Court Backs Indian Groundwater Claims

Will Action Broaden ESA Enforcement?

This photgraph shows a water tower in the african mation of Mali. The photo was part of an exhibit titled, "Africa: Photographs by Lynn Davis," shown at the University of Arizona's Center for Creative Photography

Officials ponder the implications of the Arizona Supreme Court's recent ruling that Indians' rights to groundwater trump the state-granted rights of cities, mines and others. Most agree that the Indian water rights cause will undoubtedly be well served, but some speculate that the decision also will provide a strategy to expand enforcement of the Endangered Species Act.

In a unanimous decision, the justices rejected the premise that state laws have precedence in determining who may pump from underground aquifers. The court noted that "some Indian reservations have been entirely dewatered by off-reservation pumping." Allowing wholesale groundwater pumping to continue — even if state law allows it — would undermine the tribes' reserved claims, the high court stated. State groundwater law therefore does not apply when it conflicts with federal reserved water rights according to the court.

"It's certainly a victory for the Native American position," said Marvin Cohen, an attorney who represents the city of Tucson in water disputes.

Chris Avery, Tucson's senior assistant attorney, stated that if the ruling holds it could "hasten the decline of the era of cheap groundwater."

The ruling displeases powerful interests including cities, farms, and the mines, who may request a rehearing or appeal to the U.S. Supreme Court. Some attorneys have pointed to apparent inconsistencies between the Arizona Supreme Court decision and the Wyoming Supreme Court's 11year-old Bighorn decision as grounds for appeal.

Others believe the ruling will support the federal government's efforts to broaden its enforcement of the Endangered Species Act. They say federal officials could claim groundwater pumping depletes flows necessary to ensure the survival of an endangered species and then act to restrict such pumping. Federal water claims, whether as a reserved right for tribes or to uphold the ESA, will prevail over state laws.

"I have seen this coming for a long time. What is happening — and a lot of people tend to agree with this — is that the federal government, with this ruling, is in a better position to exert its claim to water rights, both groundwater and surface water, based on violation of the ESA," says Don Young, principal of Westwater and recently retired from the Arizona Attorney General's Office.

Young views the recent decision in light of Cappaert v. United States. This case involved a pool, located on federal land, that was the only remaining habitat of the Devil's Hole pupfish. A nearby pumper, who was in compliance with Nevada law, caused the water level to drop, threatening the pupfish. The U.S. Supreme Court enjoined the pumping, claiming the water in the pool was set aside for a federal purpose and was therefore protected, regardless of state law.

"In Cappaert pumping was restricted to protect a surface water species in a fairly localized area, and we have the same thing on a much broader scale on the San Pedro," says Young. He expects environmental groups will soon file suits based on the recent Arizona Supreme Court ruling.

The San Pedro, a river of controversy, has been the focus of varied law suits. Its flow threatened by pumping, the river provides habitat for many species. Recently Interior Secretary Bruce Babbitt threatened federal intervention if the state did not take more effective action in preserving the San Pedro River.

Arizona's failure to define the interconnection between groundwater and surface water puts the state at risk of federal agencies taking the initiative, to better enable officials to determine when groundwater pumping is dewatering a surface water source. Determining when underground water would be considered a subsurface flow of a stream is a hotly and long contested issue in Arizona courts.

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