Agua Caliente tribe to keep up water fight, leader says

Ian James , The Desert Sun 4:58 p.m. PST January 26, 2016

(Photo: Official White House photo by Allison O'Brien)

Nearly three years after the Agua Caliente Band of Cahuilla Indians sued the Coachella Valley’s largest water districts, the two sides remain just as far apart in a case that could force changes in how water is managed locally and set a precedent for similar disputes nationwide.

Agua Caliente Chairman Jeff Grubbe said he thinks the case is going to take time and the tribe is not in a hurry.

“We’re patient. This is a top priority for my membership and we’re going to see it through no matter how long it takes,” Grubbe told The Desert Sun. “We’re going to keep fighting for those rights.”

Grubbe answered questions about the lawsuit during an interview last week at the Agua Caliente administration building in Palm Springs, also touching on his meetings with President Obama and his tribe’s relationship with the federal government.

He said Agua Caliente leaders are taking a long-term view with the federal lawsuit and hope to obtain rulings recognizing their rights to groundwater and granting them a “seat at the table” to help manage water alongside the agencies.

The Agua Caliente sued the Desert Water Agency and the Coachella Valley Water District in May 2013 in an attempt to assert rights to a portion of the area’s groundwater. The tribe accused the agencies of imperiling the aquifer by allowing its levels to decline over the years and by using saltier, less pure Colorado River water to offset the amounts drawn out.

The water agencies have defended their efforts to deal with the long-term problem of groundwater overdraft and have insisted that water from the Colorado River meets all drinking water standards.

“We attempted to sit down and work all these issues out with the water agencies, and it went nowhere,” Grubbe said.

“We’re still open to any sort of talks that they want to have, settlement talk, I mean, we’re open. But I doubt they are. They’re going to stay on their side and we’ll stay on ours. We’ll see what happens.”

Deciding on one of several issues in the case, a federal judge  ruled in March  that the tribe has a "reserved right" to groundwater. CVWD and DWA appealed to the federal Ninth Circuit Court of Appeals, which in June agreed to hear their case.

Grubbe said other tribes have been watching the lawsuit and have been supportive. If the Agua Caliente win the case, he said, the result should help other tribes in their own disputes over water rights.

“We’ve had tribes throughout the country wanting to get involved,” Grubbe said. “They’re a little taken aback on how the water agencies have treated the tribe and how they’re doing business.”

One of the concerns that prompted the lawsuit, Grubbe said, is that the water districts are using untreated water from the Colorado River to replenish the aquifer.

Grubbe said he views the higher levels of total dissolved solids (also known as TDS) as a problem, as well as the pesticides and other contaminants that may end up in the Colorado River. He said that use of “dirtier water” may not have much of an effect in the next several years but it could harm the quality of the area’s drinking water in the long-term.

“It’s a contaminated water going into a pristine aquifer,” he said. “We obviously would want to see that water cleaned – cleaned before it’s put in the aquifer. It doesn’t matter if it costs money. It’s the right thing to do, I think.”

The water districts strongly disagree. DWA General Manager Dave Luker said in an email that Colorado River water is used for drinking water by millions of people across the region. He said not using that water to recharge the aquifer would be irresponsible.

“Replenishment with Colorado River water also has water quality benefits,” Luker said in an email. By diluting the amounts of the naturally occurring chromium-6 in the aquifer, he said, that water from the Colorado River has helped decrease the levels of the contaminant in the water supply of the west valley.

“Desert Water Agency is the only local public water agency that has chromium-6 levels below the state’s new strict standard. Colorado River water is also nitrate free,” Luker said. “The idea of treating Colorado River water before recharging it is infeasible due to the infrequency of deliveries. If it was done, it would be astronomically expensive. Cost may be no object for the Tribe, but it is for DWA and its customers.”

Luker also said it was the tribe that broke off talks in 2014, and “they have made no suggestions that they are willing to settle.”

If the appeals court agrees with the initial ruling by U.S. District Court Judge Jesus Bernal, the lower court would go on to consider other disputed issues. Subsequent phases of the case would determine whether groundwater is needed “to fulfill the reservation’s purpose,” and the quantities of water to which the tribe would be entitled.

Ultimately, the Coachella Valley’s aquifer could join a list of 23 other California groundwater basins that have been adjudicated by courts. In those cases, a judge typically divvies up the water supply and determines how much various parties can pump. The cases often require years of litigation and can end with a judge appointing an independent “water master” to oversee water management.

In  court documents , both sides in the lawsuit have cited details of the reservation’s establishment in 1876 through an executive order by President Ulysses S. Grant, as well as a subsequent order by President Rutherford B. Hayes in 1877 setting aside additional lands for the tribe. The tribe and the water agencies have also disagreed on the implications of a landmark 1908 Supreme Court decision, Winters v. United States, which affirmed that Indian tribes are entitled to sufficient water supplies for their reservations.

Responding to Grubbe’s statement that the Agua Caliente tribe hopes to participate as a decision-maker, Luker said the tribe already serves as a “planning partner” for the area’s regional water management plan. He said that means the Agua Caliente have the same seat at the table as city governments, the Coachella Valley Association of Governments and other stakeholders.

Managers of the water districts have questioned how the Agua Caliente would use the water rights if they prevail in court.

“DWA asked Agua Caliente how much water they want rights to, and in those talks the Tribe did not respond to that question,” Luker said. “DWA cannot give away water rights. The water rights belong to the people.”

The Agua Caliente reservation spreads across more than 31,000 acres in a checkerboard pattern that includes parts of Palm Springs, Cathedral City, Rancho Mirage, and the Santa Rosa and San Jacinto mountains. The tribe, which has approximately 480 members, owns developments including casinos in Palm Springs and Rancho Mirage, and has plans for  new developments  on tribal lands.

The tribe is also fighting Riverside County in federal court over a special tax paid by those leasing tribal land, arguing the tax violates its status as a sovereign nation.

Grubbe has often said the lawsuit against the water districts is aimed at safeguarding the area’s water supply  for all residents. In the interview, he emphasized what he said are fundamental differences between how the agencies manage water and how the Tribal Council views water issues.

“The board members on the water districts’ boards… they’re business-minded. They’re looking at profit, they’re looking at what they can do to run efficient,” Grubbe said. The leaders of the Agua Caliente tribe, he said, are more concerned about addressing long-term water issues now in order to prevent problems for future generations.

“We’re looking at these issues, how bad they can get 100 years from now, not just 10 years from now,” he said, “and so that’s a huge consideration of why we filed that suit.”

Although it’s not an issue in the lawsuit, the tribe also has a historic cultural connection to the water that bubbles up in a hot spring in downtown Palm Springs. The tribe and the city are both named after the Agua Caliente Hot Mineral Spring , which flows into an underground chamber at the site where the Spa Resort hotel was demolished last year and where the tribe now plans a new development.

Since the court case began in 2013, much more attention has been focused on water issues in California due to the drought. Gov. Jerry Brown declared an emergency and ordered a mandatory statewide cut of 25 percent in water use in cities and towns across the state. People in the Coachella Valley have responded by using less water, though the area’s six water suppliers have still largely fallen short of the state’s mandatory conservation targets .

Grubbe called those efforts beneficial and a start in the right direction.

“It’s something they should have done, though,” he said. “It shouldn’t have just happened while we’re in a drought. It should have been happening before we hit the drought.”

The Desert Sun has repeatedly analyzed measurements of groundwater levels for more than 300 wells in the area and has found significant long-term declines in the aquifer in much of the Coachella Valley, even as imported water has helped partially counteract that trend.

The U.S. Department of Justice has backed the tribe in the water lawsuit, and Grubbe has brought up the issue in person with President Obama.

The two have met several times, both on the tarmac next to Air Force One in Palm Springs and in Washington, where the president has convened annual conferences with Native American leaders. Last year, Grubbe attended three meetings with the president and White House staff in Washington.

The Agua Caliente tribe has long maintained relationships with presidents and members of congress from both parties. Grubbe said Obama and his Cabinet appointees have put a new focus on relations with Native American leaders.

“They’re open and easily accessible to tribes,” Grubbe said. “It’s something that we’ve never had as much as we have now.”

He said the administration is “working with us side-by-side” on the water lawsuit. Grubbe said the subject didn’t come up during Obama’s most recent sit-down with him and other tribal leaders last year. Instead, Grubbe said he thanked Obama for his stances on climate change.

When Obama stood to leave, Grubbe recalled the president shook his hand and said something like, “We’re not done yet.”

“We’ll see. It worries me who the next president will be and how that relationship will go,” Grubbe said. “This has been great. Just to have that access to the White House is a first for Indian country.”

Ian James can be reached by email at ian.james@desertsun.com and on Twitter: @TDSIanJames

http://www.desertsun.com/story/news/2016/01/25/agua-caliente-tribe-keep-up-water-fight-leader-says/79033960/