Tribal water rights preempt state laws, says Ninth Circuit

If you live in an area where water is plentiful, be happy. Here in the American West, where there is never enough water for everyone, the Ninth Court of Appeals has ruled water rights of Native American tribes preempt those of states. Apparently the court thought since the tribes were here first and it is their land, that they have a claim to crucial groundwater rights, as well as to surface water. Imagine that!

No one is quite sure what this means to the insanely convoluted skein of laws and agreements currently in use. It may go to the Supreme Court, who may or may not overturn it. There will be lawsuits. Many water players don’t want existing agreements renegotiated, and that’s exactly what recognizing tribal groundwater rights will do. This may seen arcane. It’s not. It’s actually a huge deal.

In March, the Ninth Circuit Court of Appeals gave a definitive answer in the affirmative, extending groundwater rights to a California tribe in the Coachella Valley around Palm Springs [The Agua Caliente Band of Cahuilla Indians]. The three-judge panel said the federal government, in establishing reservations, had impliedly earmarked groundwater for tribal use. The court took the additional step of explicitly saying a tribe’s federal groundwater rights preempt state law.

There were three significant findings in the appellate decision:

1) Tribes have a federal reserved right to groundwater on their land.
2) As federal water rights, they preempt conflicting state law.
3) The rights are not lost even if they haven’t been used in the past.

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