By Mike Godbe, CILS Bishop office Staff Attorney
California faces record-low snowpack, with 94.7% of the state currently in Severe Drought and 85.4% in Extreme Drought. It is critical for California Indian allotment owners and tribes to take stock of their water rights.
California Indian allottees and tribes must navigate an especially complex landscape when it comes to their water rights. They have federal “reserved” water rights protected under the commonly known Winters rights doctrine. Yet these Winters rights exist alongside the complex hybrid state water law system that combines elements of both the riparian and prior appropriation systems for water allocation and determining landowners’ water rights.
This is Part 1 of a 3-Part overview of Indian Water Rights in California. It covers water rights under state laws generally, as well as, under California’s unique hybrid system. Part 2 and part 3 will discuss the federal Winters doctrine and opportunities for tribes to engage with regional stakeholders via California’s Integrated Regional Water Management (IRWM) projects.
State Laws East and West of the Mississippi River
State water law across the United States generally fits into one of two categories, either “riparian” or “appropriative” (aka “prior appropriation”) systems. California blends the two with a hybrid system. While the water itself is a “public good” (coming from Roman Empire law), the right associated with water is usufructuary, which is a fancy way to say a right to use.
East of the Mississippi River, where water is more plentiful, water rights are generally established under riparian systems. These Riparian systems rely on the connection between surface water and the land that borders or surrounds that surface water, with all adjacent landowners having a riparian water right to reasonably use the water. . In riparian states landowners may additionally withdraw groundwater from underlying aquifers, however, the laws regarding what those landowners may do with pumped groundwater vary from state to state (e.g. in Arkansas, landowners may pump without limit, but the water must be put to beneficial use and the right to the appurtenant groundwater cannot be sold separately from the land). Riparian water rights are not generally quantified, but rather everyone with a riparian interest in the water (i.e., persons whose land touches water) has the right to reasonably use the water for a beneficial purpose. In times of shortage, the riparian interest holders must share equally in the shortage. If a person or tribe obtains land with riparian water rights, they step into the shoes of the prior landowner and interest holder. They will have an equal interest that is not junior to the interests of riparian owners who owned their land first. Riparian rights do not depend on historical or continued use of the water.
West of the Mississippi, where it is generally much dryer, states use the system of “prior appropriation” to determine landowners’ water rights. The connection to or proximity of the land to surface water does not matter and water rights can be sold independently from the land. A catchphrase for “prior appropriation” systems is, “first in time, first in right.” Prior appropriation systems aim to reward and incentivize the investment of energy and effort it often takes to move water from where it is to where it is needed, such as for agriculture or mining. It comes out of the same 19th-century capitalism that incentivized European settlers to move westward in search of property and profit, usually by dispossessing and waging violence on native peoples. In contrast to riparian systems, senior interest holders generally take their full share before junior interest holders take anything when water is in short supply (‘first in time, first in right’) and when this happens it is known as “curtailment”. Under appropriative systems, one’s right to water may be lost through non-use (“use it or lose it”).
California’s Hybrid System
California developed a hybrid system that incorporates elements of both the riparian systems and appropriative systems in the late 19th century. The historical development of this hybrid system resulted from the California Supreme Court seeking to address a conflict between miners (appropriators) and people who possessed land dating back to before California statehood that acquired their land title from Mexican Land Grants (riparians). As is often the case, California Indians were usually excluded from consideration and suffered as a result. For example, the Nüümü people (Paiute-Shoshone) of Payahuunadu (the “land of flowing water”, what is today known as the Owens Valley in eastern California) built and maintained complex networks of irrigation ditches for agricultural purposes, which under California’s appropriative system should bestow on them the most senior water rights (‘first in time, first in right’). However, these appropriative rights are not currently recognized, in part because forced relocation and violence perpetuated by the U.S. Army, miners, and settlers disrupted the Nüümü’s continuous and beneficial use of the historically diverted water in the irrigation ditches.
By the late 19th century, California Courts had recognized both riparian rights, drawing upon English common law, and appropriative rights. The Court resolved the above-described dispute by establishing a hybrid system in which riparian rights are senior to appropriative rights in times of shortage, and later appropriators are subordinate to prior appropriators. Thus, riparian rights were upheld while also recognizing appropriative rights.
Though largely outside the scope of this introductory post, California’s complex water system becomes even more complicated when we move from the system determining water rights to regulating the water rights of individuals. Different regulatory structures and administrative agencies oversee the use of surface water and groundwater, and the latter is regulated under the relatively new Sustainable Groundwater Management Act (SGMA).
In our next installment, we will cover federal reserved water rights (Winters doctrine). In our third and final installment, we will cover certain legally created entry points under California law for (both federally recognized and unrecognized) tribes and other stakeholders to obtain funding for water-related projects.
 The right of a landowner in a riparian state to pump groundwater under her land is not a “riparian” water right. Rather, it is a right to groundwater within a state that has a “riparian” system. Landowners in riparian states whose land touches surface water will have both a riparian right to the surface water as well as a non-riparian right to the groundwater.