court my name is roger false and i i represent the water district on this appeal are present the opening argument my colleague steve abbott will present a rebuttal this issue of course this case raise the question of whether the tribe in this case the ag i cal in detroit has a reserve right in groundwater underlying its reservation and the question breaks down into two overriding questions the first  whether you missed those limitations apply in determining whether a reserved right impiously exists or whether those limitations only come into play in qualifying the right then the second question right that the party stipulated to try for case the case yes that's correct and am i right that the b m for goodness sake correct me if i'm wrong that that not just a try for cape but that you agreed upon what the first issue would be decided in phase one forward i'm interrupting right at the beginning but i can tell you what my my problem is it seems to me that if the if phase one is try answering the question whether or not the tribe had the reserved right the groundwater is never the existence of the right yes then i have a real hard time with the application of winters and new mexico for the reasons that you're just getting ready to address and one of the things i would like you to think about is that and i'm not so sure it matters when the mexico gets applied as long as it gets considered and i don't think the discourse has not been applied i think it's didn't apply to phase one so maybe you could just keep that in mind as you go forward that would help me w well normally the answer would be yes then i but that issue is never going to build the tribe in which case has been adjudicated right use surface water and so the question of whether the tribe has a reserve right at the surface water and surface water is not available for more than perhaps a few weeks in the year so the only water that everybody relies on is the underground water right the  and so the question is do they have a right inherent in the creation of the reservation to water from below the surface isn't that what we're wrestling with here well i think that is certainly is a major issue in the case in fact is this the  think the predominant issue that we presented in our opening and brief reply rees well argument i guess it really it's a very pragmatic question and that is how can we possibly assume that when the president and then later congress through its various statutory changes created this reservation that it didn't contemplate an entitlement to water because otherwise the in all the indians would have died there there would have been any way to sustain life but we're not making an argument that the dr does not have a reserve right and service when the question was whether forget about surface water because there's not enough of it but you get them through a year  seventy eight held limited the reserved rights often so these rights are not broad they're pretty limited they're limited in the sense that the right exists only if it is necessary to satisfy the primary purpose reservation and prevent them from being tarred in any case that the government reservation was a national forests or not and water that that originated in the forest that was later being used by downstream landowners for agricultural purposes us through here we're looking at a reservation to which the tribe is being relegated land is created in the name of the tribe so that the tr members can engage in subsistence farming and other activities to build their homes there and to make that their their permanent dwelling and that's a very different reservation from the reservation that was that issue in new mexico is it not well first of all to respond to the first response your point would be that the ninth circuit in two cases the want case india their case has held that the limitations of the reserved rights  in new mexico apply to indian reservations so that's the first answer the second answer and this is i haven't had a chance to see this yet and it responds to i think all of the questions that the panel asked is that the tribe does indeed have at the summary of argument in your brief you say under the reserve grade stacked in the government and reserving lands from the public domain for federal purposes such as indian purposes may imply a delay in tend to reserve water rights for the land so you greta that you say a new mexico the federal waterway doesn't play adly reserved only if it's necessary to accomplish the primary reservation purposes you agree to that so that if it's necessary to accomplish the primary reservation for this is then as a reserve right you agree all that right he said in your brief ok why would one distinguish at that level between surface water and groundwater i don't get it it's all water some of it's above the ground some of it's below the ground all has to hydrogen molecules on uy would what's the principal reason for determining where the right is to distinguish between what's on top of the ground what's below ground there is a very logical basis for distinguishing between service water and ground water and the distinction is based on the fact that the winner's doctrine was established for the purpose because for an indian because no one indian appropriators were acquiring prior rights to all the water of the west under the state priority rule of first in time first in right and because of that indian tribes had no water for the reservations that's precisely what the once the supreme court held in winners said all these upstream appropriators in the milk river  montana had acquired prior rights under priority rule the first in time first right therefore there was no water for the tribes reservation but the priority rule that applies to the surface water does not does not true if the federal right exists california law is present we absolutely agree and then we have to answer the question whether in this particular case there is created a federal right in the tribe right to groundwater appurtenance to the creation and purpose of the creation of this reservation the federal will present california's long groundwater if there is a reserve right but the so let me ask you i understand we all understand your your briefing is excellent by the way and i think we get that so let me ask you this i think your brief talks about the characterizes the district court opinion as holding that there is district court went on to say whether groundwater resources are necessary to sell the reservations purpose that is one prong of the winter's test whether it's necessary is a question that must be addressed in a later phase of the litigation and understanding that that the district court said that which means i think it means i'm i'm i get that you know new mexico later come to that later isn't it possible to characterize this district court ruling as not establishing that the right to groundwater exists in this tribe but that it might depending on what happens in phases two and three no i don't think buford characterization well ok ok i know i mean that's the answer i expect from your briefing but look but what about this statement then which is a quote from your nine is phase one right the winter stress test is what we're talking about in phase one isn't it regarding the existence of the right and that's a two prong test whether the reserve water is necessary to fulfill the purpose and whether the water is apartment so we're going to assume that the aqua for we're talking about is apartment to the reservation i think and then the question becomes necessity so it's possible to read this as a court having ruled on one prong of the winter's test in other words if you're going to get the tribes going to get the water the reserved ruling of its that it's entitled to a permanent groundwater if it's necessary and so one of the well it goes back to this an issue about i'm not sure why it matters that much really whether the new mexico test is considered at phase one or not because the court has staked out here and i read the district court as being very conscious of the fact that it's really going to have to make a determination a much more complicated determination and much  tenths of determination about a necessity i think our view is that this case raises a very fundamental question of the reserve right starker and the question is twofold i mentioned those in my opening comments the first question is whether the dry weather the reserve or whether new mexico's limitations come into play in determining whether there is a reserve right and then secondly if they do come into play with the tribe has a reserved right here council i think it absolutely could and their different way that it would have been different ways to skin this cat and that's why i think it's so important by my read so please correct me that the that the lawyers in this case the parties stipulated to try for it's just that given that that the parties decided in the court agreed that it would be efficient and appropriate to first address the existence of the right understanding that is a given because that's what we've got and then understanding that this winter's ass required the court to to in order to answer whether the right was exists have the answer whether or not access to ground water is necessary to fulfill the purpose what new mexico look to the same question i i can't agree with that your honor i think new mexico i did not look at the quantification issue new mexico look to the question of whether there was a reserve right in the first primary purposes were to conserve water flows and to provide a supply of timber but not to provide water for environmental recreational and wildlife uses and therefore the court said the united states does not have the reserve right for those matter purposes and therefore the supreme court did not reach the question of how to quantify the right is simply said these rights don't exist in the first instance that's exactly what we're asking for this court to do but to deter me isn't my aunt why isn't my distinction between a tribal reservation which is created to support human habitation and the creation of a national forest reservation for purposes of preventing flooding downstream and so on and providing timber different and therefore requires a different analysis to answer the legal question as to what water rights attend the creation of the reservation the creation of this type of a reservation involves different purposes than the creation of a national forest well i agree with that i think the purposes of the tribes reservation are different from the purposes purposes whatever those purposes are and prevent them from being entirely defeated so the purpose of buttons but who doesn't doesn't that position acknowledge the possibility that depending on the type of reservation that congress is creating and the purpose for which it's created the answer to the question of what water rights are pertinent to this reservation will be different depending on the type of reservation and i think that  the purposes are different the the needs of the the holder of the reserve right might be different those will have to be considered in detail in applying the new mexico test you've got about two minutes left you want to save some rebuttal time for your colleagues oh yes it would certainly make y first start by addressing one point that mr olson made and that was his statement that this court has held that this primary secondary detention is a political goal to indian reservations in fact this court has held on two occasion explicitly in the adair case in particular that the new mexico primary secondary distinction is not directly applicable to indian reservations and that's because because of the indian canons of construction  quote is not directly applicable to winter's doctrine right on indian reservations close quote but it also says that that new mexico established several useful guidelines that's exactly right and the reason it does provide some guidelines but the reason it's not directly think that and that's because the homeland purpose of the calling in favors aeration is a primary purpose under new mexico's test for which water was reserved in every case that a court has looked at the issue of whether the united states reserved water from an emmy for an indian reservation dating back to winters in one thousand nine hundred eight all the way through this court's post new mexico jurisprudence and adair and walton courts have held that when the united states reserves water for an indian reservation water is necessary to meet that need and therefore it is reserved but this is a big deal case council this isn't this isn't surface rights this is the first time we would have talked really directly about groundwater this is a very significant issue  adversarial position i am just trying to be really clear that i when i read your briefing it keeps trying to i think convince me that this is he almost established rule and it's and it's not right is that the supreme court has never ruled on the issue of whether federal reserve rights apply to groundwater that is correct very clear and caper at that to make the point that it wasn't that it wasn't had not yet ruled on that issue all however our position is that this court did rule on that issue in in the caper case that ruled that federal reserve rights also include groundwater and that the supreme court did sidestep that issue by saying we don't this isn't ground water it's earth water water and very that it's i sat there and then but it did not disavow the ninth circuit's ruling it said it was a very well reasoned opinion and then it went on hold that the groundwater that it could couldn't join the groundwater pumping and i think a careful reading of the cave particularly the last sentence of it says that we hope we are we have reserved a parting groundwater to preserve our permanent water which is the groundwater there and joining to preserve the pool the underground pool which they actually considered surface richard's i've read it carefully i like the ones where the supreme court affirms us i read it several times trust me but but but that was different geologically it's different right my understanding here is of course in that case the devil's pool  pumping that was going off i think by rant and then you could literally see the pool level dropping as the ranch was pumping and so so that was very different because i think i think it's uncontested here that the we're talking about a water source that is distinct is that right they are just things although there is one thing that i did want to point out and that is in the district court's order certifying the case judge for now did make a slight error he said there was no hydrologic connection between surface water and groundwater and while the parties concede and both agree that the ground water doesn't feed the surface water it's not true that the surface water doesn't feed the groundwater referring to the injection of water from the colorado river into the that is part of it yes your honor the i mean to the water districts recharge program is based upon spreading surface water into the valley floor and letting it percolate at the ground to recharge offer also the white water river  flows into the ground and also recharge asako for and and you'll find that during what portions of the year is there surface water in the white water or every time i drive down there it's usually a dry creek still in a position to be injecting additional water back from the creeks back into the aqua for it is confusing the both of things in your brief i'm sorry could you say that question again yes you have and i rely upon the creeks for your water supply but you all your brief also says that you're reintroducing water from the creek back into the dock or right i would say that the tribe is not really relying on the creeks for its water percent of that water is groundwater about seventy five to eighty five percent of the water that we get from the w way is ground water and that totals about ten thousand acre feet of water annually the tribe doesn't to your question the tide doesn't really rely on the surface water the  just flows right into the ground to recharge the aqua for andreas creek has very limited use it's not a water resource and that the tribe relies on in fact the parties of stipulated that we're not going to be seeking surface water and the stack relying on telephone use colors of rights doctrine they argue that the tribe doesn't need a fairly reserved right because it has rights under a california court has right doctrine they're basically asking for california groundwater exception to federally reserved rights for groundwater  but there is several reasons a starting to fail first is judge tom and pointed out earlier federal reservations of water create federal rights that are not subject to state law the supreme court instructed this in arizona versus california when it's a big the reservations are governed by the statutes executive orders and treaties establishing the reservations this is reaffirming caper and again by this court in walton and although congress has the power to cede this authority and ha explicit deference to congress just on state law and other areas but they point to no instance where congress has deferred to state law with respect to indian reservations and three that new mexico has to be applied at some point new mexico is governing law i think it's consistent with a bear it's going to have to be used as a guide post as opposed to directly applicable it's hard to see how this doesn't work when you're talking about a homeland purpose for a tribe and then just real quick because i know we want to hear from the united states the the call to the sustainable got ground water management act also acquiesces to the federal supremacy was affects us on the reserved rights it hol that if there is ever a conflict between federal rights and the ground water rights that federal reserve rights shall be ready respected and full and then lastly and this is really important is that the tribes rights to  ives rights to ground water would not be adequate to protect the tribes federally reserved rights federal reserve rights are meant to ensure that water is available in the full amount to meet the reservations needs of the world to rights are variable and subject to diminishment based on other parties and other water users needs and this is a test that the supreme court has rejected as having being applied to federal reserve rights it rejected in arizona the california paper and then this court also in walton so the situation to put this in the layman's term is they're competing with the golf courses in the resorts and the people who live in palm springs and so on for  priority over that water that's right and if we were if there was ever an adjudication of the ground water the tribes rights would under california law would be subject to the management based on those competing  andreas create right ok that's was my understanding and so i'm just trying to put that together with e r to thirty one to thirty two it says the most recent numbers which are dated it's twenty eleven to twenty thirteen it shows that the tribe is purchasing less than that sixty one hundred sixty three hundred acre feet so that's why i'm trying to put together you know his argument is that this existence of this right depends upon the tribes showing that it is necessary to fulfill the purpose well the well the tribes water  any point in time isn't relevant it's a presently perfected right as of the date of the assault was another reservation and so for the present and future uses so as an initial matter the tribe use of water at any point in time isn't relevant but to your question  federal reserve water rights and the only theory here is that if the tribe could achieve purposes of its reservation using state law water rights that it doesn't need a federal water right or when the united states reserves this land for a tribe it reserves at the same time sufficient water for the long subsistence of this tribe on that land so that the the manner in which the state has  for the tribe is that contested i don't believe so your honor that and i believe what the water district say is that that would create a situation where new mexico didn't work because you can't have just one big broad purpose i'm not sure that's consistent with this court's law but to the extent that it is and if it isn't that's a question for the quantification face because clearly the homely purpose of this reservation implies a substantial reserved water right and i'd like to push back just a little bit on this court's law on the reservation of groundwater in capered the supreme court said we hold that the united states can protect its water from subsequent diversion whether the diversion is of surface or ground water yes that here but it was a connected system there hence my earlier question by and and the court was very clear to sidestep and say this is surface water at issue in that case i agree that those that those two facts are correct but i don't agree that that means that all explain why i think the water here is like the ground water here is a part of the land that was reserved for the for the indians over which the united states had complete dominion at the time of the reservation that water was then reserved along with the land to the extent that it was necessary for the purpose for which the wizards or the indians or if that water is going to provide the necessary resources for the long term use of the tribe protection of that resource is a critical interest of the tribe and here its being subjected to diversions by others that may threaten the long term value of that right or an availability of that water to the tribe so i see very little distinction factually between pulling the water out from under the fish and pulling the water out from under the tribe it isn't a faction of the sanctioned i think you're proposing council would say it's a legal distinction which is the united states supreme court has never gone there  got not gone extended the winters doctrine to ground water right except that it's said that the ground wire that the captured capered were pumping was reserved for the fish i am understanding as i said i like it when they have from us but they were very clear there  and you have a number of different users of that water including the communities that have grown up around in within the reservation that are not in indian country and everybody is drawing water out of that underground aquifer and they're trying to recharge it with water brought in from the colorado river i don't know maybe from the state water project but they're taking out more than they're putting back in correct so that's what makes phase two such a difficult endeavor for the district court if it gets that far right it is a come complicated question to determine how would minister a reserved right in the circumstances record but it's an important point so thank you yes so it's just the one remaining point about state law that i wanted to make is that if this court in a deer made clear that a federal reserve water right can be recognized whether or not a corollary right is available under state law to be of an availability of the kind of right that was reserved here in a corroded right system is irrelevant to the existence of that reservation federal reserve water right under this court's law and that takes into account new mexico so i think essentially i have very few points to add i think the court has addressed most of the important points i think that the issue here is whether new mexico changed necessity which it did not and whether mexico is a possible law so it may need to be considered in the in the event that there are not multiple purposes determined for this reservation i don't i'm not certain whether the rule in new mexico actually changes anything very important here we haven't gotten there yet right right it's it's about how much water was reserved and the circumstances of that case were where congress came back and said oh and we want this land to do these additional things to and the question was whether by doing that it had reserved additional water and that was the that was what the court says he was no two and in this case nothing like that has happened so whether new mexico makes a difference in considering rules for a reservation like this is open to question i'm not certain that it has any relevance whatsoever thank you ms peterson always  form of aboriginal rights and recite to the federal when church doctrine in our view you cannot make the conclusion that the tribe has winter's rights to ground water without first applying the necessity toes to mexico  hundred seventy seven memo from the field agents just before the second executive order was issued first purpose of the department is to now ensure the mission indians permanent homes so they get a domestic use with land and water enough that each one who will go up on the reservation may have in order to cultivate a piece of ground irrigation those are the two purposes you then judge whether the reservation would entirely fail if you failed to recognize a reserve right when you take into account that california law gives them a corella right that raises them to an equal status to the railroad land that join them in the alternating sections which predated the reservation those railroad lands water rights can't be taken away by the executive order creating the reservation we believe the trial court erred by putting that issue walk to the quantification phase you can't say there's a reserve right to groundwater in last you have applied the necessity test in the first instance but as i said at our nine the district court concluded by saying whether  groundwater resources are necessary to fulfill the reservations purpose it's a question that must be addressed in a later phase of this litigation so it's not he's not going to dress and he's not drive it after we go through tremendous expense we have phase two issues which stipulated to was he would decide whether there's a reserve right to groundwater in phase one he hasn't made the necessity determination to arrive at that conclusion he has put it off to other phase that is what we contend is revers awaits sixty two thousand acre feet a year that's for the entire groundwater basin for the entire valley there are other indian reservations in this valley although that's pretty dated information as i indicated i've got that  site and then the water just strikes bring in a tremendous amount of water in the lower valley the district brings in three hundred thirty thousand going up to four hundred fifty nine thousand colorado river water through the coachella can now the two districts exchange with the metropolitan water district their state water project water for colorado river water out of the that's politan aqueduct the table a right that the state that the districts had  also where the district applies it's junior appropriate of right on the river which is subordinate to the creed rights to the tried to recharge what flow is left in the white water river which is mostly storm flows and snow melt in the winter and spring but we still haven't that shorty to spider and the water districts are working to eliminate the overdraft that's why we've increased our supplies of imported water to water supply chapter  colorado river water to supply the golf courses to get irrigators on to colorado river water who are currently pumping ground water we have a responsibility to manage the space in the long term there's thirty million storage we have plenty of time to fix the problem may i ask one more question just kind of our own over time but i do think it's important that this is presented at various places in the preaching as though these are two entirely separate and or support the surface strains that part we've got what about the other way around white water river clearly recharge the groundwater base and whether the other streams get that far down to percolate any water into the groundwater basin and not sure as clear on the record all right thank you and thank you for your patience counsel thank you all for your argument it's a very interesting significant case and we appreciate the importance of the decision you have laid at our feet we'll get you an answer  soon as we can cases argued is submitted for decision and we are in recess until tomorrow morning