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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA - EASTERN DIVISION
HONORABLE JESUS G. BERNAL, U.S. DISTRICT JUDGE
AGUA CALIENTE BAND OF CAHUILLA ) INDIANS, ) )
PLAINTIFF, ) Case No. )
vs. ) EDCV-13-00883-JGB(SPx) )COACHELLA VALLEY WATER DISTRICT, )et al., ) ) DEFENDANTS. )__________________________________)
REPORTER'S TRANSCRIPT OF ORAL PROCEEDINGSMONDAY, MARCH 16, 2015
9:00 A.M.RIVERSIDE, CALIFORNIA
__________________________________________________________ADELE C. FRAZIER, CSR 9690, CRR, RMR
FEDERAL OFFICIAL COURT REPORTER3470 TWELFTH STREET
RIVERSIDE, CALIFORNIA [email protected]
UNITED STATES DISTRICT COURT
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APPEARANCES OF COUNSEL:
FOR THE PLAINTIFF:
KIRKPATRICK, TOWNSEND & STOCKTONBY: CATHERINE F. MUNSON607 Fourteenth Street, NW, Suite 900Washington, DC 20005
andKIRKPATRICK, TOWNSEND & STOCKTONBY: MARK H. REEVES1450 Greene Street, Suite 230Augusta, Georgia 30901
andALVARADO SMITH BY: DAVID J. MASUTANI633 West fifth Street, Suite 1100Los Angeles, California 90071
andNATIVE AMERICAN RIGHTS FUNDBY: STEVEN C. MOORE
HEATHER D. WHITEMAN RUNS HIM1506 BroadwayBoulder, Colorado 80302
FOR THE DEFENDANT COACHELLA VALLEY WATER DISTRICT:
REDWINE & SHERRILL BY: STEVEN B. ABBOT
GERALD D. SHOAFJULIANNA K. TILLQUIST
1950 Market Street Riverside, California 92501-1720
UNITED STATES DISTRICT COURT
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APPEARANCES OF COUNSEL: (Cont.)
FOR THE DEFENDANT DESERT WATER AGENCY:
BEST, BEST & KRIEGER BY: STEVEN G. MARTIN
RODERICK F. WALSTON2001 North Main Street, Suite 390Walnut Creek, California 94596
FOR PLAINTIFF IN INTERVENTION:
U.S. DEPARTMENT OF JUSTICEENVIRONMENTAL & NATURAL RESOURCES DIVISIONBY: YOSEF MULUGETA NEGOSE
DARON T. CARREIROPATRICK BARRY
P.O. Box 7611Ben Franklin StationWashington, DC 20004-7611
UNITED STATES DISTRICT COURT
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RIVERSIDE, CALIFORNIA; MONDAY, MARCH 16, 2015
9:00 A.M.
THE COURTROOM DEPUTY: Calling item 1, case number
EDCV 13-883-JGB, Agua Caliente Band of Cahuilla Indians vs.
Coachella Valley Water District.
MS. MUNSON: Catherine Munson for the Agua Caliente
Band of Cahuilla Indians.
THE COURT: Ms. Munson, good morning.
MR. NEGOSE: Good morning, your Honor. Yosef
Negose for the United States. I have with me co-counsel
Darren Carreiro and Pat Barry.
THE COURT: Good morning.
MR. WALSTON: Good morning, your Honor. Roderick
Walston representing the Desert Water Agency.
MR. ABBOTT: Good morning, your Honor. Steve
Abbott representing defendant Coachella Water District.
THE COURT: Good morning, Mr. Martin. Mr. Martin?
What is your name? I'm sorry, the person that just
identified himself.
MR. ABBOTT: Steve Abbott.
THE COURT: Very well, Mr. Abbot.
And Mr. Martin in the back, correct?
MR. MARTIN: Yes. I'm Steven Martin for Desert
Water Agency.
THE COURT: Very well. So there are four different
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motions for summary judgment in this case. Let's take this
in -- to the extent that we can, in some kind of logical
order. The parties have by stipulation, and by me granting
that stipulation, have divided this case into three separate
phases: The first phase, which we're dealing with today, is
the argument as to whether the Agua Caliente Tribe has
federally-implied water rights in the groundwater under the
Winters Doctrine. The second phase will be -- well, the
second issue within that is whether the tribal has aboriginal
rights to the groundwater. The phase two, which we'll take
up at a later time, if necessary, will deal with other issues
regarding, I guess, the quantification or other issues
regarding the water rights to the extent they exist.
So let's start -- who is going to be -- let's start
with the Government's motion first. Who is going to be
arguing on behalf of the government?
MR. CARREIRO: I will, your Honor.
THE COURT: As to the issue of the Winters
Doctrine, I don't want to replicate arguments, so he want one
person to be arguing, you know, on behalf of the plaintiffs
the rights under the Winters Doctrine, and the aboriginal
rights, I guess, could be a separate person.
But let's start with the person on behalf of the
plaintiff that is going to be arguing the extent or the issue
as to whether or not the rights under the Winters Doctrine
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apply, and whether those rights include the reservation of
groundwater as opposed to surface water. Who's going to be
making that argument?
MS. MUNSON: I am, your Honor.
THE COURT: Very well. On behalf of the defendant
who is going to be making that argument?
MR. WALSTON: I'll present that argument, your
Honor, Roderick Walston.
THE COURT: Let's start there. And perhaps we can
hear from the plaintiffs at this time.
As I understand it, there's the Winters Doctrine,
and the plaintiff's argument is that by the establishment of
the reservation that the tribe has reserved rights to the
water that is, I guess, necessary to carry out its function,
and that those rights include the rights to groundwater; is
that correct?
MS. MUNSON: That's right, your Honor.
THE COURT: And the basis for your assertion as to
that is both that the groundwater is necessary to carry out
the functions of the tribe and that it is appurtenant to the
the land owned by the tribe, correct?
MS. MUNSON: That's correct, your Honor.
THE COURT: Very well. So you may make your
argument. I do not intend to allow parties unlimited time to
argue, so please be concise. We're not going to argue for
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more than an hour. We may not argue for more than half an
hour, so don't -- try to be focused, and don't assume I'm
going to give you unlimited time to argue your points. Be
brief and concise and to the point.
MS. MUNSON: The parties had met beforehand and we
had agreed to give each other equal time, and we did want to
reserve time for rebuttal as well. I'll limit my remarks to
stay within that time frame.
THE COURT: Very well. You may proceed, then.
MS. MUNSON: Thank you.
Contrary to the defendant's portrayal, this case is
not novel and the issues raised in the parties' motion for
summary judgement are not difficult. Many other federal and
state courts have recognized the same rights that the United
States and Agua Caliente are seeking for this court to
recognize, and many courts have considered and rejected
precisely the same arguments the defendants are making in
response.
THE COURT: What Ninth Circuit authority has
determined that the reservation of water under the Winters
Doctrine includes groundwater rights?
MS. MUNSON: I think there's several cases. One is
the Kapert decision, which held the Winters Doctrine does, in
fact, include groundwater.
The most recent Ninth Circuit decision to address
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that issue is the case of Katie John vs. the United States,
and that's from 2013. And in that case the Ninth Circuit
engaged in a very detailed analysis of what water resources
are available to the United States with respect to its
reserve Winters rights, and it said that the Federal Water
Rights Doctrine allows the United States to exert rights over
water that is physically interrelated with the land. And
there can be no doubt that groundwater is physically
interrelated with the Agua Caliente Reservation land.
THE COURT: Was the issue there specifically
groundwater rights?
MS. MUNSON: The issue there was not groundwater
rights, but it did get into what types of resources the
water -- the United States could -- where the United States
could assert its water rights.
THE COURT: There's no holding specifically in that
case that the Winters Doctrine extends to groundwater rights?
MS. MUNSON: It doesn't address groundwater rights,
but it does say that, "The Reserve Rights Doctrine," and this
is I'm quoting, "holds within its potential scope all the
bodies of water on which the United States reserve rights
could at some point be enforced, i.e., those waters that are
or may become necessary to fulfill the purposes of the
federal reservation at issue."
THE COURT: That begs the question, though, right?
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It begs the question because the Winters Doctrine itself says
that the water that is reserved is the water that is
necessary to carry out the purpose of the tribe. So it seems
to be that's just a circular argument. It doesn't get to the
point of whether or not specifically groundwater is included
within the reservation of rights under the Winters
Doctrine.
MS. MUNSON: I think what the court -- that
decision holds, your Honor, is that it broadens the scope of
the Reserve Doctrine to hold within it any water resources
that could be necessary to establish the purposes of a
reservation, whether that's surface water or groundwater. It
simply does not matter. I mean, the court even says that,
the Reserve Rights does not even take on a geographic
dimension.
Until the United States asserts its rights, the
type of the water resource simply does not control. Winters
involved a nonnavigable stream.
THE COURT: Very well. If the standard is that the
extent of the water rights are limited by the -- sort of, the
water that, I guess, the reservation needs to function --
MS. MUNSON: Yes.
THE COURT: Correct?
MS. MUNSON: Yes, your Honor.
THE COURT: -- isn't that circular? Am I not
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making the determination that that's necessarily the case in
this case in deciding that -- that the Winters Doctrine
extends to groundwater? Isn't that jumping ahead a little
bit as to whether or not -- doesn't there need to be a
factual determination that any such water is, then, necessary
for the function of the tribe in order for me to find that
groundwater is part of the Reserve Rights for the tribe?
MS. MUNSON: Well, your Honor, I think that you
could in this -- based on the parties' motions, you could
hold that the -- that the tribe has a federally-reserved
right to water and that reserved right is not limited, and
does not exclude, groundwater as a legal matter. And I think
that gets us where we need to be to go to phase two and talk
about quantification.
THE COURT: Very well. That would be the ruling,
right? Not necessarily that the reservation of rights in
this particular case would include groundwater.
MS. MUNSON: That's right, your Honor. I mean, if
your Honor holds that as a legal matter the tribe's rights
could include groundwater, that gets us where we need to go
for quantification.
I would submit, however, our position is there is
enough evidence in the record to show the tribe does, in
fact, require water. The historical evidence shows at the
time the reservation was set aside there was not enough
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surface water to water the entire reservation. Justin
Colburn is the Indian agent who recommended the land that
would be included within the expanded reservation.
THE COURT: The problem I have with it is it seems
to me whether or not groundwater is included within the
reservation of rights under the Winters Doctrines would,
then, depend on any changed circumstances. So if you had
land that wasn't arid and had sufficient either rain or the
tribe could get water from other sources, then it seems to me
that, then, you wouldn't find that groundwater is reserved as
a water right under the Winters Doctrine because of that
changed circumstance. Do you understand what I mean?
One thing is to say under the Winters Doctrine that
the reservation of water rights is not limited to surface
water.
MS. MUNSON: Right.
THE COURT: Right? The other thing is to make
the -- the conclusion that, then, there needs to be, I guess,
a factual conclusion that any such use of groundwater is
necessary for the purposes of carrying out the tribe's
function.
MS. MUNSON: Right. I think what matters, your
Honor, is what the United States' intent was when it made the
reservation, and here there's adequate evidence that they
did, in fact, intend to reserve water without which the
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reservation could not -- the purpose of the reservation would
be defeated.
THE COURT: The last part is "without which the
purpose of the reservation would be defeated" is necessarily
a factual question, correct?
MS. MUNSON: I think -- the reservation of water
can -- the types of water simply does not matter. The United
States -- the Winters Doctrine extends to surface water. It
extends to underground pools. It has been held that in the
Kapert decision. It extends to nonnavigable water. Katie
John instructs the doctrine extends to whatever available
water is needed to meet the reservation's purposes.
Again, your Honor, to your point, we agree that if
your Honor were to rule that water was reserved for Agua
Caliente, and that that water right could include groundwater
resources, that that would be enough to get us to the next
phase where we would determine how much groundwater would be
needed or what types of water would be needed.
THE COURT: Very well.
So let me hear from the defendant on that point.
Under what authority do you contend that -- I guess we can
talk in the abstract -- that the Winters Doctrine reservation
of water right does not extend to groundwater? Why do you
assert that? I mean, you're saying in your argument -- in
your papers you're saying they don't have the right to that
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water because it's necessary for the function, but isn't that
just a phase two determination?
MR. WALSTON: Let me answer the question -- the
Court's question in two ways, your Honor. The first point is
that the supreme court in 1978 adopted a very narrow
interpretation of the Reserved Rights Doctrine. The court
held in that case that a reserved right exists only to the
extent that it's necessary to accomplish the primary purpose
of the reservation, without which the purpose of the
reservation would be entirely defeated.
So prior to New Mexico, the supreme court in
Winters and Arizona vs. California had adopted a fairly
expansive interpretation of the Reserved Rights Doctrine, but
in New Mexico the supreme court adopted a more narrow
interpretation.
Now, we think the main reason why the tribe in this
case does not meet the New Mexico narrow construction --
THE COURT: But didn't Walton in the Ninth Circuit
in 1981 just gave a more liberal tint to the general purpose
of the reservation? It suggested that future needs are
included and that it should be liberally construed. How do
you fit those two together?
MR. WALSTON: Well, I certainly -- Walton had some
language like that. But when it talked about future
reservation needs, the needs it was talking about were an
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expansion of the tribe's agricultural needs only. What the
court said in that case is the court would apply what is
called a practically irrigable acreage test -- a practically
irrigable acreage test -- rather than an actual irrigation
test.
THE COURT: Is it your contention that the function
that we're talking about here is strictly to be construed for
the irrigation of land and not for any other purpose? That's
the purpose of the reservation?
MR. WALSTON: That's true, your Honor. But one
could construe the reservation purpose fairly broadly and
even construe the tribe's fairly narrow -- reserved right
fairly broadly as well, but still come to the --
THE COURT: What is your contention how should it
be construed? How should general purpose be construed?
Should it be construed as the economic purposes of or the
economic welfare of the -- of the tribe apart from irrigation
or just subsistence purpose? Is the purpose just so subsist
or to prosper?
MR. WALSTON: To answer that question, your Honor,
you'd have to go back to the intent of the presidents in 1876
and 1877.
THE COURT: I want to know what you are contending;
I don't want to know what was contended 100 years ago.
MR. WALSTON: We think the reservation was created
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in order to give the tribe an opportunity to continue with
agricultural development and domestic use of water.
THE COURT: And that's it? That's the general
purpose --
MR. WALSTON: Right.
THE COURT: -- you're arguing me to adopt?
MR. WALSTON: Right. And the reason we believe
that the tribe does not have a reserved right for that
purpose is because it has a water right under California law
that is sufficient to meet that purpose. The tribe has a
correlative right under California law that's just like --
THE COURT: Isn't that argument, then, going to
phase two? Isn't that a factual determination as to whether
or not the groundwater is necessary for the general purpose
of the tribe and whether it's appurtenant to the land? Isn't
that a factual determination that I have not a developed
record which to make?
MR. WALSTON: We don't think it's a factual issue;
we think it's a legal issue. The legal issue would be framed
this way: If an Indian tribe has a right to use groundwater
under California law that is equal and correlative with the
rights of everyone else to use the same groundwater resource,
then the tribe under no circumstances, as a matter of law,
can claim a federal reserved right in that groundwater under
federal law. The whole purpose of the Reserved Rights
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Doctrine, your Honor, was to give Indian tribes something
that they did not have under state law. That happened in the
Winters case itself.
In Winters the Indian tribe in that case had no
water, and the reason was nonIndian appropriators had been
using the water under state law under the "first in time,
first in right" rule of priority of state law. So the tribe
had no water on its reservation.
Same factual situation in Arizona vs. California.
THE COURT: So you're asking me to adopt a rule or
a ruling in this case that says that the only time that the
Winters Doctrine applies is when the reservation has no
water?
MR. WALSTON: No. No. Just the converse, your
Honor. We're asking the Court to rule that as a matter of
law if an Indian tribe has the right to use groundwater under
California law, and it has an equal and correlative right to
use the groundwater with everybody else, then under those
circumstances, as a matter of law, there can be no
federally-reserved right.
THE COURT: I tend not to agree with you on that,
but I'll let the other side argue that point.
Your response to the correlative rights argument to
the extent that the tribe has an alternative, I guess, right
to use groundwater the same as any other property owner that
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vitiates the rights under the Winters Doctrine?
MR. CARREIRO: Your Honor, Darren Carreiro for the
United States. And based on prior agreement, we'd agreed
that I would address the rebuttal to defendant's argument.
THE COURT: Very well.
MR. CARREIRO: To answer your first question about
this state law and the protection of rights, whether the
tribe needs a federal right or state right, the first rule is
the reservation of water depends on necessity. And it's the
necessity of water; it's not a particular source. It's not a
particular right like a state right or a federal right; it's
whether water is necessary.
And if it is, John tells us that it has -- in the
words of the Ninth Circuit, quote, "It's immensely broad."
THE COURT: And necessary for what?
MR. CARREIRO: Necessity -- necessary to fulfill
the purposes of the reservation.
THE COURT: And how should that be construed? To
survive? To prosper?
MR. CARREIRO: It's a homeland purpose of the
reservation, to fulfill the present and future needs of the
tribes as a homeland.
THE COURT: I understand that. What does that
mean? Are we talking about general purpose? Survive? What
if there was so much water they could sell it for a profit
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and that would be an improvement to the reservation's
welfare; would that fit?
MR. CARREIRO: So your Honor, we separate out
reservation, which depends on necessity, and the next two
points are quantification and use.
Walton in the Ninth Circuit tells us that purposes
govern quantification. So if there is, as is often the case
in this period of history, reservation set aside for
agricultural use -- we have those in the documents in the
record -- you quantify that according to the agricultural
use. We believe there are other homeland and domestic
purposes, as there have been for other Indian reservation and
agricultural needs.
THE COURT: You're saying the general use is
primarily tied to agricultural use?
MR. CARREIRO: The purpose is a homeland. The
quantification and -- one of the purposes at that time --
it's an imperfect system, but I think courts, typically, turn
to agricultural, and they quantify it in terms of the
agricultural needs present and future of the tribe.
Then when you get to use, the Walton court answers
that, is that yes, the tribe is, then, limited to the
quantification and the quantification for a particular
purpose. If it's agricultural, it's agricultural. But in
terms of use, the tribe can then use that quantity of water
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for whatever use, and that fits in with the present and
future needs of the tribe.
THE COURT: It can be based on agricultural, but
you can use it any way you want?
MR. CARREIRO: That's correct, your Honor. That's
directly from the Ninth Circuit in Caldwell v. Walton.
THE COURT: Very well. So what about this argument
more specifically that the defendant has made about the
correlative rights of the tribe to use water the same as any
other entity and whether that vitiates the reservation of
rights under the Winters Doctrine?
MR. CARREIRO: It doesn't, your Honor. I think
it's contrary to the Winters Doctrine, and it's contrary to
the state's own statute in this case.
THE COURT: What authority do you have for that?
MR. CARREIRO: There's a state groundwater statute
that says the -- the legislature requires that
federally-reserved rights to groundwater shall be respected
in full. In the case of conflict federal law shall prevail.
Our position is that pretty much resolves phase one
of this case. As a legal matter, there's that. There's also
the doctrine that reserved rights arise without regard to the
equities that may favor competing water users.
But as a practical matter, the California system is
well suited for this. It's very similar to the Gila River
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adjudication. I recognize that that's an Arizona supreme
court case, but there you were dealing with very similar
groundwater law in terms of overlier rights and rights to
just pump your underground waters as an overlier. It was a
reservation in a densely-populated area, urban area, arid
environment, in an aquifer and severe overdraft, and the
court recognized the federal reserve right to groundwater
ther because reserved rights are governed by federal and
state law.
Plus, this unlimited right to pump or an equal
right to pump, the court recognized, wouldn't protect a
federally-reserved right, particularly in an aquifer that's
an overdraft.
THE COURT: Very well. I'll let you argue any
other issues. I mean to move on to the aboriginal rights
argument.
Are there any other issues either side wishes to
bring up with respect to this issue which is the extent to
which under the Winters Doctrine the groundwater rights are
reserved? You may summarize at this point.
MS. MUNSON: I did want to make one more point,
your Honor, to follow-up on what Mr. Carreiro said.
THE COURT: You may.
MS. MUNSON: You know, defendants are arguing that
state law was an adequate substitute for federal law. That's
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simply a violation of longstanding federal precedent which
bases the federally-Reserved Rights Doctrine and the
supremecy of that over state law on the United States
Constitution's property clause and the supremacy clause.
And also, your Honor, the California Correlative
Rights Doctrine is simply not an adequate substitute for
federally-reserved rights. It's important to remember that
federally-reserved rights cannot be lost by nonuse and are
not subject to diminishment by competing interests; whereas,
correlative rights are subject to equitable distribution and
also can be lost by nonuse. And this is something that the
defendants have conceded in their reply briefs.
It's simply not an adequate substitute. As
Mr. Carreiro pointed out, it's also not consistent with
California law.
THE COURT: Very well.
MS. MUNSON: The state legislature's spoken on
this. And the supreme court in Halot Creek has explained
because of the supremacy clauses and the property clauses of
the U.S. Constitution, the state cannot deprive the United
States of its federally-reserved water rights.
THE COURT: Very well.
I'll let you answer that -- Mr. Abbott, is it? Or
Mr. Stanton?
MR. WALSTON: Walston.
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THE COURT: Walston, I'm sorry.
MR. WALSTON: On the matter of the state statute,
that's the recently enacted groundwater statute that the
legislature enacted. And it provided in that statute that
the federal reserved rights in groundwater, if any, will be
respected. The federal law prevails overstate law in cases
of conflict, and that the statute is, quote, declaratory of
existing law. Because it's declaratory of existing law, it
did not create any new rights.
So it's up to this Court --
THE COURT: But isn't that an acknowledgment that
insofar as Winters rights are not dependent on reasonable
use? That that use would prevail over any kind of reasonable
use standard used under state law?
MR. WALSTON: If there's a conflict, yes. That's
the defendant's very argument, your Honor. If there is a
conflict between federal law and state law, federal law
prevails.
THE COURT: Isn't there a conflict between saying
you have reasonable use of the water and you have an absolute
right to subsistence of the water? Isn't that a conflict?
MR. WALSTON: We think there is no conflict because
the tribe has a right to use groundwater under California
law. If it has a right to use groundwater under California
of law to satisfy the reservation purpose, there can be no
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conflict between state law and the protection of the tribe's
reservation needs.
THE COURT: Except the water rights under federal
law and state law are defined differently.
MR. WALSTON: I'm sorry?
THE COURT: Except the water rights under federal
law and state law are defined differently.
MR. WALSTON: No, they're not. The tribe's
attorney just said that a correlative right under California
law, unlike a reserved right, can be lost by nonuse. That
statement is incorrect. There is abundant case authority
under California law saying that a correlative right cannot
be lost by nonuse. The reason that is so is because the
correlative right attaches to the land itself. So if the
holder of the land is not using groundwater for a year, a
decade, or a century, he hasn't lost the right. It cannot be
lost because the right attaches to the land
That's why the tribe's statement that the
correlative right is different from the federal right is
categorically wrong, because a correlative right under
California law cannot be lost by nonuse. In that respect
it's the same thing as a federally-reserved right, which also
cannot be lost by nonuse.
THE COURT: Very well. Let's move on to the issue
of aboriginal rights under the tribe's argument. Who's going
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to make that argument?
MS. MUNSON: Your Honor, the United States and the
tribe are intending to rest on our briefs with respect to the
aboriginal claim. Of course, we're happy to answer any
questions you may have. Obviously, our position is that
there has been no federal action to extinguish the tribe's
aboriginal rights to groundwater.
THE COURT: What about that Act of 1851 in which
there was a requirement that the -- that any claim to the
land be affirmatively made to the United States and there
would be a determination of those rights? Isn't that a break
in the rights that the tribe allegedly had?
MS. MUNSON: No, your Honor. Our position is that
the 1851 Act itself did not extinguish the tribe's rights.
In all of the cases that it was found that a tribe's
aboriginal rights were extinguished by that Act, there was a
competing land patent that had been issued by the Land
Commission. There had been a federal action that actually
extinguished the tribe's aboriginal rides.
In this case there is no competing Mexican land
grant. There has been no patent issued by the land
commission. There has been no act to extinguish the tribe's
aboriginal rights. No federal act has done that.
THE COURT: Let me ask a more general question.
What is the difference in terms of scope between the Winters
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Doctrine water rights and the aboriginal rights to water? Is
there any difference?
MS. MUNSON: Yes, your Honor. There is a
difference. The Winters right is based upon the United
States establishment of the reservation. It is intended
to -- it vests at the time of the reservation, and it is
quantified based upon the present and future needs of the
tribe. So it, typically, results --
THE COURT: The aboriginal rights would be
unlimited, then?
MS. MUNSON: That's the Winters right is based on
present and future rights. The aboriginal right is based
upon actual use at the time. So that would be for
substantially less amount of water. It's based upon the
amount of water that the tribe was using prior to the
establishment of its reservation and the time -- the priority
date is the time immemorial. We base that upon the Ninth
Circuit in Adare.
THE COURT: Let me hear from the other side on the
aboriginal rights argument.
MR. ABBOTT: Good morning, your Honor.
THE COURT: Good morning.
MR. ABBOTT: In response to the argument that there
were no proceedings before the land commission, the act
applies, by its own terms, even if no claim is presented. It
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says, "All the lands, the claims to which shall not have been
presented to the said commission within two years after the
date of the Act, shall be deemed held and considered as part
of the public domain of the United States." So there's no
need for an actual proceeding to have been held before the
land commission. The Act by its own terms cuts off all the
rights that should have been submitted.
The supreme court authority is clear that a claim
of aboriginal occupancy by a tribe is the kind of interest
that had to be presented by the commission or it would be
forfeit.
I would also note in the Thompson case, the Indian
Claims Commission case we cited to the Court, the court there
held that the Act cut off aboriginal rights.
THE COURT: Very well. So I'm comfortable with
that part of the argument. I'll give either side just a
couple of minutes to summarize or to add to their arguments
that they haven't been able to raise at this time. So
whoever wants to do that on either side is fine with me.
MR. ABBOTT: Can I start, your Honor, since I'm up
here?
THE COURT: It's only going to be one person,
either you or Mr. Walston.
MR. ABBOTT: It will be Mr. Walston.
THE COURT: Very well. Mr. Walston.
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MR. WALSTON: I'd like to just, briefly, summarize
on the merits and then I'd like to make a comment unrelated
to the merits.
First on the merits, as I've said before, the
supreme court in New Mexico adopted a narrow construction of
this doctrine of reserved rights. And it held that the
reserved right exists only under very limited circumstances,
and it did that to avoid a conflict between the Reserved
Rights Doctrine and state law.
In this case there is no conflict between federal
law and state law because the tribe has a correlative right
under California law to use all the groundwater necessary for
its reservation purposes. In the absence of a conflict,
there can be no federally-reserved right.
In addition to that, there are other reasons why
the tribe's reserved right claim must fail. First, the tribe
has an adjudicated water right under the 1938 White Water
River Decree that allows the tribe to use all the surface
water necessary for its reservation purposes. So for that
additional reason there is no necessity for the tribe to have
a reserved right in groundwater for that very same purpose.
In addition to that, the historical documents that
relate to the creation of the reservation back in the 1876 or
1870's demonstrated that the tribe was not using groundwater
at that time. Since the tribe was not using groundwater and
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only using surface water when the reservation was created,
that is a clear indication that the presidents, in reserving
these lands for the tribe, did not intend to give the tribe a
special reserved right in groundwater that would elevate its
rights above all other users of groundwater in California.
Finally, the tribe does not produce groundwater
today, does not even attempt to produce it, and that also
supports the conclusion that the tribe's claimed right in
groundwater is not necessary to satisfy the reservation
purpose. If it was necessary to satisfy the reservation
purpose, the tribe would be using the groundwater, but it's
not using it, and, therefore, it's not necessary.
So for those reasons we think that the tribe has
not demonstrated that it has a reserved right in groundwater
under federal law that trumps all other rights to ground
water use in California and that puts the tribe at the very
top of the heap rather than allowing the tribe to simply join
with others in sharing the resource equally.
Now, on unrelated to the merits I just have this
additional comment: If the Court rules for the defendants in
this case, the Court would, obviously, dismiss the tribe's
complaint and the United States's complaint. In that case
they would be expected to ask to, and would likely, file an
appeal directly with the Ninth Circuit.
If the Court rules, on the other hand, in favor of
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the plaintiffs in this case, then we, respectfully, ask the
Court to submit language or to provide language in its
decision that would allow us to take an interlocutory appeal
to the Ninth Circuit. 28 USC Section 1292(b) provides the
standard for an interlocutory appeal. That provision --
THE COURT: I know that standard.
MR. WALSTON: Right.
THE COURT: I am considering that in the event that
I rule a certain way. I haven't made up my mind specifically
what side I'm going to rule. That's one of the
considerations that I have.
MR. WALSTON: Thank you, your Honor.
THE COURT: Thank you.
MS. MUNSON: Thank you, your Honor. I'm going to
address some of the points that he made. Going back to the
statement about the tribe having adequate right under the
Correlative Rights Doctrine, I do want to point out the
Correlative Rights Doctrine, you can lose your rights through
prescriptive use, that is the prescriptive use by the other
party. That's the point the DWA concedes in its briefing.
It is not an adequate substitute for a federally-reserved
right. And as Mr. Carreiro pointed out, the Gila River
decision is a good example of that. There the Arizona
supreme court pointed to the fact that the aquifer there was
an overdraft to show that state law did not adequately
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protect the tribe's interest.
The other argument that you see in the briefings,
and we heard today, is the White Water River adjudication
somehow amounted to a reserved right for the tribe, and
that -- nothing could be further from the truth. The United
States did not submit to the jurisdiction of that board. The
board specifically excluded groundwater from the adjudication
because it didn't have jurisdiction over groundwater.
THE COURT: I'm familiar with that. That's not
where I'm going.
MS. MUNSON: Okay. The argument that Mr. Walston
was making is arguing that the tribe was not using goundwater
at the time of the reservation as a reason that it should not
be reserved. That is not consistent with the Winters
Doctrine. If you look back at the Winters case, the tribe in
that case was not using the Milk River at the time of the
establishment of the reservation, didn't start using it until
after the establishment of the reservation.
THE COURT: It was contrary to the general standard
that it should be used for its general purpose. So if the
general purpose changes or the water quantities change in
some way, it doesn't address whether or not groundwater
should be used as opposed to surface waters.
MS. MUNSON: If the tribes were limited to what
they were using at the time of the reservation, it would
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freeze them in time. It would defeat the purpose of the
Winters Doctrine, which is to allow for tribes to become
self-sufficient.
THE COURT: I agree with you on that.
MS. MUNSON: Okay. And then the other argument
that Mr. Walston makes is that it's somehow relevant that the
tribe is not producing groundwater or pumping groundwater as
indicating it's not somehow necessary. Well, the water
districts supply all of the water to the reservation. And in
the discovery responses that we filed it shows that 100
percent of the water that CVWD provides to the reservation is
groundwater and 85 to 95 percent of the water that DWA
provides to the reservation is groundwater. The total amount
of water that the reservation consumes each year is 10,000
acre feet of water. So the notion that the tribe doesn't
need groundwater today is just not consistent with the
record. To be honest, it's just not consistent with
reality.
THE COURT: Very well.
MS. MUNSON: The tribe needs it now, needed it at
the time of the establishment reservation, and because of
that, the Winters Doctrine applies in this case with just as
much force as it applies in any other case where it held the
tribe has federally-reserved right to groundwater.
It is a simple case. Just because it is a
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tremendously important case does not mean that it is
necessarily a difficult one.
THE COURT: Very well. I've heard enough, I think,
so the matter is submitted. I expect to issue a ruling
shortly on the issue. And I'll decide probably within the
week as to the issue.
What are -- are there any other -- I guess, any
other further proceedings will depend on the Court's ruling,
correct?
Are there any other hearings set at this time?
Have you worked out a schedule for any potential second phase
at this time?
MS. MUNSON: We're intending to do that after we
obtain a ruling from you, your Honor. I think we agreed to
meet and confer and then file a joint status report within
two weeks of that ruling.
THE COURT: Very well. So the matter stands
submitted at this time. Thank you, counsel.
MS. MUNSON: Thank you, your Honor.
MR. ABBOTT: Thank you, your Honor.
(Proceedings Concluded.)
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CERTIFICATE OF OFFICIAL REPORTER
I, ADELE C. FRAZIER, FEDERAL OFFICIAL REALTIME
COURT REPORTER, IN AND FOR THE UNTIED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA, DO HEREBY CERTIFY
THAT PURSUANT TO SECTION 753, TITLE 28, UNITED STATES CODE
THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE
STENOGRAPHICALLY REPORTED PROCEEDINGS HELD IN THE
ABOVE-ENTITLED MATTER AND THAT THE TRANSCIPT PAGE FORMAT IS
IN CONFORMANCE WITH THE REGULATIONS OF THE JUDICIAL
CONFERENCE OF THE UNITED STATES.
DATED THIS 24th DAY OF MARCH, 2015
/S/ ADELE C. FRAZIER
________________________________________
ADELE C. FRAZIER, CSR No. 9690, CRR, RMR
FEDERAL OFFICIAL COURT REPORTER
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