CALIFORNIA WATER POLICY CONFERENCE: Tribal Groundwater Rights and SGMA: A New Underlying Tension?
Panel discussion moderated by DWR Tribal Advisor Anecita Agustinez discusses tribal involvement in GSAs, the benefits of tribal participation in groundwater management, and tribal consultation
The Sustainable Groundwater Management Act (or SGMA), passed in 2014, set a course for sustainable management of the state’s groundwater aquifers by requiring Groundwater Sustainability Agencies (GSAs) be formed for all high and medium priority basins in the state who then must develop and implement Groundwater Sustainability Plans (GSPs).
The legislation provides that tribes “may voluntarily agree to participate in the preparation or administration of a groundwater sustainability plan” and are “eligible to participate fully in planning, financing, and management” – the first time this has been recognized in state law. However, participation by tribes is voluntary; tribes are considered sovereign entities and their participation cannot be compelled.
Nonetheless, the Sustainable Groundwater Management Act requires engagement with all stakeholders. Tribal interests are an important stakeholder in many basins, but most of the basins underlying tribal lands are exempt from SGMA as a consequence of relatively low intensity use of the groundwater. However, in those basins that are subject to SGMA that have tribal lands, the recent Aqua Caliente court decisions have put tribal interests front and center. What are the challenges for the tribes and non-tribe stakeholders in coming together to implement SGMA? Are tribal interests different than those of other stakeholders? How are financial inequities, if they exist, addressed?
At the 28th California Water Policy conference held in April of 2019, a panel discussed how tribal lands and tribal representatives, as independent nations, can be integrated into SGMA implementation, what some of the obstacles to doing so are, and how those hurdles might be transcended.
Seated on the panel:
- Tom Kennedy, General Manager, Rainbow Municipal Water District
- David Sandino, Senior Staff Counsel, California Department of Water Resources
- Art Bunce, Tribal Attorney for the Barona Band of Mission Indians and Co-Special Counsel to the San Luis Rey Indian Water Authority
- Larry Rodriguez, Vice President, Water Resources, GEI Consultants
Here’s what the panelists had to say.
FEDERAL RESERVED WATER RIGHTS FOR TRIBES
Ms. Agustinez asked Art Bunce to begin with an overview of the federal reserved water rights for tribes.
In 1908, the Supreme Court ruled in the Winters vs. the US case that when the federal government establishes an Indian reservation, whether by treaty, statute, executive order or any other way, that necessarily means that the tribe has reserved for it by federal law sufficient water to meet the present and future requirements of the reservation, even if water isn’t referenced in the document creating the reservation.
“That’s a very heavy duty sentence right there, because what it means is that tribes have dormant rights that are not lost by non-use,” said Art Bunce. “Even if 100 years passes between the creation of the reservation and the assertion of the right, the passage of time does not diminish or defeat the right. The right itself can expand with the needs of the tribe in the future, and it has a priority date of the creation of the reservation. There are huge implications to that.”
He then gave an illustrative example. Suppose that the water source is a big tank on a hill for a whole watershed; it has a spigot, and lined up at the spigot are all of the water users in that watershed in order of their priority based on the date when their water right was established. Each water user has a bucket that is the size of their entitlement to the water. Once a year, everyone goes to the spigot, gets in line in order of their priority dates, and fills up their bucket. If there’s enough water in the tank to fill up everybody’s bucket up, that’s great; if there isn’t enough water in the tank, then the water users at the end of the line don’t get any water. There’s no proportional sharing; the water in the tank goes as far as it goes down the line, and anybody beyond that gets zero.
Off to the side is an Indian guy, and he has a bucket, too, but he’s not in line, Mr. Bunce continued. He’s been sitting off on the side for a long time, and his bucket is different from everybody else’s – it expands. He can butt in line according to his priority date, which is the date the reservation was created. If that is 1980, he steps in line ahead of the water user who had the priority date of 1900.
“Now you can imagine the consternation this causes to the guys at the end of the line,” he said. “Especially if that Indian bucket is big and elastic, because it means that the people down towards the end of the line may get left out. That’s what the implications of Winters are; that there’s going to be a reordering of the priorities and the quantities of water available to everybody in the basin if a tribe with an earlier priority right steps forward and asserts the right.”
AGUA CALIENTE GROUNDWATER CASE
Note: This panel discussion occurred prior to the recent ruling which limited the scope of the case.
In 2013, the Agua Caliente Band of Cahuilla Indians sued the Coachella Valley Water District and Desert Water Agency over their groundwater management practices and specifically the agencies’ use of lower-quality Colorado River water to recharge the groundwater basin. Ms. Agustinez then asked David Sandino and Art Bunce to discuss federal reserved rights and the implications of the Agua Caliente case.
Mr. Sandino began by noting that a surface water right was at issue in the Winters case, and since then, there’s been a lot of discussion about whether the Winters Doctrine would apply to groundwater, since when it comes to water rights, surface water and groundwater are treated differently.
“Surface water has its own body of law, groundwater has its own body of law, and the issue that was pending up until we received the Agua Caliente case, which is should the Winters Doctrine apply to groundwater rights,” he said. “In the Agua Caliente case in the first phase of the decision, 9th Circuit dealt with that head on and said yes, it makes sense that the Winters Doctrine and reserved water rights concept also applies to groundwater rights, so this was a clear statement by the federal court that that doctrine applies.”
Mr. Sandino explained that this then applies to SGMA because now there is a 9th Circuit case that validates that tribal groundwater rights are reserved water rights and need to be respected. He also noted that the case cited the SGMA statute recognizing tribal reserved groundwater rights, and he credited Art Bunce’s efforts for getting that expressed in statute.
“That’s about as solid as you’re going to get when it comes to law where you have the statutory recognition of tribal reserved groundwater rights, we have the 9th Circuit decision that validates tribal groundwater rights, and Agua Caliente also explored the priority of those groundwater rights as priority matters,” Mr. Sandino said. “The Agua Caliente case said that the groundwater rights for Agua Caliente were senior based on the creation of that reservation, so a lot of good law in that case, and it’s now one of the key decisions when it comes to understanding groundwater.”
Moderator Anecita Agustinez noted the Agua Caliente was divided into three phases, and Mr. Sandino was referring to phase 1. She then asked Art Bunce to discuss where the Agua Caliente case was today.
The Agua Caliente case was filed in federal district court in Los Angeles in 2013. Mr. Bunce noted that the federal judge handling it recognized it as an important case that would potentially set basic federal policy for decades to come and could even go to the US Supreme Court, so the judge put some thought into getting it right.
Litigating the entire case would be lengthy and expensive and the decision would likely be appealed, so the case was divided into three phases, explained Mr. Bunce. The first phase was the legal question of whether the Winters Doctrine extends to groundwater. If the answer is no, the case ends there; if the answer is yes, the case goes to the second phase. The second phase considers if there any defenses; he noted that the two water district had raised a lot of defenses, and if none of those prevail, the case moves onto phase 3. Phase 3 is the quantification question: how much is the right that Winters affords to that tribe for groundwater under its reservation.
The decision from the 9th Circuit was appealed at the end of the first phase through a special procedure in federal law called an interlocutory appeal; Mr. Bunce explained that normally you can’t appeal until the case is over, but if a case raises a fundamental question of law that is of great interest and importance and is going to control the rest of the case, if the federal judge authorizes it and the Court of Appeals will agree to it, it can be appealed right then on just the one phase; that’s what happened.
The appeal in the Agua Caliente case is an interlocutory appeal on just phase 1. After the 9th Circuit ruled favorably for the tribe in that case, the water districts who lost asked the US Supreme Court to take the case. US Supreme Court declined to take it at this time. Mr. Bunce noted that they may wait until the entire case has been fully litigated and through the 9th Circuit before they grant a review.
“Nobody knows if they’ll ever grant cert but you know that the whole case, when it’s over, it will go to the 9th Circuit,” he said. “The real question is, at that point, will it go beyond that to the Supreme Court. Under traditional principles of federal Supreme Court law, the answer is no, the reason being because the major reason why the Supreme Court takes cases is to resolve conflicts between circuits. Here’s there no conflict; there’s one and only one decision on the subject and it’s the 9th Circuit case. Now a good case to grant cert on would be if 10th Circuit answered the question in a different way, but that hasn’t happened. So there’s some chance that the Supreme Court will take case at the very end after the third phase is complete, but maybe not. We don’t know.”
NOTE: Subsequent to this panel discussion, a federal judge issued a ruling dismissing portions of the lawsuit. The tribe has not yet decided if they are going to appeal. Nonetheless, there are still issues to be resolved, such as whether the tribe has an ownership stake in the aquifer’s empty storage space. Read more here:
- Court limits landmark tribal groundwater case, from E&E News
- Federal judge dismisses key pieces of tribe’s claim against local water districts, from the Desert Sun
TRIBAL PARTICIPATION IN SGMA
Anecita Agustinez noted that there are many GSAs that have been formed with or without tribal participation, because the SGMA legislation says it is voluntary. “It’s a local situation – a local relationship that’s built,” she said. “There are certain places in California where the tribe has possibly 60% ownership of land in the basin, and as we know through SGMA, it’s a requirement that all beneficial users in a basin and their interests be included, not only in governance, but also with the GSP plans.”
She acknowledged that some tribes have decided to stay on the outside, which is not surprising, given the tribal history in the United States and the taking of land, the mistreatment, and their removal from ancestral lands. However, that is not case the case with all tribes; some are choosing to participate, such as in the San Luis Rey Basin.
The San Luis Rey Basin has nine water districts and resource conservation districts operating within it, and is home to five tribes who are represented by the San Luis Rey Indian Water Authority. The Upper San Luis Rey Basin is considered medium priority, and therefore subject to SGMA. Tom Kennedy is General Manager of the Rainbow Municipal Water District, one of several water districts in the basin.
Ms. Augustinez asked Mr. Kennedy about how the tribes have participated in water management within the San Luis Rey basin. He acknowledged it has been a somewhat circuitous path to get where they are today. Every day, local water districts work on contracts, agreements, and interagency work, all under the auspices of state law, and the districts are comfortable with those things, he said.
However, coming to agreement on an MOU with the tribes in their basin was a bit challenging. “At one point, a clause for a waiver of sovereign immunity was proposed, which seemed reasonable to some water district people because they didn’t want to have to discuss this in some other legal sphere that they’re not comfortable with, but in reality it was a really bad idea,” he said. “I wouldn’t give up any significant right for my agency in any contract, but for some reason, there was this concept that some had that the tribes have to give up sovereign immunity … that was a non-starter, and it was kind of dumb.”
Another challenge was that the way the State Water Board had determined the groundwater basins was somewhat in conflict with DWR’s Bulletin 118 basin description; DWR considered the basin as one large basin while the State Water Board had divided it up into subbasins, finding some of them to be percolating groundwater and others being determined to be subterranean streams flowing in known and defined channels, which are dealt with separately under state law.
SGMA doesn’t apply to subterranean streams, it’s in the statute, but the Palo Band’s subbasin is a subterranean stream and there was an early effort to confine the Groundwater Sustainability Agency to just the percolating groundwater area, but that would have excluded the Palo Band, he said.
“Federal water rights don’t distinguish between the surface and groundwater and especially between percolating and subterranean streams; it’s just not part of how that works,” Mr. Kennedy said. “So it was a real tough spot we were in to say, how are we going to work this out because SGMA says it doesn’t apply there. We went around and around for a long time, trying to work within the statute to try and figure out well how can this be done, and there was a lot of workarounds, but at the end of the day, we determined we had to change SGMA.”
So local water district officials and tribal representatives spent a lot of time in Sacramento working on this, including testifying to the state Senate and convincing ACWA to go along with it. Ultimately AB 1944 was passed which created a special overlay for tribal water rights within the Palo subbasin; the legislation also divided the basins into upper and lower San Luis Rey basins.
“For the purposes of SGMA, even though the State Water Resources Control Board designates the water in the Palo subbasin a subterranean stream, it’s being considered as percolating groundwater for the implementation of SGMA under the tribal lands,” said Mr. Kennedy. “It also respects the rights that have been given by permit by the State Board for diversions; there are a lot of pre-1914 right holders out there, mainly farmers and ranchers, and so it was a complex battle to get it all through. It was difficult.”
Mr. Kennedy recalled how when he was hired in 2014, he asked who their contact person was with the tribes, and he was told they didn’t have a tribal contact. “So realizing that wasn’t going to work out well, I spent a lot of time getting around and arranging meetings and then we all started working together,” he said.
“If you have a tribal entity next to you, near you, around you, and you don’t go out and get to know those people just like you do your other colleagues in the industry, you’re making a big mistake because the tribes are an asset to you as well,” he advised. “The water in the basin is just water in the basin and if we don’t all work together on it, we could spend 50 years in court, but that doesn’t really get you where you need to be, so I think the relationships that have been built here and the work we’ve been doing together is starting to build the trust that’s necessary to make this whole thing work.”
THE ROLE OF CONSULTANTS
DWR provided funding for technical assistance and consultation for basins, especially the critically overdrafted basins, noted Anecita Agustinez. She asked Larry Rodriguez’s perspective on the services needed at the local level and how they can contribute to bringing stakeholders together.
Larry Rodriguez said that SGMA is hard enough as it is, but adding the nuances of water rights priorities makes it more difficult, but at the same time, it drives home the importance of cooperation. “When we develop SGMA plans, we’re supposed to develop a plan that allows us to operate a basin sustainably, and the way that the law is written, we have a lot of flexibility in determining what that is,” he said. “We get to set what our undesirable results are and how we manage those. But ultimately, it means that we need to manage any basin to a point where we’re not having a negative impact on groundwater levels or water quality or subsidence or whatever is critical for that area.”
There’s a finite amount of water that has to be divided up, and if that isn’t done right and somebody comes in after the plan is developed, it’s going to cause problems, he said. “I think it’s really important that as we start to develop these plans, we have the participation of all the stakeholders and all the beneficial users of the basin at the table. Otherwise, we’re going to be in a process of having to redo plans all the time.”
Mr. Rodriguez acknowledged that SGMA requires five year updates, and everyone recognizes that the first plans in 2020 and 2022 are not going to be fully complete; there will be outstanding issues not only with quantification of water rights, but there may be water rights issues that haven’t been settled that are still before the State Board which would have a big impact on how a basin is managed.
“We recognize those things will be out there and we’ll have to update our plans as we go forward, but it’s really important to have a heads up of what those are going to be and how we’re going to include them in the development of plans as we go forward,” he said. “From a practitioner’s standpoint, the more I know about what I have to plan for and the more I can start developing solutions or placeholders, that’s going to make our plan a little bit better and allow us to tell that story in the plan so that when DWR reviews that plan and the State Board, they recognize that we have an issue – we may not have it solved but we have a plan to move forward. So I think those are really critical things in terms of having that participation.”
Anecita Agustinez reminded that there are alternative plans that also will affect the tribes; those plans are still being reviewed by DWR, and if not approved, those basins will still have to comply with the 2020/2022 deadlines. There are many tribes in these areas that are fairly vested in whether these alternative plans affect them or not.
“In the northern territories, we see a tension where tribes who have been displaced from ancestral lands are taking a really strong look at areas such as in Siskiyou County, where they are heavily invested in a fish culture, and they are very much involved with the habitat and upper watersheds,” Ms. Agustinez said. “So when you’re looking at SGMA from a tribal perspective, it’s just not that SGMA boundary – it’s the boundary, either the below stream users or upper watershed that feeds into those aquifers, and those are very much a strong consideration for tribes.”
FUNDING SOLUTIONS IN THE BASIN
Anecita Agustinez noted that implementing SGMA involves a lot of local investment in modeling, data collection, and other things. She asked David Sandino to talk about the on-the-ground involvement and local investment it takes, and how tribes are involved in that investment, or not.
David Sandino acknowledged that developing a plan is expensive as it requires a lot of technical analysis, data management, and public work, and there needs to be funds available to move forward with those processes. That creates issues for participants in the process that don’t have sufficient funding, whether its tribal communities or others, he said.
“The state has attempted to level the playing field somewhat with some of the proposition money and making that available for the SGMA planning, including the tribal communities, but by all accounts, most don’t think that’s enough money for everyone to participate,” he said. “There are more challenges, more opportunities, and more suggestions that are being put on the table to try and find additional funding.”
Tom Kennedy pointed out that in his basin, the tribes committed to funding half of the cost of the initial GSP, and have already contributed $400,000 towards the effort. The remainder is being split amongst the various public agencies; they also received a state grant. “There are a few stakeholders who said they didn’t have enough money so other people stepped up,” he said.
Larry Rodriguez noted that most of the work he is doing right now is in the Central Valley and Kern County, where the basins are big and complicated and the level of participation and effort is significant. But regardless of whether the stakeholder has the financial resources to contribute, if they are a stakeholder or beneficial user in the basin, they still need to have a voice at the table, he said. “From my perspective of having put the plans together, it doesn’t matter to me whether or not they are financially participating,” he said. “What matters to me is that the folks that are beneficial users in the basin are at the table and we can recognize what their needs are in the development of the plan.”
Tom Kennedy said that the first meetings in their basin were difficult, but with the help of the facilitator provided by DWR and through the development of trust over time, everybody was able to fully express their concerns and work through them. “We’re all buddies now,” he said.
GSA GOVERNANCE AND TRIBAL INVOLVEMENT
Anecita Agustinez noted that tribes status as a government and their distrust of data management can make it difficult for tribes to participate in a GSA; in addition, tribes have concerns about participating in a JPA. She asked Art Bunce to elaborate on this.
Art Bunce acknowledged that it is difficult for non-Indian individuals and organizations to understand. “The question that Anecita is really asking is why should tribes bother, why should tribes do this?,” he said. “The statute itself says their participation is voluntary, so why don’t they just say ‘no, we’re not interested?’ There may be a few tribes who will do that, because historically, that has been one of the most successful defensive postures tribes could take, because as a matter of history and law, involvement with non-Indians has done more to tribes than for tribes. Tribes have been harmed by many of the things that outsiders have been doing.”
However, over the years, many tribes have learned that if you engage as they did in the San Luis Rey basin, there can be a benefit. “The trick in getting tribes to participate in this process is to get each one of them individually to determine that the benefit to the tribe – not to outsiders but to the tribe – outweighs whatever the detriment to the tribe is, so that the tribe can see that it comes out better by participating than by not participating. In the years past, I don’t think you could have persuaded any tribe to participate voluntarily. But I would think that in maybe the last 15 years, we’ve reached the point where there are enough Indian people who have had positive experiences that they are willing to at least be open to the possibility.”
The San Luis Rey Indian Water Authority is an intertribal organization formed by the five San Luis Rey tribes in order to advance and manage their water interests under the settlement. Mr. Bunce noted that each one of those tribes makes its own individual decision as to whether they will participate in the SGMA process, and he acknowledged there are barriers to be overcome, such as participating in a JPA.
“I predict that very few if any tribes are going to participate by means of a Joint Powers Authority because it comes with way too much state baggage,” said Mr. Bunce. “Do you want to obey the Brown Act? You want to obey the Political Reform Act? You want to be subject to the Public Records Act? Tribes aren’t subject to any of those things right now. If they joined a JPA, they become subject to that. I advise tribal clients not to ever go down the JPA road. But there are other ways that a tribe can have a relationship with a GSA, particularly I would think by a carefully crafted contract that has the right kind of provisions in it that will make tribes feel comfortable participating.”
Anecita Agustinez noted that under SGMA, it’s required that the Groundwater Sustainability Plans consider all beneficial users in the basin, whether on federal trust lands or not. GSA boundaries can cover sovereign land, trust lands, public domain allotments, and fee lands that tribes have. She noted those terms are distinct to Indian Country which are further defined in DWR’s guidance document on tribal engagement.
“Some tribes probably have a lot more fee land than they actually do with trust lands because they’ve decided they were going to be a partner in housing or agriculture or investments, and fee land is subject to local jurisdictional control,” Ms. Agustinez said. “So there might be a strong vested interest with that tribal government to work within that GSA because they have a significant amount of fee land subject to that jurisdictional control.”
David Sandino noted that with SGMA, it was an unprecedented part of California history where local agencies decided among themselves who would emerge as a GSA for a particular basin; it also created an opportunity for government to government relationships between local agencies and tribes, whose participation is voluntary. “From the state’s perspective, the state was hopeful that the SGMA process would emerge with a lot of local agency and tribal relationships, whether those emerge from contracts or MOUs or JPAs, and the reason is that the state wanted to advance sustainable groundwater management as much as possible, and the only way that that can happen in a lot of basins is for GSAs and tribal cooperation.”
Mr. Sandino noted that some basins have been able to arrive at models acceptable to tribal communicates, such as the Yocha Dehe Wintun Nation in Yolo County. “They have a long history with local government there and they’ve entered into the JPA and they are a voting member. They were also very careful; I’m sure they had good counsel to protect their issues that were important to them, reserving any rights and the ability to leave the JPA if it doesn’t work, but at least it looks like they are committed to try for that JPA relationship.”
“In the Ukiah Valley in Mendocino, the tribes there are not on the JPA per se, but they have recognition in the agreement as a voting representative,” continued Mr. Sandino. “They’ve committed to participate in those processes, so I would summarize this as evolving process right now as the tribes try to figure out what is the best relationship.”
Anecita Agustinez asked Tom Kennedy about how they had to be flexible in order to have tribal participation. He noted that there’s been some fits and starts and a few iterations. In the beginning, there was an existing MOU that excluded the tribes and had to be abandoned after the San Luis Rey Indian Water Authority correctly pointed out that that it isn’t going to work if everyone doesn’t all get together and make it work.
It was helpful when the County of San Diego got out of the mix, he said. “Some of the counties procurement processes and some of their policies were rather inflexible and incompatible with success, at least in our view, and some of us in the north part of the County don’t trust people downtown because they don’t really know where we are, and so that’s just my sense of it.”
The new agreement was signed about two weeks ago, Mr. Kennedy said.
He also noted that the agencies and tribes operate differently. For example, agencies tend to look at projects on a 3 or 5 year scale and how much it costs, while tribes think of things on a much longer time-scale. “One person told me once, ‘I was in a meeting with some tribal folks, and they said they had to go consult with their ancestors about this,’ and he laughed it off,” said Mr. Kennedy. “But I think that’s probably a pretty good idea for all of us, sometimes to think about it. I said, ‘I have a copy of the US Constitution in my pocket, and those are kind of my ancestors, and sometimes I have to consult that to see if we are on track here.’ So I think some public agencies could learn a few things about how decisions are made in the tribal ways. I don’t want to mischaracterize it, this is just my perception, but we could probably learn a few things.”
THE BENEFITS OF TRIBAL PARTICIPATION
There are some benefits to tribes participating, Mr. Bunce pointed out. “One of them is what we might call ‘a seat at the table’. As long as the tribe is sitting there on their mountain with their arms folded, you don’t know what that GSA is going to be doing or saying, and if you want to frankly keep them honest and keep them doing things that are productive and helpful, you have to be there. And to be there, you have to have some kind of relationship.”
“Another reason is that many Indian people take a very long view of all natural resource questions, particularly water,” he continued, noting that a banner hanging in the Cal EPA headquarters is a quote from Chief Seattle: ‘We do not inherit the earth from our ancestors. We borrow it from our grandchildren.’ “There are a lot of Indian people that take that kind of thought seriously, and if they are persuaded that participating in the GSA will be good for the overall fortunes of the tribe, going generations into the future in terms of water management, in terms of water quality and preserving access to water quantity, I predict many Indian people will decide that participation voluntarily is a benefit, but it’s a choice that each tribe has to make and none of the San Luis Rey tribes has made that choice yet. They are exploring and gathering information and we’re trying to put together a structure that will be attractive, but each tribe will make its’ own choice.”
“From the state perspective, an important aspect of SGMA which we can’t lose sight of is that we want to achieve sustainability, and we cannot achieve it as easily if you don’t have tribal governments involved when these governments hold large lands within that basin,” said Daivd Sandino. “Another possibility is that tribes can also assist with funding. We heard from Brenda Burman [Commissioner of Reclamation, keynote speaker] about money that may be available through grant loan programs, so that’s another possibility. I think from the state perspective, we want to encourage good groundwater management for the long-term, and that’s only possible if you have local and tribal cooperation, so I see a lot of benefits through it.”
“It’s becoming increasingly clear to a lot of local governments that tribes are an asset, not a liability,” said Mr. Bunce. “If you are creative and respectful in the way you approach tribes, you can benefit from that relationship. Look at it just this way; most tribes are not connected to any outside water system. They rely either entirely on surface water on the reservation or groundwater on their own reservation. Their water doesn’t come from Met at all. They’ve been practicing sustainable groundwater management for decades. In some places, in the most primitive way because when the well runs dry, you know you’re pumping too much, so you don’t pump so much. That’s how it works. For people who are operating on a very simple but effective level like that, maybe that will benefit your organization, too.”
Mr. Bunce cautioned not to rely entirely on the feds, noting that he came across a quote the other day. “The Winters Doctrine came along in 1908, which was at the very tail end of the term of office of Theodore Roosevelt,” he said. “There is a document that shows that Teddy Roosevelt was aware of the Winters decision right after it came out and he asked his Secretary of the Interior, Ethan Hitchcock, what does this mean? And here is the answer he got out of his Secretary of the Interior. Remember, the Secretary of the Interior is over both the Bureau of Indian Affairs which has a trust responsibility to tribes, and the Bureau of Reclamation. What the Secretary of the Interior said was that ‘if the Winters Doctrine is fully implemented, development of the entire arid West would be actually retarded if not entirely destroyed.’”
He acknowledged that Reclamation is doing better these days than it used to. “I think one of the things that tribes can bring to the table is a healthy distrust of federal agencies that have shown over the years that frankly that they do more to tribes than for tribes,” he said
LOCAL PLANNING REQUIREMENTS FOR TRIBAL CONSULTATION/ENGAGEMENT
Anecita Agustinez noted that besides the voluntary participation of tribes in GSAs, there are other statutory requirements within the state to work with tribes, such as Governor Brown’s Executive Order B-1011 for tribal consultation, and SB 18 requirements for local governments and tribal engagement. SB 18, passed in 2004, requires cities and counties to consult with California Tribal Governments anytime a city or county amends or adopts its General Plan. David Sandino noted that it was one of the first state requirements for local government to engage with tribes relating to general plans. It laid the foundation for AB 52 which passed in 2014.
“AB 52 that requires state and local governments that are carrying out CEQA processes to engage with tribes in that process, not as a stakeholder but as a sovereign, and puts the burden on the state and local governments as they move forward to let the tribes know there’s a project in their area and if the tribe wishes to engage in a government to government consultation,” Mr. Sandino said. “That also spills over into SGMA related issues and projects that come out of SGMA, and even if a tribe has elected not to participate, there are still going to be consultation obligations on those GSAs to reach out to the tribes and engage in consultation if the tribe wishes, so that’s embedded now in state law and state policy.”
GSP PROJECTS AND FUNDING
The implementation of a GSP will likely mean projects or development of water infrastructure, as well as going through the CEQA process. Anecita asked Larry Rodriguez about potential funding opportunities for groundwater plans and projects under Prop 1 and Prop 68, as well as CEQA requirements.
Larry Rodriguez noted that a GSP is not subject to CEQA, but all the projects that come out of it will be. “Some of those may not be physical projects; they may be management actions,” he said. “SGMA says that you need to develop management actions and projects; management actions may be something like restriction on the ability to pump groundwater because that’s really what’s going to have to happen in a lot of basins is they are going to have to restrict groundwater. If an agency or GSA takes on that kind of action, is that subject to CEQA, and it probably is.”
The funding for projects will likely be subject to the Prop 218 process, so the district would need a majority vote of the landowners to pass the new fee or charge to fund a project. If the project receives federal funding, there will be a NEPA process as well.
“So as we go through the development of our GSPs, it will be a wish list of projects we hope we’re going to implement,” said Mr. Rodriguez. “In most cases, a lot of those projects are probably just still conceptual projects; there hasn’t been a feasibility study or any engineering analysis done on them so they are placeholders. Over the next five years, you’re going to see a lot of those start to mature, so the Districts will start doing feasibility analyses and figuring out how to move these things forward, and once they go through that process, so when they start moving that to real implementation, that’s when we’ll have to start the CEQA process and maybe the 218 process as well.”
PROJECTS AND TRIBAL CONSULTATION
Anecita Agustinez noted that as GSA’s implement plans and projects, it could trigger AB 52 tribal consultation. “Through AB 52 consultation, you may not even be dealing with the tribes that you already dealing with within a basin, because then tribes that have an interest in ancestral land may have an interest in your project,” she said. “So you have to be aware that just because you have a set list of tribes you have been engaged with, the AB 52 process is where tribes have a listing to every state or local agency that they feel will have an impact on ancestral land, and that land may not even be part of a tribal boundary. You may find yourself dealing with not only with federally recognized tribes, but non-federally recognized tribes, so you have to be aware of that consultation process, and be prepared as a local lead agency that that is a requirement that you’ll be dealing with.”
“CEQA clearly applies to any project that a GSA enters into, but it doesn’t apply to the adoption of a GSP,” said Art Bunce. “And it may be possible to devise a project that is performed entirely by a tribe outside the CEQA process. If there’s no state money involved and no approval from any state or local agency and the tribe is doing it all on its own, then there’s no CEQA process involved. There may be specific projects where that structure makes sense.”
“Some of us are very jealous,” quipped Tom Kennedy. (Laughter)
MOVING FORWARD …
Larry Rodriguez reiterated the importance of participation of all stakeholders in the basin. “As we develop these plans, we need to understand the resource that we’re trying to protect, but we also need to understand what we’re protecting it for and whom it we’re protecting it,” he said. “So if the tribes want to protect their rights, whether they are using them today or not, it’d be important for them to be at the table to make sure that we set up our metrics and our sustainability indicators to protect that potential future use, whether it’s water quality or just volume of water in storage. Our ability to recognize those sooner is really important, so from my perspective, it’s making sure that we have adequate participation in the process.”
Tom Kennedy predicted that once they had the technical data and determined sustainable yields, the tribal federally reserved rights will dominate the available yield in the basin because some of those rights have already been quantified for them. “There’s a lot of people in that basin who are pumping water that will now be pumping native water that they don’t have right to … so I predict that there will be a robust market for water for the rightsholders to lease their rights to others to pump for the time.”
He noted that price will be an issue; the Rainbow Municipal Water District is an importer of water and they pay $1600 an acre-foot. “Some of the people who are pumping now with rights that will be probably later determined not to be theirs, are paying essentially the cost of electricity and the costs to drill a well, it’s going to be interesting how that gets allocated and what the markets do there to establish the price of water, and then whether together everyone wants to agree through different allocation schemes or ways to cap markets,” he said. “Because if it was easy enough for the municipality to buy up all the water because it was way cheaper than imported, then we have a bunch of dead trees. Most of the agriculture in our area is trees, you can’t just fallow them for a year and bring them back. So we might have some interesting discussions on its impact on ag in the valley and some of us who are willing to pay more will opt out because it would have negative community impact.”
Anecita asked Art Bunce and David Sandino for their final thoughts.
“I think this is a frontier area,” said Art Bunce. “This is an area of the law that nobody has ever been in before, and it’s an opportunity for tribes to exert a dormant sovereignty that they have had forever, but now it’s going to come out in the open. The challenge is going to be to make it happen in a constructive way that benefits the community, it clearly benefits the tribes, and creates benefits for everybody rather than conflict, and I think people of goodwill can make that happen.”
“This next phase relating to SGMA is where it’s really getting exciting,” said David Sandino. “The GSA formation was important but the plans themselves now are going to be key, so this is the time for everybody to stay engaged and participate because this is going to determine whether or not SGMA is going to work or not.”
Audience Question: I was really struck by your guidance around how to have good tribal relationships and the mechanisms you were talking about and the contrast between a contract and a JPA. I heard some really important things: be respectful, be creative, and acknowledge the sovereignty. I’m still confused about the practicalities of sovereignty and what that means when you’re wanting to be creative, respectful, and really engaged in a way that makes sense. I was wondering if you could go deeper into that concept of sovereignty and how it relates both from a government to government perspective? Also I’m part of a non-profit, so how does it relate as a community member and non-profit?
“Remember that the tribes are governments,” said Art Bunce. “Because they are governments, they have their own internal powers and responsibilities. Their responsibilities are to their people. It’s good that they have good relationships with people on the outside, but that’s not their primary responsibility. Their primary responsibility is to better the lives of their own people. And they can often do that by having good relations with people on the outside, but that’s the secondary concern. The primary concern is improving the lives of the Indian people themselves.”
“If people on the outside will remember that tribes are not just like the Sierra Club or the Surfrider Foundation and are governments like this, that goes a long way,” he said. “Because years ago, you couldn’t convince anybody of that. They figured it’s like the Knights of Columbus; ‘I’d like to join this Indian tribe, give me an application form.’ It’s not like joining the Rotary. There’s a lot more to it. As you engage with tribes and begin to form relationships with people, these things start falling into place. When you have the phone numbers of the key people on speed dial on your phone, that’s good, because you know you can call them up and they know they can call you up and they’ll take the call and deal with you. It’s important to establish and cultivate those kinds of relationships so when issues come up, you can solve them over the phone, over the quick in person meeting, even if its on a government level kind of issue. And people who have worked together for a period of time can establish those kinds of relationships.”
“The tribes are sovereign nations and they are not just like another agency,” said Tom Kennedy. “In California law, when I’m dealing with the County Water Authority or the Vista Irrigation District, there are certain sets of laws that govern all of our interactions that are all under the California Constitution as a framework. The tribes are outside of that. They are essentially the same as the state, as far as the level of government. So as much as you may not like that, that’s just how it is, and so once you get over that hurdle that this is a different paradigm, I can’t just say, ‘per statute xyz you have to do this’ – that’s just not how it works, so collaboration and cooperation is way better than the other methods of getting things done.”
Bo Mazzetti, Chairman of Rincon Band of Luiseño Indians and President of the San Luis Rey Indian Water Authority was seated in the audience. He added, “I think what you’re asking is how are tribes different? First of all, we have to start with the US Constitution and the Commerce Clause. The Commerce Clause says that only Congress shall regulate commerce with Indians. Indians are a political division, not a minority; we’re a political group within the United States. What that meant then by the relationship of governments and treaties, each tribe in the state, 109 federally recognized tribes, is an independent non-political division within the state of California. In other words, the tribes, every one of our positions, like myself, by federal law, I’m equal to the governor since I’m chairman of our tribe. Our vice-chair is Lieutenant Governor. Our Attorney General by law is equal to the California Attorney General, by federal law and statute. So we’re a government within the state of California, but we are not a political subdivision of the state. Cities and counties are made by state law. We are federal .. directly equal to the state of California and all the jurisdictions.”
Audience question: Why do contracts work better than JPAs?
“In 2008, a bill was passed; it was the first time tribes could enter into a JPA,” said sai Bo Mazzetti. “Before that, they were prohibited. Lack of language so they couldn’t. … the downside, this is the way we look at it. We’re embedded sovereigns within the state of California. We are sovereign community created by the federal government. When you join a JPA, you give that up. There’s the Brown Act. We have meetings all the time with tribes. The sovereignty waiver, the Brown Act, the Public Records Act – there’s just a lot of acts that why would we take that onto our tribe.”
Audience question: My question has to do with the process of quantification and sort of the wariness of data collection that accompanies that process, sort of how you deal with that discussion …
“Tribes have had a bad experience providing data to the state when the state has given us strong assurances that they data is going to remain confidential and it didn’t,” said Art Bunce. “In order to make data collection work for a tribe that chooses to participate in the GSA process, the mechanism that has been discussed as giving the maximum protection for tribal data works like this: The data never goes to the GSA. The data goes to the consultant only. The contract between the consultant and the GSA says that the consultant will hold this in complete confidence and share it with nobody, and the GSA does not have the right to get the data from the consultant. There’s also a pretty strong non-disclosure agreement between the providing tribe and the consultant, so the tribe has a good assurance that the data goes no further than the person who actually needs it, and any information that the consultant provides to the GSA is in such a format that it can’t be identified by tribe or parcel or anything like that. That’s what the current thinking is … “
Bo Mazzetti added, “Our reserved water rights under the Winters Doctrine are not quantified. It’s as much water as we need for now and in the future. … What water we need, we need.”
Anecita Agustinez closed with this comment: “Where we get issues with quantification and sovereign immunity and trust relationships with tribes is that Oroville was built on 40% of tribal land that was owned by the Maitus. Folsom Lake was also built on traditional sites. We heard earlier about Shasta, so these are issues about the discouragement of tribal relations, so SGMA now is an opportunity to go forward with that understanding that this is less than a generation away from tribal history and stories.”
FOR MORE INFORMATION …
- Click here for DWR’s guidance document: Engagement with Tribal Governments
- Click here to visit the DWR’s Office of the Tribal Advisor (with maps, publications, and other resources)
- Click here to view documents on Tribal water issues at the California Water Library.
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