Federal Rights to Groundwater: An Update on the Agua Caliente Litigation - Part 2

Presented on Friday, September 15, 2017

You will learn how the current Agua Calliente case may have wide-reaching impacts on groundwater rights.

Indian tribes and federal reservations, such as national forests and national parks, often hold special “federal reserved water rights” in local rivers and streams. In 2013, the Agua Caliente Band of Cahuilla Indians sued two local water agencies in the area of Palm Springs, California, claiming that the Agua Caliente also holds a federal reserved water right in the local groundwater.

Earlier this year, the Ninth Circuit Court of Appeals agreed, holding that federal reserved water rights extend to groundwater and preempt state water rights.

The two water districts have asked the United States Supreme Court to review the case. And 10 states have filed a brief in support of Supreme Court review, arguing that the Ninth Circuit decision is “literally a watershed opinion washing away the authority and control that states have traditionally exercised over groundwater resources.”

This presentation will review the facts and legal issues involved in the Agua Caliente case, as well as the litigation's current status. The presentation also will discuss the potential implications of the litigation for groundwater managers elsewhere in the United States.

Steven C. Moore, Attorney
Native American Rights Fund, Boulder, CO
Steven C. Moore is a staff attorney for the Native American Rights Fund. In this capacity, he has represented Indian tribes in many substantive areas including the:

  • Federal reserved water rights for the Agua Caliente Band of Cahuilla Indians of California, the Tule River Tribe of California, the Nez Perce Tribe in Idaho, and the Kickapoo Tribe in Kansas
  • Protection of Native American sacred lands in Montana, Hawaii, Wyoming, Texas, and California
  • Repatriation of human remains in Colorado and Nebraska from museums and other institutions, and the protection of unmarked Native American graves in Colorado
  • Religious use of peyote by members of the Native American Church and protection of access to peyote on private lands in Texas
  • Rights of Native American prisoners in Utah, Idaho, and California to wear traditional long hair, possess religious articles, and have access to Native American spiritual leaders
  • Right of Native American students to wear eagle feathers at public high school graduations in California, North Dakota, and North Carolina, and to wear long hair in public schools in Louisiana
  • Enforcement of the federal trust responsibility in the areas of oil and gas production on Indian lands in Oklahoma and Indian health care in Montana
  • Right of reindeer herders in Alaska to sell reindeer products free of federal income taxation — the herds are held in trust by the United States.

Moore directed the Indian Law Support Center at NARF from 1983 through 1995, when Congress cut funding for all 17 national support centers from the budget of the Legal Services Corp. The center provided litigation and training support for the nation’s 25 Indian Legal Services programs. Moore and NARF continue that work today with other funding. He also established the Indigenous Peacemaking Initiative at NARF a decade ago.

He has served on the Colorado Commission of Indian Affairs since 1998 and the Advisory Committee to the Indian Law Clinic at the University of Colorado School of Law since its inception. Moore began his legal career as a Vista Volunteer helping to establish the Indian Law Unit of Idaho Legal Services, where he represented tribes and individual Indians in northern Idaho. He also represented the Confederated Salish and Kootenai Tribes of Montana in the early 1980s.

Moore is the 2008 recipient of the Pierce-Hickerson Award from the National Legal Aid and Defender Association of Washington, D.C., which honors outstanding contributions to the advancement and preservation of Native American rights. In May 2016, he received an Honorary Order of the Coif award from his alma mater, Colorado Law, for his service to Indian Country and to the Indian Law Program at the law school.

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