• Ninth Circuit Holds That Tribal Water Rights Include Groundwater
  • May 18, 2017 | Author: Christopher G. Foster
  • Law Firm: Morris Polich & Purdy LLP - Los Angeles Office
  • For over a hundred years, the U.S. Supreme Court has made clear that when the United States withdraws its land from the public domain and reserves it for a federal purpose, the government, by implication, reserves appurtenant water then unappropriated to the extent needed to accomplish the purpose of the reservation. Winters v. United States, 207 U.S. 564 (1908). In what has become known as the Winters doctrine, federal reserved water rights are directly applicable to Indian reservations and other federal enclaves, encompassing water rights in navigable and non-navigable streams. Despite the longstanding recognition that Indian reservations, as well as other reserved lands, require access to water, the Winters doctrine only applies in certain situations: it only reserves water to the extent necessary to accomplish the purpose of the reservation, and it only reserves water if it is appurtenant to the withdrawn land. Further, there is no controlling, federal appellate authority holding that the Winters doctrine applies to groundwater.