Department of Water Resources
A daily compilation for DWR personnel of significant news articles and comment
May 29, 2008
1. Top Item -
Calling dibs on groundwater
Ruling could affect 6 water agencies, 2,900 property owners
Riverside Press
On the edge of a dirt road, Anthony Madrigal Jr. peers over the same sage-covered, boulder-strewn land that his Cahuilla ancestors have lived on for thousands of years. But it's not the tribal land that's got residents of
Cahuilla Creek, a mostly dry riverbed that snakes through the reservation near Anza, belies the amount of water in an aquifer below.
Concerned that development in the area will draw on groundwater that belongs to them, the Cahuilla Band of Indians and a smaller nearby tribe asked a federal judge to establish just how much water they're entitled to.
Although it is unclear what that amount will be, the tribes' request comes at a time of drought and legal restrictions that have cut water supplies to the Inland region. The ruling could affect thousands of property owners and as many as six major water agencies across much of the 750-square-mile watershed of the Santa Margarita River that stretches from the
The tribes recently notified the agencies and some 2,900 property owners along the rural back roads of Anza, Aguanga and Sage to the vineyards and avocado groves of Temecula and beyond that they are being added as defendants in the decades-old court case.
Madrigal said tribal members want to legally define the amount of water they are entitled to so they have certainty and the necessary resources to live on their homeland for generations to come.
"The tribe can't sell the reservation. We don't have the luxury of picking up and moving," he said.
Worried About Water
Some homeowners who are nervous about losing some of their water have formed groups to share legal fees and hire attorneys. The Anza-Aguanga Citizens for Water Rights already counts 1,700 members. The rural areas near the tribal reservations depend solely on local water supplies for drinking and to irrigate crops, and don't have the infrastructure to import supplies like most urban areas.
"More than anything else, there is this honest fear they have their life savings in their home and they'll be left without water," said Jackie Spanley, who used to be an Anza Valley Municipal Advisory Council member and is organizing another citizens group.
Other property owners such as Larry Minor, president of San Jacinto-based Agri-Empire, which farms wheat and potatoes on 700 acres in the
The Cahuilla attorney said refusing to sign the notice will prompt a sheriff's deputy to show up at a property owners door to officially serve them.
"The thing to do is everyone calm down and focus on the senior tribal water rights," said Susan Williams, the tribe's New Mexico-based attorney. "Let's all be real. They're entitled to the water."
Madrigal, like the attorney for the smaller Ramona Band of Cahuilla Indians, prefers negotiation to litigation.
"We want to be good neighbors and we want to work this out. We don't want to cause any unnecessary hardship," said Curtis Berkey, the Bay Area attorney for the Ramona tribe. From his experience, Berkey said, "good will on both sides" is preferable.
Now, the U.S. Department of Interior, which holds reservation land in trust for tribes, is considering appointing a negotiating team to help settle the issue, said Pamela Williams, director of the interior secretary's Indian water rights office.
"Actually having certainty and finality as to who owns water in a region is really a good thing," Pamela Williams said. The negotiations "may seem painful but it's better to know what you have than continue to use something you may ultimately lose."
Tribal Water Rights
It's uncertain how much water is at stake, but the mountains surrounding
Peter Martin, program chief for the USGS's Southern California Water Center, said a more-recent $1 million study aimed at refining that figure, a move that would help with the legal questions, never got off the ground because
Such a study would have better defined the shallow and deep aquifers formed by ancient geological features, including the
In some places, groundwater dips down to 800 feet, but at issue in the court case is water in creeks and under the ground to about 100 feet deep. The groundwater below Anza's small commercial center, for instance, is not subject to the lawsuit because it is deeper.
Regardless of the amount of water in the aquifer, tribes enjoy water rights based on a century-old Supreme Court case that recognized those rights regardless of whether a tribe had used the water or not, said David Getches, dean of the University of Colorado Law School and a national expert in the field.
"And so that has been, ever since then, something that should put anyone that's on the same river system as an Indian reservation on notice that those tribes may have superior rights ... even though they weren't the first one to use it," Getches said.
He said tribal water rights date back to the establishment of the reservation, which in the case of the Cahuilla tribe was 1875.
In recent years, Congress has approved some 20 Indian water rights settlements, mostly in the West, said Pamela Williams, of the Interior Department.
One of the more recent cases involved the Soboba Band of Luiseño Indians near
The settlement, for which Pamela Williams was chief negotiator, left the tribe with $18 million for economic development from local water districts, $11 million from the federal government for water development and the right to 2 billion gallons of water each year from the aquifer below its reservation.
A bill by U.S. Rep. Mary Bono Mack seeking congressional blessing for the 2003 agreement passed in the House of Representatives last week and now goes to the Senate.
The typical standard for formulating a tribe's legal share of water is based on the number of acres that can be farmed, Getches said, even if agriculture is not a practice on the reservation.
"It's a very large standard," Pamela Williams said. "That is the thing that matters, that will be subject to litigation or settlement."
In the 1960s, the court found that 12,998 acres on the Cahuilla reservation potentially could be farmed; and 104 acres on the Ramona reservation. Getches said experts usually debate before the court how much water per acre is needed.
In the Soboba case, the tribe initially sought 16,000 acre-feet of water, but in the end agreed to cut that nearly in half to 9,000 acre-feet each year, and to take only half that amount for the first 50 years, said Behrooz Mortazavi, assistant general manager of resource development for the Eastern Municipal Water District, which was among the water agencies involved in the Soboba case.
"With Soboba, it started out high and ended up somewhere in the middle," Pamela Williams said.
Such negotiations are popular vehicles, she said. "Everyone ends up getting something out of it instead of winner take all."
Anxious Uncertainty
Most of the Cahuilla tribe's 300 members live in modular homes on the 19,000-acre reservation that sits in a remote but bucolic valley, where cattle roam on some of the tribal plots. The reservation is anchored by a small, tent-like casino where penny slots hope to lure in more gamblers to the far-flung location during the gas crisis.
The casino's emblem features a roadrunner, considered a good luck symbol to the tribe, Madrigal said. The casino sits in view of
The Ramona tribe, about five miles north, has fewer than 50 members, and most live away from the 560-acre reservation.
Some residents of the towns near the reservations said they were bewildered when they got their legal notices in the mail.
"We hadn't heard anything about this," said Cathy Phillips, 52, or Sage, who bought her 19-acre property some 26 years ago. "All of a sudden, we get this letter saying we're being sued."
Some residents wonder if the Cahuilla tribe will use its water to expand its casino or start other businesses. Some residents talk of rumors that their wells may be metered and they could end up paying the tribe for water.
"The land belongs to me. I worked hard to pay for it and pay for the well on my land," said Maurine Zurba, 68, of Sage.
"I know now they won't ever put a meter on my well. They won't get on my property," she said. If it comes to that, she said she would consider selling her property and hiring an attorney.
Water Districts Are Agents
Temecula-based Rancho California Water District was one of the water agencies served notice by the tribes, Meggan Reed, a district spokeswoman, said Tuesday. In a letter recently sent to property owners, the district told them they aren't obligated to respond to the tribes' complaint. The letter said the district is the property owners' agent for managing their water rights, that the district believes the water rights will be unaffected by the litigation but that the district is monitoring the legal proceedings.
"I think everyone is just trying to figure out what's going on and I don't understand it that well myself," said Ben Drake, a district board member.
Some of the Anza-Aguanga group's members, almost 300, have hired
"They have to show the water is needed to sustain life on the reservation," Markman said of the tribes.
He said he is not aware of any cases that allot water for casino or similar commercial development.
Pamela Williams said that in fact, recreational, industrial and commercial projects such as casinos and resorts can be factored into quantifying the amount of water for a tribe based on a Supreme Court decision in the 1960s; state courts, she added, have signaled they would allow that as well although it is a hotly debated area of the law.
Getches said a tribe in
Madrigal stressed the tribe doesn't want to take anyone's water, but couldn't say what the future holds for his tribe.
"I can't predict exactly what's going to happen," he said. "We have to secure the resource -- it's the foundation of all life."
http://www.pe.com/localnews/inland/stories/PE_News_Local_D_tribes28.39d9a04.html
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