Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et al

MEMORANDUM in Opposition to MOTION for Summary Judgment as to Phase I Issues 85

C.D. Cal.December 5, 2014

1 RODERICK E. WALSTON (Bar No. 32675) roderick.walston@bbklaw.corn 2 STEVEN G. MARTIN (Bar No. 263394) steven.martin@bljklaw.com 3 BEST BEST & KRIEGER LLP 2001 N. Main Street, Suite 390 4 Walnut Creek, California 94596 Telephone: (925) 977-3300 5 Facsimile: (925) 977-1870 6 ARTHUR L. LITTLEWORTH (Bar No. 22041) arthur.littleworth@bbldaw.com 7 PIERO C. DALLARDA (Bar No. 181497) piero.dallarda@bbklaw.com 8 I3EST BEST & KRIEGER LLP 3390 University Avenue, Fifth Floor 9 P.O. Box 1028 Riverside, California 92502 10 Telephone: (951)686-1450 Facsimile: (951) 686-3083 (9(0 Attorneys for Defendant 12 DESERT WATER AGENCY (flW< UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA D L9ZZ 15 EASTERN DIVISION 16 AGUA CALIENTE BAND OF Case No. 5:13-cv-00883-JGB (SPx) CAHUILLA INDIANS, Judge: Hon. Jesus G. Bernal 17 Plaintiff, DESERT WATER AGENCY’S 18 OPPOSITION TO MOTION FOR v. SUMMARY JUDGMENT OF AGUA 19 CALIENTE BAND OF MISSION COACHELLA VALLEY WATER INDIANS 20 DISTRICT, et al., [Filed with: 21 Defendants. 1. Defendant Desert Water Agency’s Request for Judicial Notice 22 2. Declaration of Steven G. Martin 3 Desert Water Agency’s Appendix of Cited 23 Documents in Support of Opp. to MSJ of ________________________________ Agua Caliente Band of Mission Indians 24 Date: February 9, 2015 25 Time: 9:00 a.m. 26 Dept.: Courtroom 1 Action Filed: May 14, 2014 27 Trial Date: Feb. 3, 2015 28 01358.00008\9428817.2 DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 1 of 28 Page ID #:4665 1 TABLE OF CONTENTS 2 Page 3 I. THE TRIBE’S CLAIMED RESERVED RIGHT IN GROUNDWATER IS NOT NECESSARY TO ACCOMPLISH THE 4 PRIMARY PURPOSE OF THE TRIBE’S RESERVATION, AND THEREFORE THE TRIBE’S CLAIMED RIGHT DOES NOT 5 IMPLIEDLY EXIST 1 A. Under New Mexico, a Federal Water Right Is Reserved Only If6 “Necessary” to Accomplish the “Primary” Reservation Purpose 7 and Prevent This Purpose From Being “Entirely Defeated.’ 1 B. The Tribe’s Claimed Reserved Right in Groundwater Is Not 8 Necessary to Accomplish the Primary Purpose of the Tribe’s Reservation, and Therefore There Is No Basis for the Tribe’s 9 Claimed Reserved Right 4 1. The Tribe Has a Correlative Right to Use Groundwater10 Under California Law, and Therefore the Tribe’s Claimed Reserved Right Is Not Necessary to Accomplish the11 Primary Reservation Purpose 5 12 2. Other Circumstances of This Case Support the Conclusion That the Tribe Does Not Wave a Reserved 13 Right in Groundwater 8 L-(nw 14 C. Summary 12 II. THE TRIBE’S “HOMELAND” ARGUMENT IS NOT RELEVANT 15 IN DETERMINING WHETHER THE TRIBE HAS A RESERVED RIGHT IN GROUNDWATER 13 16 III. THE TRIBE DOES NOT HAVE AN ABORIGINAL RIGHT IN 17 GROUNDWATER 14 A. The Tribe’s Aboriginal Right Claim Conflicts With the 18 Reserved Rights Doctrine 15 1 B. The Tribe’s Aboriginal Right Claim Was Extinguished by the Land Claims Act of 1850 16 20 C. Barker Applies to the Tribe’s Aboriginal Right Claim Irrespective of Whether Its Claim is Based on a Spanish or 21 Mexican Land Grant 19 22 CONCLUSION 21 23 24 25 26 27 28 Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 2 of 28 Page ID #:4666 1 2 TABLE OF AUTHORITIES Page(s) 4 Cases 5 Agua Caliente Band ofMission Indians v. Riverside County, 6 442 F.2d 1184 (9th Cir. 1971) 10, 17 7 Arizona v. California, 8 373U.S.546(1963) 2, 11, 14 Barker v. Harvey, 10 181 U.S. 481 (1901) passim 11 California Water Service Co. v. Edward Sidebotham & Son, 12 224 Cal.App.2d 715 (1964) 6 13 Cappaert v. United States, 426U.S.128(1976) 2,15,1614 City ofBarstow v. Mojave Wat. Agency, $ 23 Cal.4th 1224 (2000) 6, 7 16 17 Colville Confederated Tribes v. Walton, 647 F.2d 42 (9th Cir. 1981) passim 18 Donnelly v. United States, 19 228U.S.243(1913) 19 20 In re Water ofHallett Creek Stream System, 21 44Ca1.3d448 (1988) 3 22 Katie John v. United States, 23 720 F.3d 1214 (9th Cir. 2013) 3, 12, 13 24 Katz v. Walkinshaw, 25 141 Cal. 116 (1903) 7 26 Lux v. Haggin, 69 Cal. 255 (1886) 6, 7 27 28 01358.00008\9428817.2 - 1 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 3 of 28 Page ID #:4667 1 Mattz v. Arnett, 2 412U.S.481 (1973) 19 3 Pasadena v. Aihambra, 4 33 Cal.2d 908 (1949) 6 People v. Shirokow, 26 Cal.3d 301 (1980) 5 6 United States v. Adair, 723 F.2d 1394 (9th Cir. 1983) 3, 4, 12, 16 8 United States v. Gerlach Live Stock Co., 9 339 U.S. 725, 70 S.Ct. 955, 94 L.Ed. 1231 (1950) 5 10 United States v. New Mexico, 11 438U.S.696(1978) 2,4,12,13 12 United States v. State Water Res. Cont. Bd., ‘3 182Ca1.App.3d82(1986) 5 6flLJ 14 United States v. Title Ins. & Trust Co., 265 U.S. 472 (1924) 2015 16 Winters v. United States, 207 U.S. 564 (1908) 2,5, 11 17 18 Statutes 19 Four Reservations Act, 13 Stat. 90 18 20 Land Claims Act of 1851, 9 Stat. 631 16 21 Other Authorities 22 Clark, Groundwater Legislation in Light of the Experience in the 23 Western States, 22 Mont. L. Rev. 42, 50 (1960) 7 24 25 26 27 28 01358.00008\9428817.2 - 2 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 4 of 28 Page ID #:4668 1 DESERT WATER AGENCY’S OPPOSITION TO TRIBE’S 2 MOTION FOR SUMMARY JUDGMENT Desert Water Agency (“DWA”) submits this opposition to the motion for summary judgment of the Agua Caliente Band of Mission Indians (“Tribe”). The Tribe and the United States make several similar arguments in their motions for 6 summary judgment, and this memorandum responds to arguments primarily made ‘ by the Tribe, although the memorandum will make reference to the United States’ 8 arguments where appropriate. DWA will file a separate memorandum responding to arguments primarily made by the United States.1 10 I. THE TRIBE’S CLAIMED RESERVED RIGHT IN GROUNDWATER IS NOT NECESSARY TO ACCOMPLISH THE PRIMARY PURPOSE 12 OF THE TRIBE’S RESERVATION, AND THEREFORE THE TRIBE’S CLAIMED RIGHT DOES NOT IMPLIEDLY EXIST. 13 U) 14 A. Under New Mexico, a Federal Water Right Is Reserved Only If “Necessary” to Accomplish the “Primary” Reservation Purpose 15 and Prevent This Purpose From Being “Entirely Defeated.” 16 The Tribe and the United States argue that a federal reservation of land 17 automatically includes the reservation of a water right, and therefore that the 18 presidential executive orders of 1876 and 1877 that created the Tribe’s reservation 19 necessarily reserved a right in groundwater. Tribe Mem. 5, 6; U.S. Mem. 4-5. The 20 Tribe asserts, for example, that a “[rleservation of lands for Indians. . . necessarily 21 includes reservation of water rights,” Tribe Mem. 17, and “[tjhe only material facts 22 23 As used in this memorandum, “Tribe Mem.” refers to the Tribe’s memorandum of points and authorities in support of its motion for summary judgment (Doc. 85-1); 24 “U.S. Mem.” refers to the United States’ memorandum of points and authorities in 25 support of its motion for summary judgment (Doc. 83); “DWA Mem.” refers to DWA’ s memorandum of points and authorities in support of its motion for 26 summary judgment (Doc. 84-1); “DWA SUF” refers to DWA’ s Statement of 27 Undisputed Facts in support of its Motion for Summary Judgment (Doc. 84-2); and “RJN” refers to DWA’s Request for Judicial Notice in support of its Motion for 28 Summary Judgment (Doc. 84-5). 01358.00008\9428817.2 - 1 - DWAOPP. TOMSJ-AGUACALIENTEBAND 5:13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 5 of 28 Page ID #:4669 1 necessary to establish this right are set forth in the orders establishing the 2 reservation,” id. at 6. 3 Contrary to the Tribe’s and the United States’ argument, a federal reservation 4 of land does not automatically include the reservation of a water right. Rather, 5 whether the water right is reserved depends on whether the right is necessary to 6 accomplish the primary purpose of the particular reservation, taking into account 7 Congress’ policy of deference to state water law. 8 9 Although the Supreme Court expansively interpreted the reserved rights 10 doctrine in Winters v. United States, 207 U.S. 564 (1908), and Arizona v. 11 California, 373 U.S. 546 (1963), the Supreme Court adopted a more narrow 12 interpretation in Cappaert v. United States, 426 U.S. 128 (1976), holding that a 13 federal reserved right is impliedly reserved only if “necessary” to accomplish the o-z 14 reservation purpose. Cappaert, 426 U.S. at 138. Two years later, in United States 15 v. New Mexico, 438 U.S. 696 (1978), the Supreme Court substantially narrowed the 16 reserved rights doctrine even further. There, the Supreme Court held that 17 Congress’ policy of deference must be taken into account in determining whether a 18 federal water right is impliedly reserved, and that a federal water right is impliedly 19 reserved only if “necessary” to accomplish the “primary” reservation purpose and 20 prevent this purpose from being “entirely defeated.” New Mexico, 438 U.S. at 702, 21 citing California v. United States, 438 U.S. 645, 653-670, 678-679 (1978); DWA 22 Mem. 11-13. The Court held that the United States must acquire water for 23 “secondary” reservation purposes under state law, in the same manner as public and 24 private appropriators. New Mexico, 438 U.S. at 702. Applying its narrow 25 interpretation of federal reserved water rights, and taking into account Congress’ 26 deference to state water law, the New Mexico Court held that the federal 27 government did not impliedly reserve water for instream uses in the Gila National 28 Forest in New Mexico. New Mexico, 438 U.S. at 707-7 17. 01358.00008\94288 17.2 - 2 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 6 of 28 Page ID #:4670 1 The Ninth Circuit recently reaffirmed that New Mexico adopted a narrow 2 interpretation of federal reserved water rights. Katie John v. United States, 720 3 F.3d 1214 (9th Cir. 2013). In Katie John, the Ninth Circuit stated that New Mexico 4 adopted a “narrow rule” concerning federal reserved rights, and that New Mexico 5 “held that federally reserved waters are limited to the primary purposes for which 6 the land was reserved, without which the ‘purposes of the reservation would be 7 entirely defeated.” id. at 1226 (original emphasis). Similarly, the California 8 Supreme Court has stated that New Mexico adopted a “narrow construction” of the 9 reserved rights doctrine because of the congressional policy “of deferring to state 10 water law.” in re Water of Hallett Creek Stream System, 44 Cal.3d 448, 461 11 (1988). 12 The Ninth Circuit has held that the limitations of the reserved rights doctrine 13 . . . expressed in New Mexico apply to Indian reserved rights, particularly the limitation i3o 14 that a federal water right is reserved oniy if “necessary” to accomplish the 15 2 “primary” purpose of the reservation rather than “secondary” purposes. Colville 16 Confederated Tribes v. Walton, 647 F.2d 42, 47 (9th Cir. 1981); United States v. 1.7 Adair, 723 F.2d 1394, 1408-1409 (9th Cir. 1983). Thus, whether a federal water 18 right is reserved for an Indian reservation must be determined on a reservation-by- 19 reservation basis, taking into account whether the claimed right is necessary to 20 serve the “primary” reservation purpose as opposed to “secondary” purposes, and 21 also taking into account Congress’ policy of deference to state water law. 22 23 Neither the Tribe nor the United States mention the Supreme Court’s 24 decision in New Mexico-even though New Mexico is the leading decision that 25 defines a federal reserved right-other than citing New Mexico in a single sentence 26 for the assertion that a federal reserved right is an “exception” to Congress’ policy 27 28 01358.00008\94288 17.2 - 3 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-008 83-JOB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 7 of 28 Page ID #:4671 1 of deference to state water law. Tribe Mem. 9; U.S. Mem 17.2 Although New 2 Mexico significantly limited the circumstances under which a federal water right 3 can be impliedly reserved-including the limitation that a federal reserved right 4 applies only to the “primary” reservation purpose and not “secondary” reservation 5 purposes-neither the Tribe nor the United States acknowledge that these 6 limitations apply to the Tribe’s claimed reserved right. Although the Ninth Circuit 7 in Walton and Adair held that New Mexico’s limitations on reserved rights apply to 8 Indian reserved rights claims, Walton, 647 F.2d at 47; Adair, 723 F.2d at 1408- 9 1409, neither the Tribe nor the United States acknowledge that the Ninth Circuit 10 adopted these limitations or that they apply to the Tribe’s claim. Indeed, neither the 11 Tribe nor the United States define the “primary” purpose of the Tribe’s reservation 12 as distinguished from the “secondary” purposes, or how the Tribe’s claimed 13 reserved right is necessary to serve the “primary” reservation purpose. The Tribe’s 6IflW 14 and the United States’ failure to discuss or even mention New Mexico-the leading ZZ 15 decision that defines a federal reserved right, and that substantially limited the 16 reserved rights doctrine-amply demonstrates the fallacy of their argument that the 17 Tribe has a reserved right in groundwater here. 18 B. The Tribe’s Claimed Reserved Right in Groundwater Is Not 19 Necessary to Accomplish the Primary Purpose of the Tribe’s Reservation, and Therefore There Is No Basis for the Tribe’s 20 Claimed Reserved Right. 21 22 As we now explain, the Tribe’s claimed reserved right in groundwater is not 23 necessary to accomplish the primary purpose of the Tribe’s reservation, and 24 therefore there is no basis for the Tribe’s claimed reserved right in groundwater. 25 2 As DWA has explained, although New Mexico held that a federal reserved right- 26 once created-is an “exception” to Congress’ policy of deference to state law, 438 27 U.S. at 715, New Mexico also held that Congress’ policy of deference must be taken into account in determining whether a federal reserved right was created in the first 28 instance, id. at 700-702. DWA Mem. 14 n. 8. 0135800008\94288172 - 4 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 8 of 28 Page ID #:4672 1 Indeed, the Tribe and the United States do not argue anywhere in their memoranda 2 that the Tribe’s claimed reserved right is in groundwater is necessary to accomplish 3 the primary purpose of the Tribe’s reservation, and neither makes any reference to 4 Congress’ policy of deference to state water law. 1. The Tribe Has a Correlative Right to Use Groundwater 6 Under California Law, and Therefore the Tribe’s Claimed Reserved Right Is Not Necessary to Accomplish the Primary Reservation Purpose. 8 9 First, the rationale of the reserved rights doctrine does not support its 10 application to the groundwater in this case, because the Tribe has a correlative right to use groundwater under California law necessary to satisfy its reservation needs.11 jG) 12 Under the doctrine of prior appropriation that applies to surface waters in tiJj< bJEuO California and other western states, the first appropnator of surface water has -‘ < 14 . . . . . ,, . . . . ,,priority over subsequent appropriators, to be first in time is to be first in right. United States v. Gerlach Live Stock Co., 339 U.S. 725, 746, 70 S.Ct. 955, 94 L.Ed. 16 1231 (1950); People v. Shirokow, 26 Cal.3d 301, 308 (1980); United States v. State 17 Water Res. Cont. Bd., 182 Cal.App.3d 82, 102 (1986). Under the “first in time, first 18 in right” rule of priority, non-Indian appropriators generally acquired prior rights as 19 against Indian tribes in surface waters appurtenant to the tribes’ reservations, 20 because the non-Indian appropriators generally began using the water before the 21 tribes began using it. Walton, 647 F.2d at 46. The reserved rights doctrine was 22 developed, as in Winters and Arizona, in order that Indian tribes would have prior 23 rights in appurtenant surface waters under federal law even though non-Indian 24 appropriators had acquired prior rights under state appropriation laws. DWA Mem. 25 15-17. 26 27 The doctrine of correlative rights that applies to groundwater in California is 28 fundamentally different from the prior appropriation doctrine that applies to surface 01358.00008\94288 17.2 - 5 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 9 of 28 Page ID #:4673 1 waters, because the correlative rights doctrine is not based on the “first in time, first 2 in right” rule of priority that applies to the surface waters. Under the correlative 3 rights doctrine, overlying landowners have equal and correlative rights in 4 groundwater underlying their lands, and the correlative rights attach directly to the 5 lands, in the same sense that riparian rights in surface waters attach to the lands; 6 therefore, the “first in time, first in right” rule of priority that applies to 7 appropriation of surface waters does not apply to the correlative rights of overlying 8 landowners in groundwater. See, e.g., City ofBarstow v. Mojave Wat. Agency, 23 9 Cal.4th 1224, 1240-1241 (2000); Pasadena v. Aihambra, 33 Cal.2d 908, 924 10 (1949); DWA Mem. l5-l9. Therefore, the Tribe, as an overlying landowner of its ii reservation, has an equal and correlative right to use groundwater underlying its 12 reservation, and-since the right attaches directly to the land-the right remains (n 13 intact even though the Tribe does not use or attempt to use groundwater. There is 14 no conflict between Congress’ policy of deference to state law and the Tribe’s ZZ 15 reservation needs as applied to the use of groundwater, because both goals can be 16 achieved by application of California law. Since the Tribe has a correlative right to 17 use groundwater under California law, the Tribe’s claimed reserved right is not 18 necessary to accomplish the primary purpose of the Tribe’s reservation, and thus 19 does not impliedly exist. 20 21 Under California law, a landowner’s right to use groundwater underlying his land is analogous to the landowner’s riparian right to use surface waters appurtenant to 22 his land; the rights in both instances are based on the landowner’s “ownership” of 23 the land and attach directly to the land, and therefore such rights cannot be lost by nonuse of water. Barstow, 23 Cal.4th at 1240-1241; California Water Service Co. 24 v. Edward Sidebotham & Son, 224 Cal.App.2d 715, 725 (1964). As the California 25 Supreme Court stated in its landmark decision in Lux v. Haggin, 69 Cal. 255, 391 (1886), in describing riparian rights: “The right to the flow of the water is 26 inseparably annexed to the soil, and passes with it, not as an easement or 27 appurtenant, but as a parcel. Use does not create it, and disuse cannot destroy or suspend it.” (Original emphasis.) 28 01358.00008\9428817.2 - 6 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 10 of 28 Page ID #:4674 1 California is the only western state that recognizes the doctrine of correlative 2 rights as applied to groundwater. See Clark, Groundwater Legislation in Light of 3 the Experience in the Western States, 22 Mont. L. Rev. 42, 50 (1960) (hereinafter 4 “Clark, Groundwater Legislation”).4 California adopted the correlative rights 5 doctrine in 1903, in the California Supreme Court’s landmark decision in Katz v. 6 Walkinshaw, 141 Cal. 116, 134-136 (1903). Barstow, 23 Cal.4th at 1240-1241. 7 Other western states recognize other doctrines as applied to groundwater; most 8 states recognize the doctrine of appropriation,5some recognize the doctrine of 9 “reasonable use,” and some recognize the English common law, which is based on 10 absolute ownership of overlying landowners to the use of groundwater. Clark, 11 Groundwater Legislation, at 50; D. Tarlock, LAW OF WATER RIGHTS AND 12 RESOURCES 409 (J. Damico et al. eds. 2014) (stating that Idaho, Kansas, Montana, 13 Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington, 14 and Wyoming apply the doctrine of prior appropriation to groundwater). For zz 15 example, the State of Washington adopted a statutory appropriative system for 16 groundwater in 1945, which requires an appropriator to acquire a permit to use 17 groundwater; under the 1945 legislation, “the [Washington] Legislature rejected 18 both the correlative rights and the reasonable use doctrines and extended the prior 19 appropriation principles of the surface water code to ground waters.” Office of 20 21 Professor Clark’s article contains a chart, Chart B, on page 50, which describes the doctrines followed by the western states as of 1959 regarding rights in 22 percolating groundwater. Although other western states are listed as following the 23 English common law, the reasonable use doctrine and the appropriation doctrine as applied to groundwater, California is the only western state listed as following the 24 correlative rights doctrine. Id. For the Court’s convenience, a copy of Professor 25 Clark’s article is attached hereto as Appendix 1. 26 5California also recognizes appropriative rights as applied to groundwater, but the 27 rights of appropriators to use groundwater are junior, i.e., subordinate, to the correlative rights of overlying landowners to use groundwater. Barstow, 23 Cal.4th 28 at 1241. 0135800008\9428817.2 -7- DWAOPP.TOMSJ-AGUACALIENTEBAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 11 of 28 Page ID #:4675 1 Attorney General, “An Introduction to Washington Water Law” V:9 (Jan. 2000), 2 attached to DWA Request for Judicial Notice, as Exhibit 1. Since California, 3 unlike other western states, has adopted the correlative rights doctrine as applied to 4 groundwater, the Tribe has a correlative right to use groundwater under California 5 law to satisfy its reservation purpose, and thus its claimed reserved right is not 6 necessary to satisfy the primary reservation purpose. 2. Other Circumstances of This Case Support the Conclusion 8 That the Tribe Does Not Have a Reserved Right in Groundwater. 9 10 Apart from the fact that the Tribe has a correlative right to use groundwater 11 under California law, other circumstances of this case also support the conclusion 12 that the Tribe does not have an implied reserved right in groundwater. LJ”Jo 13 First, the Tribe does not produce or attempt to produce groundwater from its :LJO 14 * reservation. DWA SUF No. 1. Instead, the Tribe purchases its water supplies from 15 2 the defendant water agencies, who produce the water from their own wells. DWA 16 SUF No. 2. Obviously if the Tribe’s claimed reserved right in groundwater were 17 necessary to satisfy the primary purpose of its reservation, the Tribe would produce, 18 or at least attempt to produce, the groundwater. The Tribe’s failure to produce or 19 attempt to produce groundwater demonstrates that the Tribe’s claimed reserved 20 right is not necessary to accomplish the primary reservation purpose. DWA Mem. 21 21-22. Although the Tribe’s complaint alleges that the Tribe and its members “rely 22 on the groundwater resource to satisfy domestic, cultural, commercial, and other 23 homeland purposes,” Tribe Compi. ¶ 51, p. 14, the Tribe’s complaint fails to 24 mention that the “groundwater” on which it relies is provided by the defendant 25 water agencies, DWA and CVWD. DWA SUF No.2. 26 27 28 01358.00008\9428817.2 - 8 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3CV-OO883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 12 of 28 Page ID #:4676 1 In addition, the 1938 Whitewater River Decree that adjudicated water rights 2 in the Whitewater River and its tributaries awarded the United States all of the 3 Whitewater River surface water that the United States represented was necessary to 4 satisfy the Tribe’s reservation needs, and thus the Decree provided the Tribe with 5 sufficient surface water to meet the reservation needs. DWA SUF No. 12. Again, 6 this demonstrates that the Tribe’s claimed reserved right in groundwater is not 7 necessary to accomplish the reservation purpose, much less the primary purpose. 8 DWA Mem. 24-25. 9 The historical government documents and reports relating to creation of the 10 Tribe’s reservation also indicate that the Tribe does not have a reserved right in 2co 11 groundwater. These historical documents and reports made no mention of the 12 Tribe’s use of or dependency on groundwater, DWA SUF No. 4, which indicates 13 . . . that Presidents Grant and Hayes, in issuing the executive orders creating the 14 reservation, did not “impliedly” intend to reserve a right in groundwater. DWA 15 2 Mem. 22-24. The Mission Indians Relief Act, which authorized creation of the 16 Tribe’s reservation, provided that the Tribe would be supplied with “sufficient 17 quantity of water for irrigating and domestic purposes,” RJN 233, and-since the 18 government documents and reports indicated that the Tribe relied on the surface 19 waters of the Tahquitz and Andreas Creeks for water for irrigation and domestic 20 purposes, CVWD SUF No. 27-the 1891 Act intended that the Tribe would have 21 surface water supplies rather than groundwater supplies for this purpose. The 22 Smiley Commission report of 1891 stated that the Tribe’s members “have depended 23 largely upon water coming from Toquitch Canyon” and had “built a ditch to bring 24 water from the source for their lands” and also “had a supply of water coming from 25 Andreas Canyon,” RJN 105, which further indicates that the Tnbe relied on surface 26 water supplies but not groundwater. 27 28 01358.00008\94288 17.2 - 9 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 13 of 28 Page ID #:4677 1 Additionally, public policy considerations-which are relevant in 2 determining whether Presidents Grant and Hayes “impliedly” intended to reserve a 3 right in groundwater in issuing their executive orders-weigh heavily against any 4 “implication” that the Tribe has a reserved right in groundwater. If the Tribe has a 5 paramount reserved right in groundwater, as the Tribe claims, such a right would 6 impair California’s system of groundwater regulation by exempting the Tribe from 7 the principles and requirements of California law that apply to other users of 8 groundwater, particularly the “reasonable use” requirement and the “correlative 9 rights” principle, DWA Mem. 19-21; would have an impact on groundwater uses 10 outside the boundaries of the reservation, id. at 25-26; and would impair the 11 defendant water agencies’ ability to effectively manage the groundwater resource in JLfl . . . . 12 the Coachella Valley, by limiting their ability to ensure that the resource is 13 available to all, id. at 26-27. oz 14 Moreover, the Tribe’s reservation is unique, and the uniqueness of the 15 2 reservation also weighs against the Tribe’s reserved right claim. The Tribe’s 16 reservation forms a checkerboard pattern of lands in and near the City of Palm 17 Springs, in which tribal lands, which are located on even-numbered sections, are 18 interspersed with non-tribal lands, which are located on odd-numbered sections. 19 Agua Caliente Band ofMission Indians v. Riverside County, 442 F.2d 1184, 1185 20 (9th Cir. 1971); DWA Mem. 2, 26. Most of the Tribe’s reservation lands have been 21 allotted to the Tribe’s members rather than retained for the Tribe’s own use, DWA 22 Mem. 2, and many of the allotted lands are owned by or leased to non-Indians. Id.; 23 DWA SUF No. 20. Because of these unusual circumstances, more than 20,000 24 people reside on the Tribe’s reservation, RJN 244-245, even though the Tribe had 25 only about 70 members at the time of the Smiley Commission report in 1891, RJN 26 104, and has only about 440 members today. Martin Dec., Exh. 3, at 13. In short, 27 the Tribe’s reservation is unique because the tribal lands are interspersed with non 28 01358.00008\9428817.2 - 10 - DWA OPP. TO MSJ- AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 14 of 28 Page ID #:4678 1 tribal lands in a checkerboard pattern, many tribal lands are owned or leased by 2 non-Indians engaged in business and other activities unrelated to tribal purposes, 3 and most people who reside on the tribal lands are non-Indians rather than Indians. 4 Because of these unique circumstances, the Tribe’s reservation is unlike other 5 Indian reservations where Indian reserved water rights have been upheld, such as 6 Winters, Arizona and Walton, which involved very large, wholly intact Indian 7 reservations that had been set aside exclusively for tribal purposes, such as 8 agriculture, hunting and fishing. Winters, 207 U.S. 564 (Fort Belknap Indian 9 reservation in Montana); Arizona, 373 U.S. at 599-601 (Indian reservations along 10 the Colorado River); Walton, 647 F.2d at 46-47 (Colville Indian Reservation in ii Washington). It is highly unlikely that Presidents Grant and Hayes, in issuing the 12 executive orders creating and expanding the Tribe’s checkerboard reservation, nt:i< 13 impliedly intended that the Tribe would be exempt from California laws that apply 14 to neighboring groundwater users, because the Tribe’s use of groundwater would ZZ 15 necessarily have significant impacts on the rights and interests of the neighboring (J 16 users. 17 In Walton, for example, the Ninth Circuit, in holding that the Colville Indian 18 Tribe had a reserved right in a creek flowing across the Tribe’s reservation, stated 19 that the creek was “located entirely with the reservation” and thus the Tribe’s use 20 of the waters would have “no impact off the reservation.” Walton, 647 F.2d at 53. 21 Conversely, the Tribe’s production of groundwater here, were it to occur, would 22 affect the availability of groundwater supplies on neighboring groundwater users, 23 simply because of the checkerboard pattern of the lands. DWA SUF No. 17. The 24 unique circumstances of the Tribe’s reservation, and particularly the interspersion 25 of tribal and non-tnbal lands, weigh heavily against the conclusion that the Tribe 26 has an implied reserved right in groundwater. DWA Mem. 25-26. 27 28 01358.00008\9428817.2 - 11 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 15 of 28 Page ID #:4679 1 C. Summary 2 In sum, the Tribe and the United States fail to demonstrate-or even argue- 3 that the Tnbe’s claimed reserved right in groundwater meets the New Mexico 4 standard, which provides that a reserved right exists oniy if “necessary” to 5 accomplish the “primary” reservation purpose and prevent it from being “entirely 6 defeated.” New Mexico, 438 U.S. at 700, 702; Katie John, 720 F.3d at 1226. The 7 Tribe and the United States do not even mention the New Mexico standard, much 8 less acknowledge that it applies to the Tribe’s reserved right claim. The Tribe and 9 the United States do not identify the “primary” purpose of the Tribe’s reservation as 10 distinguished from “secondary” purposes, or explain why the Tribe’s claimed HO reserved right is necessary to accomplish the primary purpose. Most significantly, 12 the Tribe and the United States do not argue that the Tribe’s correlative right to use 13 . . . groundwater under California law is inadequate to accomplish the primary 14 reservation purpose, and that a federal reserved right is necessary for this purpose. 15 0 16 Thus, the Tribe and the United States have failed to establish that the Tribe’s 17 claimed reserved right in groundwater meets the necessary elements of a federal 18 reserved right, as these elements were defined in New Mexico and reaffirmed in 19 Katie John. The Tribe’s claimed right in groundwater is, at most, a “secondary” 20 reservation purpose, and the Tribe must acquire its right to use water for 21 “secondary” reservation purposes under state law. New Mexico, 438 U.S. at 700, 22 702; Walton, 647 F.2d at 47; Adair, 723 F.2d at 1408-1409. Accordingly, the 23 Tribe’s and the United States’ motions for summary judgment should be denied, 24 and their complaints should be dismissed. 25 Indeed, the Court might properly deny the Tribe’s and the United States’ 26 motions and dismiss their complaints without even reaching the question whether 27 the reserved rights doctrine applies to groundwater. Since the Tribe and the United 28 01358.00008\9428817.2 - 12 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 16 of 28 Page ID #:4680 1 States have failed to demonstrate that the Tribe’s claimed right meets the necessary 2 elements of a reserved right, irrespective of whether the right is in surface water or 3 groundwater, it may be immaterial whether the reserved rights doctrine even 4 applies to groundwater. II. THE TRIBE’S “HOMELAND” ARGUMENT IS NOT RELEVANT IN 6 DETERMINING WHETHER THE TRIBE HAS A RESERVED RIGHT IN GROUNDWATER. 7 The Tribe argues that its reservation was created as a “permanent homeland” 8 for the Tribe, with the nght of “permanent use and occupancy.” Tribe Mem. 2-3, 9 16-18. Regardless of whether the Tnbe’s reservation was created as a “homeland,” 10 this does not answer the question whether the Tribe has a reserved right in )(O 2 groundwater. The question whether the Tribe has a reserved right in groundwater 12 depends on whether the claimed right is “necessary” to accomplish the “primary” 13 . . purpose of the Tribe’s reservation and prevent it from being “entirely defeated.” 14 New Mexico, 438 U.S. at 700, 702; Katie John, 720 F.3d at 1226. The Tribe’s 15 2 “homeland” argument, first, does not define the “primary” reservation purpose as 16 distinguished from the “secondary” purposes, and second, does not address whether 17 the Tribe’ s claimed reserved right in groundwater is “necessary” to accomplish the 18 “primary” reservation purpose and prevent it from being “entirely defeated.” On 19 the contrary, the Tribe’s claimed reserved right in groundwater does not meet the 20 New Mexico standard, as explained above and in DWA’ s earlier memorandum, 21 DWA Mem. 15-22, and neither the Tribe nor the United States argue otherwise. 22 Therefore, the Tribe’s “homeland” argument does not support the Tribe’s reserved 23 right claim. 24 25 The Tribe also argues that its claimed reserved right was “fully vested” on 26 the date that its reservation was created, Tribe Mem. 12, and also that the Tribe may 27 “expand” its use of water and that its right may “grow. . . over time” as necessary 28 01358.00008\9428817.2 - 13 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-008g3-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 17 of 28 Page ID #:4681 1 to meet the Tribe’s “present and future needs.” Tribe Mem. 13. Although the 2 Tribe’s argument is both internally inconsistent and wrong on the merits,6 the 3 question of whether the Tribe’s claimed reserved right may “expand” and “grow” 4 relates to the quantification of the Tribe’s claimed right, which will be addressed in 5 the Phase 3 proceeding, assuming that this case reaches that phase, and is not 6 addressed in this Phase 1 proceeding, which addresses only the question whether 7 the Tribe has a reserved right. 8 THE TRIBE DOES NOT HAVE AN ABORIGINAL RIGHT IN 9 GROUNDWATER. 10 The Tribe argues that it has an aboriginal right in groundwater based on its longstanding “use and occupancy” of the reservation lands. Tribe Mem. 18-23. 12 Regardless of whether Indian tribes have aboriginal rights in other contexts, such as 13 fishing and hunting, the Tribe does not have an aboriginal right to divert and use 14 surface water or groundwater, for several reasons. D (flZZ ________________________ 158 6 First, the Tribe’s argument that its right may “expand” and “grow” to meet 16 “future needs” is inconsistent with its argument that its right was “fully vested” on 17 the date that the reservation was created. A right that is “fully vested” on one date cannot continue to “expand” and grow” thereafter. Otherwise, the Tribe would 18 have a limitless and open-ended reserved right that could never be fully quantified 19 at any particular point in time. Neither the Supreme Court nor the Ninth Circuit have ever upheld such a limitless and open-ended reserved right as that claimed by 20 the Tribe here. Second, although the Ninth Circuit has held that an Indian reserved 21 right may take into account the Indians’ “need to maintain themselves under changed circumstances,” Colville Confederated Tribes v. Walton, 647 F.2d 42, 47 22 (9th Cir. 1981), the Ninth Circuit in that case held that the Indian reserved right was 23 measured by the “practically irrigable acreage” standard that the Supreme Court adopted in Arizona v. California, 373 U.S. 546, 599-600 (1963), and thus the 24 Indians’ need to “maintain themselves under changed circumstances” related to 25 how much acreage on the reservation is “practically irrigable” rather than how much was actually being irrigated when the reservation was created. Walton, 647 26 F.2d at 47. Thus, to the extent that the Tribe’s right, assuming it exists, may 27 “expand and grow,” this means only that the Tribe’s right is not limited to the acreage actually being irrigated when the reservation was created, but rather that the 28 Tribe’s right may encompass “practically irrigable acreage” as well. 01358.00008\94288 17.2 - 14 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 18 of 28 Page ID #:4682 1 A. The Tribe’s Aboriginal Right Claim Conflicts With the Reserved 2 Rights Doctrine. 3 First, the Tribe’s claimed aboriginal right conflicts with the reserved rights doctrine. The Supreme Court developed the reserved rights doctrine as applied to Indian rights in order that Indians would have prior rights in appurtenant waters 6 under federal law even though non-Indian appropriators had acquired prior rights under state appropriation laws. Walton, 647 F.2d at 46. The Supreme Court also 8 imposed limitations on the reserved rights, however, in order to minimize the impacts on state water laws and on holders of state-based water rights. Under these 10 limitations, a federal reserved right applies only to “unappropriated” waters, “vests on the date of the reservation,” and is “superior to the right of future appropriators.” 12 Cappaert v. United States, 426 U.S. 128, 138 (1976). The Tribe’s claimed aboriginal right would not be subject to these limitations; the aboriginal right would I: 1., L(flLJ 14 have a “time immemorial” priority date, would apply to both appropriated and I 15 unappropriated waters, and would be superior to the right of all appropriators and 16 not justfuture appropriators. Thus, the Tribe’s aboriginal right claim conflicts with 17 the reserved rights doctrine as applied to Indian water rights, because the aboriginal 18 right would not be subject to limitations that apply to reserved rights and that were 19 developed to limit the impacts on state water laws and state-based water rights. The 20 Tribe’s aboriginal right theory would cause disruption of California’s water rights 21 laws and dislocation of state-based water rights, because the Tribe’s aboriginal right 22 would prevail over water rights that were acquired under California law even before 23 the Tribe’s reservation was created. 24 If the Tribe has an aboriginal water right based on its longstanding 25 occupancy of its reservation lands, as the Tribe argues, presumably most Indian 26 tribes in America would also have aboriginal water rights based on their 27 longstanding occupancy of their reservation lands. Thus, the Tribe’s aboriginal 28 01358.00008\94288 17.2 - 15 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 19 of 28 Page ID #:4683 1 rights theory would cause disruption of state water laws and dislocation of state- 2 based rights not only in California, but also throughout the nation. Indeed, if Indian 3 tribes have aboriginal rights based on their longstanding occupancy of their 4 reservation lands, there would be no basis for the reserved rights doctrine as applied 5 to Indians to even exist, because the Indians’ aboriginal rights would always give 6 them more than their reserved rights. Not surprisingly, no court has ever held that 7 an Indian tribe has an aboriginal right to divert and use water.7 Notably, the United 8 States in its memorandum does not argue that the Tribe has an aboriginal water 9 right. B. The Tribe’s Aboriginal Right Claim Was Extinguished by the Land Claims Act of 1850. 12 Apart from the fact that the Tribe does not have an aboriginal water right, the 13 Tribe’s claim that it has such a right was extinguished under the Land Claims Act LU)UJ of 1851, 9 Stat. 631 (RJN 226). In Barker v. Harvey, 181 U.S. 481 (1901), the - Supreme Court held the 1851 Act extinguished Indian aboriginal land claims in N 16 California based on pre-war Spanish and Mexican land grants, including the claims 17 ‘ Although the Tribe states that the Ninth Circuit’s decision in United States v. 18 Adair, 723 F.2d 1394 (9th Cir. 1984), is the “leading case” that supports the Tribe’s 19 aboriginal right theory, Tribe Mem. 19, Adair held only that an 1864 treaty granted the Kiamath Indian Tribe in Oregon an aboriginal water right to support its “fishing 20 and hunting rights” with a “time immemorial” priority date. Adair, 723 F.2d at 21 1413-1415. Adair is distinguishable here not only because the Kiamath Tribe’s rights were based on an 1864 treaty not applicable here, but also because Adair- 22 although holding that the Indian tribe had an aboriginal right to hunt and fish-did 23 not hold that the tribe had an aboriginal right to divert and use water. DWA Mem. 33 n. 16. If Adair were somehow construed as establishing an aboriginal Indian 24 right to divert and use water, Adair would conflict with Supreme Court decisions 25 defining the scope of the reserved rights doctrine, particularly New Mexico and Cappaert. Id. Also, even if arguendo the Tribe has an aboriginal right to divert 26 and use water, the Tribe’s aboriginal right has been lost by its failure to exercise its 27 right. Cf. Adair, 723 F.2d at 1414 (nothing that tribe’s hunting and fishing rights were “currently exercised” to maintain a livelihood). 28 01358.00008\94288 17.2 - 16 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 20 of 28 Page ID #:4684 1 of the Mission Indians. DWA Mem. 34-35. Since the Tribe’s aboriginal water 2 right claim is based on its claim of permanent occupancy of its reservation lands, 3 the Supreme Court’s decision in Barker precludes the Tribe from asserting its 4 aboriginal water right claim. 5 The Tribe argues that its abonginal claims were not extinguished by the 1851 6 Act as interpreted in Barker, because the Tribe, although “often characterized” as 7 part of the Mission Indians, is in fact not part of the Mission Indians because it was 8 not “missionized,” and therefore its rights were not affected by the 1851 Act or 9 Barker. Tribe Mem. 2 1-22. Regardless of how the Tribe now characterizes itself,8 10 the United States characterized the Tribe as part of the Mission Indians during all 11 relevant periods pertaining to creation of the Tribe’s reservation, and thus the uj’)O) Tribe’s rights were affected by the 1851 Act as interpreted in Barker. President 13 . . . . Grant, in issuing his 1876 executive order creating the Tribe’s reservation, set aside 14 lands for the “Agua Caliente,” which lands were “reserved for the permanent use 15 and occupancy of the Mission Indians in southern California.” RJN 65. President 16 Hayes, in issuing his 1877 executive order expanding the borders of the Tribe’s 17 reservation, set apart the lands “for certain of the Mission Indians.” RJN 66. The 18 Mission Indians Relief Act of 1891, 26 Stat. 712, which expressly applied to the 19 “Mission Indians,” authorized the Secretary of the Interior to investigate the 20 conditions of the “Mission Indians” of California and “select a reservation of each 21 band or village of the Mission Indians.” RJN 231. The Secretary selected a 22 commission, formally known the “Mission Indian Commission” and otherwise 23 known as the Smiley Commission, to examine the conditions of the “Mission 24 __________________________ 25 8 The Tribe characterized itself as a “Band of Mission Indians” in an action brought by the Tribe against Riverside County challenging the County’s possessory interest 26 tax, according to the title of the Tribe’s action in the reported decision. Agua 27 Caliente Band ofMission Indians v. County of Riverside, 442 F.2d 1184 (9th Cir. 1971). 28 01358.00008\94288 17.2 - 17 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5: 13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 21 of 28 Page ID #:4685 1 Indians.” RJN 233. One of the bands of Mission Indians that the Smiley 2 Commission examined was the “Agua Caliente.” RJN 104. The Smiley 3 Commission’s report contained a lengthy analysis of the Agua Caliente’s 4 reservation conditions and needs. RJN 104-109. The Smiley Commission 5 recommended that certain “lands be set aside as a Reservation, to be called Agua 6 Caliente.” RJN 107. The Smiley Commission submitted its report to the Secretary 7 in 1891, RJN 72, which was approved by the President in 1891, RJN 172-173, and 8 by Congress in 1892. 27 Stat. 61(1892); DWA Mem. 3-4. 9 Thus, all relevant historical documents-the presidential executive orders of 10 1876 and 1877 creating and expanding the Tribe’s reservation, the Mission Indians C)(D Relief Act authorizing creation of the Tribe’s reservation, and the Smiley 12 Commission report that studied the Tribe’s conditions and circumstances-clearly 13 . regarded the Tribe as part of the “Mission Indians.” The Tribe’s belated attempt to 14 rewrite history by characterizing differently than in the past does not allow the 15 Tribe to avoid the consequences of the 1851 Act as interpreted in Barker.9 16 17 Indeed, if the Tribe were not part of the Mission Indians when the Tribe’s 18 reservation was created, there would be no legal basis for the Tribe’s reservation to 19 exist. In 1864, Congress enacted a statute, the Four Reservations Act, 13 Stat. 90, 20 which authorized the President to “set aside not exceeding four tracts of land, 21 The Tribe also argues that the 1851 Act does not apply to the Tribe because 22 section 16 provides that the Act applies only to Indians who “had come under the 23 influence and instruction of the Catholic Padres.” Tribe Mem. 21. In fact section 16 merely states that the Land Commission has a “duty” to ascertain “the tenure by 24 which the mission lands are held, and those held by civilized Indians, and those 25 who are engaged in agriculture and labor of any kind, and also those which are occupied and cultivated by Pueblos or Rancheros Indians.” 9 Stat. 634 (1851) 26 (RJN 229). Although section 16 requires the Land Commission to investigate these 27 circumstances, nothing in the provision suggests that the 1851 Act does not apply to the Tribe. 28 01358.00008\9428817.2 - 18 - DWA OPP. TO MSJ- AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 22 of 28 Page ID #:4686 1 within the limits of said state [California], to be retained by the United States for 2 the purposes of Indian reservations.” RJN 216 (emphasis added). Thus, the 3 President was authorized to select four Indian reservations in California, no more. 4 One of the reservations that the President selected was for the Mission Indians 5 (although the President selected several reservations for different bands of the 6 Mission Indians). Mattz v. Arnett, 412 U.S. 481, 493-494 (1973); Donnelly v. 7 United States, 228 U.S. 243, 258 (1913). Pursuant to their authority in the 1864 8 act, Presidents Grant and Hayes issued their executive orders establishing and 9 expanding the Tribe’s reservation. RJN 65-66. If the Tribe were not part of the 10 Mission Indians when the executive orders were issued, Presidents Grant and Hayes 11 would have lacked authority under the 1864 Act to issue the executive orders 12 establishing and expanding the Tribe’s reservation, and there would be no legal 13 basis for the Tribe’s reservation to exist. 0 W 14 C. Barker Applies to the Tribe’s Aboriginal Right Claim Irrespective 15 of Whether Its Claim is Based on a Spanish or Mexican Land 2 Grant. 16 The Tribe argues that Barker does not apply to the Tribe’s aboriginal right 17 claim because its claim is not based on a Spanish or Mexican land grant. Tribe 18 Mem. 21. On the contrary, Barker fully applies to the Tribe’ s claim irrespective of 19 whether it is based on such a land grant. 20 21 In Barker, certain non-Indian plaintiffs claimed title to a parcel of land in San 22 Diego County based on a Mexican land grant, and the defendants, who were 23 members of the Mission Indians, claimed a superior right to the land, based on their 24 occupancy of the land prior to the Mexican land grant. Barker rejected the Indians’ 25 claim. First, Barker held that-if the Indians’ occupancy claims were based on a 26 Spanish or Mexican land grant-the claims had been “abandoned,” because they 27 had not been presented to the Land Commission as required by the 1851 Act. 28 01358.00008\9428817.2 - 19 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 23 of 28 Page ID #:4687 1 Barker, 181 U.k. at 491. Second, Barker held that-if the Indians were instead 2 claiming occupancy rights based on their occupation of the lands prior to the 3 Mexican land grant-their claims must also fail, because the Indians’ claims would 4 mean that lands occupied by Indian tribes would not be “part of the public domain 5 and subject to the full disposal of the United States,” and thus anyone who acquired 6 public domain lands from the United States would acquire nothing more than “a 7 naked fee.. . burdened by an Indian right of permanent occupancy.” Id. at 491- 8 492. 9 Barker thus made clear that the lands of the Mission Indians in California are 10 part of the public domain and thus subject to “full disposal” by the United States, (0 which was the predicate for the 1876 and 1877 presidential executive orders that set 12 aside a portion of the public domain lands for the Tribe’s reservation. If the Tribe 13 . . . . has an aboriginal right in its lands based on its longstanding occupancy of the lands, 14 there would be no basis for the 1876 and 1877 executive orders creating and 15 2 expanding the Tribe’s reservation. Since the Tribe does not have aboriginal rights 16 in the lands, it does not have aboriginal rights in waters appurtenant to the lands. 17 18 In United States v. Title Ins. & Trust Co., 265 U.S. 472 (1924)-which the 19 United States brought on behalf of a member of the Mission Indians-the Supreme 20 Court reaffirmed its decision in Barker. The Court held that regardless of whether 21 the Indians’ claims are based on Spanish or Mexican land grants, the Indians do not 22 have rights of permanent occupancy on the public domain lands based on their 23 occupation of the lands, and thus that the rights on such lands are not burdened by a 24 right of Indian permanent occupancy. Title Ins., 265 U.S. at 482-486. 25 26 27 28 01358.00008\9428817.2 - 20 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:13-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 24 of 28 Page ID #:4688 1 CONCLUSION 2 The Tribe’s and the United States’ motions for summary judgment should be 3 denied. 4 Dated: December 5, 2014 BEST BEST & KRIEGER LLP 6 7 By: IS/Roderick E. Waiston RODERICK E. WALSTON8 ARTHUR L. LITTLEWORTH GENE TANAKA PIERO C. DALLARDA STEVEN G. MARTIN10 o Attorneys for Defendant11 DESERt WATER AGENCY -j 0) 12 LJLJO 13 oz 14)flI D U,ZZ n 15 0 16 17 18 19 20 21 22 23 24 25 26 27 28 01358.00008\9428817.2 - 21 - DWA OPP. TO MSJ - AGUA CALIENTE BAND 5:1 3-CV-00883-JGB (SPX) Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 25 of 28 Page ID #:4689 1 2 PROOF OF SERVICE At the time of service I was over 18 years of age and not a party to this action. My business address is Best Best & Krieger LLP, 2001 N. Main Street, Suite 390, Walnut Creek, California 94596. On November 21, 2014, I served 6 the following document(s): 8 DESERT WATER AGENCY’S OPPOSITION TO MOTION FOR SUMMARY JUDGMENT OF AGUA CALIENTE BAND OF 9 MISSION INDIANS 10 by transmitting via electronic transmission to the person(s) at the e-mail address(es) set forth below by way of filing the document(s) with the U.S. District Court, g) 12 Central District of California. Federal Rule of Civil Procedure § 5(b)(2)(E) Ui () 13 Catherine F. Munson, Esq. Pro Hac Vice Attorneys for Plaintiff bJ< 14 Kilpatrick Townsend & Stockton LLP Agua Caliente Band of Cahuilla 15 607 Fourteenth Street NW, Suite 900 Indians 16 Washington, DC 20005 17 Tel: (202)-508-5844 Fax: (202) 585-0007 18 cmunson @ kilpatricktownsend.corn 19 kharper@kilpatricktownsend.com 20 . Thierry R. Montoya Attorneys for Plaintiff Agua 21 David I. Masutani Caliente Band of Cahuilla Indians 22 AlvaradoSmith, APC 633 W. Fifth Street 23 Suite 1100 24 Los Angeles, CA 90071 25 Tel: (213) 229-2400 26 Fax: (213) 229-2499 dmasutani@alvaradosmith.com 27 28 01358.00008\94288 17.2 - 1 - PROOF OF SERVICE Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 26 of 28 Page ID #:4690 1 Heather Whiteman Runs Him, Esq. Steven C. Moore, Esq. Native American Rights Fund 1506 Broadway Boulder, CO 80302 Tel: (303) 447-8760 Fax: (303) 442-7776 heatherw@narf.org smoore @narf.org Mark H. Reeves, Esq. Kilpatrick Townsend & Stockton LLP Enterprise Mill 1450 Greene St., Suite 230, Augusta, GA 30901 Tel: (706) 823-4206 Fax: (706) 828-4488 mreeves@kilpatricktownsend.com Gerald D. Shoaf, Esq. Steven B Abbott, Esq. Redwine & Sherrill 1950 Market Street Riverside, CA 92501-1704 Tel: 951-684-2520 Fax: 951-684-9583 sabbott @ redwineandsherrill . corn shoaf@redwineandsherrill .com Pro Hac Vice Attorneys for Plaintiff Agua Caliente Band of Cahuilla Indians Pro Hac Vice Attorneys for Plaintiff Agua Caliente Band of Cahuilla Indians Attorney for Defendants Coachella Valley Water District, Franz De Klotz, Ed Pack, John Powell, Jr., Peter Nelson, Debi Livesay Executed on November 21, 2014, at Walnut Creek, California. 0 0) J)JO) H-Lfl LflLJ< LJo 0 U(flZQ jC) ZZ Ui 0 C’) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 /s/ Irene Islas Irene Islas 01358.00008\94288 17.2 -2 PROOF OF SERVICE Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 27 of 28 Page ID #:4691 1 2 3 4 5 6 7 8 9 10 0 0) 0(0 -J 0) 12 13 LI’ãU3 14 15 0 N 16 17 18 19 20 21 22 23 24 25 26 27 28 01358.00008\9428817.2 - j - Case 5:13-cv-00883-JGB-SP Document 95 Filed 12/05/14 Page 28 of 28 Page ID #:4692