interview about the Coachella Valley's aquifer and the tribe's lawsuit.

Water Continued from 1A a powerful decision. It will be studied by all of the many tribes that still have unresolved water rights issues, and I suspect it will be put to SARAH KRAKOFF, University of Colorado Law School professor.