From The Westerner Blog
Earlier this month, 10 states urged the Supreme Court to hear a low-profile case that started in California’s Coachella Valley but could have significant ramifications for water management in Nevada and the West.
Writing for the states, Attorney General Adam Laxalt described a lower court’s decision as “literally a watershed opinion washing away the authority and control that states have traditionally exercised over groundwater resources.”
The case looks to clarify what rights Native American tribes have to groundwater on reservations. In 1908, the Supreme Court said tribes possessed a federal right to surface water, but lower courts have since clashed over whether or not those rights extend to groundwater.
Groundwater is a vital part of the West’s water supply, but many basins throughout the region are pumped at unsustainable rates. More water is taken out than can be replenished. This is true in Nevada, where in some instances, total rights to water on paper exceed the annual supply.
For nearly 100 years, courts have differed and danced around the issue of whether reservation rights include groundwater. But 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 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
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