In the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United StatesIn the Supreme Court of the United States

COACHELLA VALLEY WATER DISTRICT, et al.,Petitioners,

v.

AGUA CALIENTE BAND OF CAHUILLA INDIANS, et al., Respondents.

DESERT WATER AGENCY, et al.,Petitioners,

v.

AGUA CALIENTE BAND OF CAHUILLA INDIANS, et al., Respondents.

On Petitions for Writ of Certiorari to theUnited States Court of Appeals for the Ninth Circuit

BRIEF OF THE STATES OF NEVADA, ARIZONA, ARKANSAS,IDAHO, NEBRASKA, NORTH DAKOTA, SOUTH DAKOTA,TEXAS, WISCONSIN, And WYOMING AS AMICUS CURIAE

IN SUPPORT OF PETITIONERS

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

ADAM PAUL LAXALT

Attorney General of NevadaLAWRENCE VANDYKE* Solicitor GeneralJORDAN T. SMITH

Assistant Solicitor GeneralMICHELINE N. FAIRBANK

Senior Deputy Attorney GeneralJUSTINA A. CAVIGLIA

Deputy Attorney General* Counsel of Record

Office of theNevada Attorney General100 North Carson StreetCarson City, NV 89701(775) 684-1100LVanDyke@ag.nv.gov

Nos. 17-40, -42

Counsel for Amicus Curiae

i

QUESTION PRESENTED

In light of the fundamental differences in how theStates regulate surface water versus groundwater, aswell as this Court’s past “narrow construction” of thereserved rights doctrine because of the congressionalpolicy of “deferring to state water law,” does theimplied federal reserved water rights doctrinerecognized in Winters v. United States, 207 U.S. 564(1908) always preempt state-law regulation ofgroundwater?

ii

TABLE OF CONTENTS

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . iii

INTEREST OF AMICUS CURIAE . . . . . . . . . . . . . . 1

SUMMARY OF THE ARGUMENT . . . . . . . . . . . . . 2

ARGUMENT IN FAVOR OF GRANTINGTHE PETITIONS FOR CERTIORARI . . . . . . . . 4

A. The Ninth Circuit’s Expansion of the FederalReserved Water Rights Doctrine Unsettlesthe Scope of the States’ Authority overGroundwater Resources. . . . . . . . . . . . . . . . . 4

B. The Federal Government’s ImpliedReservation of Groundwater Rightsis Inconsistent with the Clear StatementRule. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

iii

TABLE OF AUTHORITIES

CASES

Agua Caliente Band of Cahuilla Indians v.Coachella Valley Water District, 849 F.3d 1262 (9th Cir. 2017) . . . . . . . . . . passim

California Oregon Power Co. v. Beaver PortlandCement Co., 295 U.S. 142 (1935) . . . . . . . . . . . . . . . . . . 4, 6, 17

California v. United States, 438 U.S. 645 (1978) . . . . . . . . . . . . . . . . . . . . . 4, 6

Cappaert v. United States, 426 U.S. 128 (1976) . . . . . . . . . . . . . . . . . 2, 6, 7, 8

Erickson v. Crookston Waterworks, Power & LightCo., 111 N.W. 391 (Minn. 1907) . . . . . . . . . . . . . . . . 13

In re Gen. Adjudication of All Rights to Use WaterIn Gila River Sys. & Source, 289 P.3d 9361 (Ariz. 2012) . . . . . . . . . . . . . . . . . . 9

Gregory v. Ashcroft, 501 U.S. 452 (1991) . . . . . . . . . . . . . . . . . . . . . . 16

John v. U.S., 247 F.3d 1032 (9th Cir. 2001) . . . . . . . . . . . . . . 18

Kansas v. Colorado, 206 U.S. 46 (1907) . . . . . . . . . . . . . . . . . . . . . . . 17

Minnesota Canal & Power Co. v. Koochiching Co., 107 N.W. 405 (Minn. 1906) . . . . . . . . . . . . . . . . 14

iv

Montana v. U.S., 450 U.S. 544 (1981) . . . . . . . . . . . . . . . . . . . . . . 17

Nevada v. United States, 463 U.S. 110 (1983) . . . . . . . . . . . . . . . . . . . . . . . 4

Pennsylvania Dep’t of Corr. v. Yeskey, 524 U.S. 206 (1998) . . . . . . . . . . . . . . . . . . . . . . 16

Solid Waste Agency of N. Cook Cty. v. U.S. ArmyCorps of Eng’rs, 531 U.S. 159 (2001) . . . . . . . . . . . . . . . . . . . . . . 17

Tweedy v. Texas Co., 286 F. Supp. 383 (D. Mont. 1968) . . . . . . . . . . . . 9

U.S. v. Bass, 404 U.S. 336 (1971) . . . . . . . . . . . . . . . . . . . . . . 16

United States v. New Mexico, 438 U.S. 696 (1978) . . . . . . . . . . . . . . . . . . passim

Will v. Michigan Dep’t of State Police, 491 U.S. 58 (1989) . . . . . . . . . . . . . . . . . . . . . . . 16

Winters v. United States, 207 U.S. 564 (1908) . . . . . . . . . . . . . . . . . . passim

CONSTITUTION

U.S. Const. art. I, § 8 . . . . . . . . . . . . . . . . . . . . . . . . . 7

U.S. Const. art. IV, § 3 . . . . . . . . . . . . . . . . . . . . . . . 7

STATUTES AND RULES

Desert Land Act March 3, 1877, 43 U.S.C. § 321 . . 5

Mining Act July 9, 1879, § 17, 43 U.S.C. § 661 . . . . 5

Mining Act of July 26, 1866, § 9, 43 U.S.C. § 661 . . 4

v

Minn. R. 6115.0720 . . . . . . . . . . . . . . . . . . . . . . . . . 14

Minn. R. 6115.0740 . . . . . . . . . . . . . . . . . . . . . . . . . 13

Minn. Stat. § 103G.261 . . . . . . . . . . . . . . . . . . . . . . 13

Nev. Rev. Stat. § 228.170 (2017) . . . . . . . . . . . . . . . . 1

Nev. Rev. Stat. § 228.190 (2017) . . . . . . . . . . . . . . . . 1

Reclamation Act of June 17, 1902 ch. 1093 § 8 . . . . 5

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Sup. Ct. R. 10(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

OTHER AUTHORITIES

S. Rep. No. 755, 82d Cong., 1st Sess., 3, 6 (1951) . . 6

Senate Report on the McCarran Amendment, 43 U.S.C. § 666(a) . . . . . . . . . . . . . . . . . . . . . . . . 5

1

INTEREST OF AMICUS CURIAE1

The State of Nevada, acting through its AttorneyGeneral, is authorized by statute to commence, join, orparticipate in any suit necessary for the purpose ofprotecting and securing the interests of the State. Nev.Rev. Stat. § 228.170 (2017). Consistent with the vitalimportance of water in the Western States, Nevada’sAttorney General is specifically authorized to “appearin any action or proceeding … when it is necessary …for the purpose of … determining the rights of theState of Nevada [in relation] … to the waters thereinand thereunder, located in the State of Nevada.” Nev.Rev. Stat. § 228.190 (2017). As the driest state in thenation, Nevada has a paramount interest in the rulesgoverning the management and allocation of the scarcewater resources within its borders. Nevada has thehighest percentage in the nation of land under federalownership or control, with a large portion of that landsubject to possible claims of federal reserved waterrights.

Like Nevada, all amici States have a sovereigninterest in their respective water resources. While theStates have adopted various approaches to managingand allocating water rights, every state has an obviousstake in the preservation, maintenance, and allocationof their most precious natural resource.

1 Counsel for Nevada has notified counsel of record for the partiesmore than ten days before the filing of this amicus brief.

2

SUMMARY OF THE ARGUMENT

The Ninth Circuit’s decision in Agua Caliente Bandof Cahuilla Indians v. Coachella Valley Water District,849 F.3d 1262 (9th Cir. 2017), represents the high-water mark of uncertainty and disruption for theStates with respect to the management of groundwaterresources—especially the nine states in the NinthCircuit. The contours of federal reserved waterrights—known as the Winters doctrine—have ebbedand flowed, but never has this Court extended thedoctrine to groundwater. Indeed, in Cappaert v. UnitedStates, 426 U.S. 128, 142-43 (1976), this Courtspecifically acknowledged that federal reserved waterrights had not been applied to groundwater.

In the absence of this Court’s guidance, theapplication of federal reserved water rights togroundwater has flowed in at least three different andirreconcilable directions. At least one state hasconcluded that there are no federal reserved rights ingroundwater. See Coachella Pet. at 19. Others haveheld that there can be reserved rights, but only wherestate protections are inadequate. Id. at 19-20. Andnow the Ninth Circuit has rejected both approachesbecause “state water rights are preempted by federalreserved rights”—full stop. Coachella Pet. App. 21a-22a. The split of authority could not be wider or morefractured. See Sup. Ct. R. 10(a) (certiorari isappropriate when “a United States court of appeals …has decided an important federal question in a waythat conflicts with a decision by a state court of lastresort”).

3

By imposing federal reserved water rights overgroundwater in nearly a fifth of our nation’s states,Agua Caliente is literally a watershed opinion washingaway the authority and control that states havetraditionally exercised over groundwater resources. See Sup. Ct. R. 10(c) (certiorari is appropriate when “aUnited States court of appeals has decided animportant question of federal law that has not been,but should be, settled by this Court”). Regardless ofthe approach states have adopted to allocate waterrights—a “riparian” regime, a “prior appropriation”system, or any variation thereof—states within theNinth Circuit are now specially limited in regulatinggroundwater in their states, and may be subject tounanticipated federal reserved water right claims,some of which may involve groundwater basins thatare already fully appropriated under state law.

This Court should grant review of the NinthCircuit’s decision in Agua Caliente to resolve theconflict among the lower courts and answer thefundamental question of whether the Winters doctrineapplies to groundwater, and if so, when and how. Asdescribed by Petitioners, this case presents a cleanvessel to resolve the issue—an issue that, asPetitioners correctly note, is exceedingly important andoften recurring, but only rarely properly situated forthis Court’s review.2 The amici States respectfullyrequest this Court’s review of these cases.

2 Coachella Pet. 29-31.

4

ARGUMENT IN FAVOR OF GRANTINGTHE PETITIONS FOR CERTIORARI

A. The Ninth Circuit’s Expansion of theFederal Reserved Water Rights DoctrineUnsettles the Scope of the States’ Authorityover Groundwater Resources.

Since the late 1800’s, water has been effectivelylegally severed from the land, affording states theownership and authority to regulate the manner ofwater use, including water present upon federal lands.California Oregon Power Co. v. Beaver PortlandCement Co., 295 U.S. 142, 163-64 (1935) (“What wehold is that following the act of 1877, if not before, allnonnavigable waters then a part of the public domainbecame public juris, subject to the plenary control ofthe designated states, including those since created outof the territories named, with the right in each todetermine for itself to what extent the rule ofappropriation or the common-law rule in respect ofriparian rights should obtain.”). This bedrock principleof water law has been repeatedly affirmed by Congressand this Court. See, e.g., Nevada v. United States, 463U.S. 110, 123-24 (1983); California v. United States,438 U.S. 645, 665-67 (1978); see also Mining Act of July26, 1866, § 9, 43 U.S.C. § 661 (“Whenever, by priorityof possession, rights to the use of water for mining,agricultural, manufacturing, or other purposes, havevested and accrued, and the same are recognized andacknowledged by the local customs, laws, and thedecisions of courts, the possessors and owners of suchvested rights shall be maintained and protected in thesame; and the right of way for the construction ofditches and canals for the purposes herein specified is

5

acknowledged and confirmed ….”); Mining Act July 9,1879, § 17, 43 U.S.C. § 661 (“All patents granted, orpreemption or homesteads allowed, shall be subject toany vested and accrued water rights, or rights toditches and reservoirs used in connection with suchwater rights, as may have been acquired under orrecognized by this section.”); Desert Land Act March 3,1877, 43 U.S.C. § 321 (“[A]ll surplus water over andabove such actual appropriation and use, together withthe water of all lakes, rivers, and other sources of watersupply upon the public lands and not navigable, shallremain and be held free for the appropriation and useof the public for irrigation, mining, and manufacturingpurposes subject to existing rights.”); Reclamation Actof June 17, 1902 ch. 1093 § 8 (“Nothing in this Act shallbe construed as affecting or intending to affect or inany way interfere with the laws of any State orTerritory relating to the control, appropriation, use ordistribution of water used in irrigation … and theSecretary of Interior … shall proceed in conformitywith such laws ….”).

This Court has recognized that “[p]erhaps the mosteloquent expression of the need to observe state waterlaw is found in the Senate Report on the McCarranAmendment, 43 U.S.C. § 666(a), which subjects theUnited States to state-court jurisdiction for generalstream adjudications:

In the arid Western States, for more than 80years, the law has been the water above andbeneath the surface of the ground belongs to thepublic, and the right to the use thereof is to beacquired from the State in which it is found,

6

which State is vested with the primary controlthereof.

Since it is clear that the States have the controlof water within their boundaries, it is essentialthat each and every owner along a given watercourse, including the United States, must beamenable to the law of the State, if there is to bea proper administration of the water law as ithas developed over the years.”

California, 438 U.S. at 678-79 (quoting S. Rep. No. 755,82d Cong., 1st Sess., 3, 6 (1951)).

Accordingly, as a general matter, water rights mustbe acquired under state law, even for federal lands. See California Oregon Power Co., 295 U.S. at 163-64. In Winters, however, this Court carved out whatpurported to be a narrow exception to the general ruleand established the federal reserved rights doctrine.Under the Winters doctrine, the creation of an Indianreservation by the federal government necessarilyimplies that surface water was reserved to achieve thepurpose of the Indian reservation, even though theagreement creating the Indian reservation did notexpressly contemplate water rights. Winters, 207 U.S.at 575-77.

This Court again addressed the federal reservedwater rights doctrine in Cappaert. There, the Courtreiterated that when the federal governmentwithdraws land from the public domain it, “byimplication, reserves appurtenant water thenunappropriated to the extent needed to accomplish thepurpose of the reservation.” Cappaert, 426 U.S. at 138. The Court explained that this “implied” authority arose

7

under the Commerce Clause, Art. I, § 8, and PropertyClause, Art. IV, § 3, of the Constitution. Cappaert, 426U.S. at 138.

“In determining whether there is a federallyreserved water right implicit in a federal reservation ofpublic land,” the Court explained, “the issue is whetherthe Government intended to reserve unappropriatedand thus available water. Intent is inferred if thepreviously unappropriated waters are necessary toaccomplish the purposes for which the reservation wascreated.” Id. at 139. The Court limited any impliedreservation of water rights to the minimal amountneeded to fulfill the purpose of the reservation, and nomore. Id. at 141.

But the Cappaert Court left unresolved twoimportant questions. First, after noting that none of itscases had applied the implied reservation of waterrights to groundwater, the Court declined to reach thatissue because it concluded that that case involved onlysurface water. Id. at 142. Second, the Court leftundefined the parameters of what it meant by the“purpose” of the reservation.

This Court addressed the latter (but not the former)question in United States v. New Mexico, 438 U.S. 696(1978). It recognized that “many of the contours of whathas come to be called the ‘implied-reservation-of-waterdoctrine’ remain unspecified,” and that the doctrinehad significant federalism implications given the vastquantities of federal land that have been withdrawnfrom the public domain, especially in Western States.Id. at 699-700. The potential conflict between theStates and the federal government “is compounded by

8

the sheer quantity of reserved lands in the WesternStates ….” Id. at 699.

To balance the competing state and federalconcerns, the Court required a “careful examination” ofthe asserted water right and the purpose for which theland was reserved. Id. at 701. “This carefulexamination is required both because the reservationis implied, rather than expressed, and because of thehistory of congressional intent in the field of federal-state jurisdiction with respect to allocation of water.Where Congress has expressly addressed the questionof whether federal entities must abide by state waterlaw, it has almost invariably deferred to the state law.”Id. at 701-02. And as an “implied” doctrine, the Court’sWinters reservation is an exception to Congress’s usualexplicit deference to state water law, and in someobvious tension with that repeatedly expressed intent.See id. at 715. The Court indicated, therefore, thatcourts must carefully examine the text and legislativehistory of the Congressional act that set aside thefederal land in question in determining the scope of theimplied reservation. See id. at 702-18.

The Court in New Mexico attempted to solve thetension between state and federal interests by limitingthe federal reserved water right to the amountnecessary to fulfill the primary purpose for which thefederal reservation was created. Id. at 702. The Court“emphasized that Congress reserved ‘only that amountof water necessary to fulfill the purpose of thereservation, no more.”’ Id. at 700 (quoting Cappaert,426 U.S. at 141). “Where water is only valuable for asecondary use of the reservation,” the Court held that“there arises the contrary inference that Congress

9

intended, consistent with its other views, that theUnited States would acquire water in the same manneras any other public or private appropriator.” Id.(emphasis added); see also In re Gen. Adjudication ofAll Rights to Use Water In Gila River Sys. & Source,289 P.3d 936, 941 (Ariz. 2012).

Ignoring all of this nuance, the Ninth Circuit inAgua Caliente expanded the federal government’simplied reserved water rights to include “both surfacewater and groundwater appurtenant to reserved land”because “state water rights are preempted by federalreserved water rights.” Coachella Pet. App. 21a-22a.Going even further, the Ninth Circuit held that thesereserved rights “are not lost through non-use” and “areflexible and can change over time.” Id. at 21a. It wasthus irrelevant, under the Ninth Circuit’s analysis,that the Tribe did not historically use groundwater. Id.

Under the Ninth Circuit’s rule, so long as a federalreservation “envisions” or “contemplates” any use ofwater (it is hard to imagine any reservation that didnot envision some use of water), then groundwater use,whether such water was reasonably available oranticipated at the time of the reservation or not, isimplicitly reserved. Coachella Pet. App. 17a. Takingthe Ninth Circuit’s application of the federal reservedrights doctrine to its logical conclusion, a federalreserved right to groundwater applies irrespective ofthe reservation’s intended purpose or the federalreservation’s need for groundwater, and without regardto whether the federal government was puttinggroundwater to any beneficial use at the time of thereservation. Id. at 1270; compare, e.g., Tweedy v. TexasCo., 286 F. Supp. 383, 385-86 (D. Mont. 1968)

10

(observing that need and use of water are prerequisitesto a federal reservation).

Even more troubling is the Ninth Circuit’s holdingthat that any federal reserved water right is notlimited by the purpose and expected beneficial use atthe time of the creation of the reservation. Rather, inthe Ninth Circuit’s view, the implied reservation canexpand in the future based upon the changing dynamicof the federal reservation, so long as the federalgovernment or tribe asserts that it is related to theoriginal purpose of the reservation, broadly construed.Coachella Pet. App. 21a-22a. In essence, the NinthCircuit held that a federal reservation’s groundwaterright can evolve over time. Id. at 21a (“Instead, theyare flexible and can change over time.”).

In sum, the Ninth Circuit’s indiscriminateapplication of the Winters doctrine to groundwaterglosses over at least three important factors, any one ofwhich could have led to a different result in AguaCaliente. First, the long historical differentialtreatment of surface water and groundwater by mostStates, informed by the fact that never before has anycourt recognized an unqualified reserved right ingroundwater disconnected from any consideration ofthe protections already offered by the State. Second,that under this Court’s guidance in New Mexico, theprimary purpose(s) of the reservation should informwhether a reserved groundwater right exists at all, notjust the quantity of the right. And third, the fact thatin many instances, just because the primary purpose ofa federal reservation may have included a need forsurface water, that is a different question from whetherthe purpose included a need for groundwater.

11

Factually, these are two different questions—andshould legally be treated as such, not merged as theNinth Circuit did in this case.

These oversights by the Ninth Circuit in expandingthe reserved rights doctrine in Agua Caliente threatensreal and extensive harm to the States. States haveallocated and adjudicated groundwater rights againstthe historical and doctrinal background limned above.Agua Caliente has injected uncertainty as to the extentto which federal reservations have a reservedgroundwater right, and muddied the application of theprimary purpose doctrine to the federal government’simplied water rights.

Relying on this Court’s past decisions and therationale underlying those decisions, states have had alegitimate expectation that they had primary controlover their groundwater resources and that eachpossible claim for federal reserved rights wasnecessarily limited to the reservation’s primarypurpose, its ability to obtain water other than througha federal reserved right in groundwater, and with atleast some plausible nexus to the actual historical useof water related to the federal reservation. AguaCaliente has tremendous implications for statesmanaging finite groundwater resources, which havelargely been fully allocated over the past 100 years.The Ninth Circuit’s decision subjects a state’sappropriation and groundwater resource managementprocesses to uncertainty. If a federal reservation canassert absolute preemption over state groundwaterallocation laws and regulations, a state’s effort toeffectively manage those limited water resources willbe thrown out of balance.

12

For instance, in a state like Nevada where many ofthe groundwater allocation systems are already fullyappropriated, the longstanding and settledappropriation regime will be disrupted by new,unaccounted-for federal reserved groundwater rightsclaims that are suddenly asserted for the first time. Inthose circumstances, a federal reserved claim togroundwater, likely having a senior priority date, willresult in the over-allocation of the system. The newfederal reserved water rights claim would injureexisting groundwater users. Those water rightsholders who relied upon the availability ofgroundwater, and who not only went through theprocess of securing their water rights but also investedin putting the water to a beneficial use, will suddenlybe dispossessed of their expectation (and, in manyinstances, their livelihood), based on a newly-createdsenior water right that has no historical basis beyondthe nebulous claim that the federal reservation’spurpose included the need for water. Not groundwater,necessarily—just water. Existing groundwater usersmay lose their established right to use that water, or besubject to curtailment in the inevitable times ofscarcity. Current rights holders may see theirinvestment backed decisions evaporate. This isparticularly unfortunate given this Court’s explicitrecognition in New Mexico that “federal reserved waterrights will frequently require a gallon-for-gallonreduction in the amount of water available for water-needy state and private appropriators” and “[t]hisreality … must be weighed in determining what, if any,water Congress reserved for use ….” New Mexico, 438U.S. at 705. None of that concern has been carried overin the Ninth Circuit’s Agua Caliente decision.

13

Nevada thus illustrates well the potentiallydevastating consequences of Agua Caliente. Nevadahas extraordinarily limited water resources and hasalready extensively appropriated available surface andground water within the State through the State’scarefully balanced water laws. Under Agua Caliente,however, Nevada may be forced to curtail by priorityexisting, long-standing water rights to provide for new,and previously unknown, federal reserved rights ingroundwater that no one contemplated as beingnecessary for the purpose of the federal reservation atthe time of its creation.

The rule in Agua Caliente has no less potential tocreate significant uncertainties even in water-richstates that manage their groundwater and surfacewater resources under riparian, rather than the prior-appropriation principles that apply in the WesternStates. Minnesota, to take one example, has longrecognized that overlying landowners, including tribesand federal agencies, have the right to the reasonableuse of ground or surface water abutting their property.See Erickson v. Crookston Waterworks, Power & LightCo., 111 N.W. 391, 393-94 (Minn. 1907). The allocationof waters in the state follows a statutory order ofpriority based on end use that does not rely upon anyelement of temporal priority. Minn. Stat.§ 103G.261(a)(1)-(6) (listing water allocation prioritiesdependent on use and identifying domestic watersupply as the first priority); Minn. R. 6115.0740, subp.2.A (“In no case shall a permittee be considered to haveestablished a right of use or appropriation by obtaininga permit.”). Under this system, no user has anabsolute priority of right to use or appropriate surfaceor ground water within the state. In the event that the

14

available supply of water in a given area is limitedsuch that the competing demands among existing andproposed users exceed the reasonably available waters,there is an administrative process to address thewater-use conflict. Minn. R. 6115.0720. If there is anunresolved conflict, allocations are made to existingand proposed users based on statutory order of water-use type. Id.

Applying Agua Caliente’s principles in Minnesotawould, in essence, graft a federal rule of temporalpriority onto the state’s water law despite the fact thatthe state has long rejected prior appropriationprinciples. See Minnesota Canal & Power Co. v.Koochiching Co., 107 N.W. 405, 410 (Minn. 1906)(“[T]he doctrine of the appropriation of waters, adoptedin some of the western states, does not prevail inMinnesota ….”). Such a result would raise significantfederalism concerns, given the States’ primacy inmatters of water law. Indeed, applying prior-appropriation principles in a riparian state likeMinnesota that does not recognize an order ofallocation would mean that implied federal reservedrights would always be first in line even over thoseappropriating for domestic water supply purposes. This outcome makes little sense when, underMinnesota’s law, there is no need to imply a federalright to water for reservation purposes because theright already exists under applicable state law. Seealso Coachella Pet. 26-28 (describing similar adverseconsequences for California and other similarlysituated non-priority States).

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The consequences that Nevada, California, andMinnesota would face from the unqualified federalpreemption rule in Agua Caliente are hardly unique.While each state’s predicament will inevitably varybased upon its own water laws, it is hard to imagineany Western State in the Ninth Circuit not beingadversely affected. Meanwhile, as Minnesotademonstrates, states outside of the Ninth Circuit mustalso sit in limbo waiting to see if their Circuit willfollow the Ninth Circuit’s severe approach, or whethertheir Circuit might hew closer to the balance expressedin this Court’s cases like New Mexico.

Indeed, given the geographical reality ofgroundwater aquifers in Nevada and other states thatborder the Ninth Circuit, the Agua Caliente decisioncreates an especially troubling incentive for forumshopping. Nevada (like many states) has groundwateraquifers that traverse state lines. Nevada also hasTribal and other federal reservations located abovethose aquifers where only part of the reservation andpart of the aquifer are in the Ninth Circuit—forexample, on the border of Nevada and Utah. Entitiesbringing a new reserved water right claim related tothose cross-state groundwater aquifers would bestrongly incentivized to bring their claims in the NinthCircuit, instead of, for example, the Tenth Circuit,which has not adopted Agua Caliente’s absolute rule ofpreemption. This only exacerbates the uncertaintythat will reign until this Court addresses the issuepresented by this case.

One thing is certain: Agua Caliente has left Stateswith great uncertainty in an area of paramountsovereign importance, and in an area where such

16

uncertainty has serious practical consequences. Itleaves States facing a possible tide of federal reservedwater right claims in excess of those rights alreadyallocated, and budgeted, in the States’ respective waterallocation system. This Court should entertain thepetition and resolve this uncertainty.

B. The Federal Government’s ImpliedReservation of Groundwater Rights isInconsistent with the Clear StatementRule.

In Gregory v. Ashcroft, this Court held that ifCongress intends to preempt a power traditionallyexercised by a state, “it must make its intention to doso ‘unmistakably clear in the language of the statute.’”501 U.S. 452, 460 (1991) (quoting Will v. MichiganDep’t of State Police, 491 U.S. 58, 65 (1989)). This so-called clear statement or plain statement rule serves asan acknowledgement that, under the TenthAmendment, States retain substantial sovereign powerwith which Congress does not easily interfere. Id. at461-63. “In traditionally sensitive areas, such aslegislation affecting the federal balance, therequirement of clear statement assures that thelegislature has in fact faced, and intended to bring intoissue, the critical matters involved in the judicialdecision.” U.S. v. Bass, 404 U.S. 336, 349 (1971).

To satisfy the clear statement rule, Congress mustmake “unmistakably clear” its intent to alter the usualFederal-State balance in areas of “traditional andessential state function.” Pennsylvania Dep’t of Corr.v. Yeskey, 524 U.S. 206, 209 (1998). The intention“must be plain to anyone reading the [statute] ….”Gregory, 501 U.S. at 467.

17

Here, the States have traditionally exercisedplenary power over all non-navigable waters withintheir borders. Kansas v. Colorado, 206 U.S. 46, 93,(1907) (“It is enough for the purposes of this case thateach state has full jurisdiction over the lands within itsborders, including the beds of streams and otherwaters.”); California Oregon Power Co., 295 U.S. at163-64 (“all nonnavigable waters then a part of thepublic domain became publici juris, subject to theplenary control of the designated states”).

As this Court recognized over a century ago, manyof the congressional acts establishing Indianreservations and other federal enclaves did notspecifically contemplate the reservation of water rights.See, e.g., Winters, 207 U.S. at 575-77. And, given thestate of technology at the time, it is no surprise thateven fewer acts specifically addressed the use ofgroundwater. See, e.g., Coachella Pet. 12-13.

The absence of express reservations of water rightsthat prompted the creation of the Wintersdoctrine—and now Agua Caliente—also triggers theapplication of the clear statement rule. See SolidWaste Agency of N. Cook Cty. v. U.S. Army Corps ofEng’rs, 531 U.S. 159, 174 (2001) (applying clearstatement rule when the result would have “asignificant impingement of the States’ traditional andprimary power over land and water use”) (emphasisadded); Montana v. U.S., 450 U.S. 544, 552 (1981)(“[B]ecause control over the property underlyingnavigable waters is so strongly identified with thesovereign power of government,” courts “must not infersuch a conveyance unless the intention was definitelydeclared or otherwise made plain … in clear and

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special words.”) (internal citations and quotationsomitted); John v. U.S., 247 F.3d 1032, 1046-47 (9th Cir.2001) (Kozinski, J., dissenting) (applying clearstatement rule to dispute involving reserved waterrights and navigable waters).

Courts cannot simply presume that Congressconsidered, let alone intended, to displace the States’traditional authority over groundwater when (1) notonly is the enabling act creating the reservation silentabout water rights, but also (2) it was not even feasible,much less contemplated, that groundwater would beused. See Coachella Pet. at 32. To carry over adoctrine rooted in implied Congressional intentrequires more. This Court should grant the petition tocorrect the Ninth Circuit’s erroneous extension of theimplied reservation of water rights to groundwater inthe absence of a clear expression of Congressionalintent.

CONCLUSION

The petition for a writ of certiorari should begranted.

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Respectfully submitted,

MARK BRNOVICHAttorney GeneralState of Arizona

LESLIE RUTLEDGEAttorney GeneralState of Arkansas

LAWRENCE G. WASDENAttorney GeneralState of Idaho

DOUG PETERSONAttorney GeneralState of Nebraska

WAYNE STENEHJEMAttorney GeneralState of North Dakota

MARTY J. JACKLEYAttorney GeneralState of South Dakota

KEN PAXTONAttorney GeneralState of Texas

BRAD SCHIMELAttorney GeneralState of Wisconsin

PETER K. MICHAELAttorney GeneralState of Wyoming

ADAM PAUL LAXALT Attorney General of NevadaLAWRENCE VANDYKE* Solicitor GeneralJORDAN T. SMITH Assistant Solicitor GeneralMICHELINE N. FAIRBANK Senior Deputy Attorney GeneralJUSTINA A. CAVIGLIA Deputy Attorney General100 North Carson StreetCarson City, NV 89701(775) 684-1100LVanDyke@ag.nv.gov* Counsel of Record

Counsel for Amicus Curiae

August 2017