Munger, Tolles & Olson attorney Joshua Patashnik published an article for The Daily Journal on March 10, 2017 about the implications of a ruling in the U.S. Court of Appeals for the Ninth Circuit establishing that the so-called “reserved rights” doctrine applies to groundwater.
Mr. Patashnik describes the court’s ruling in Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, which held for the first time that groundwater rights should be given the same treatment as surface water rights under the Winters doctrine. In Winters v. United States (1908), the U.S. Supreme Court held that when the federal government removes land from the public domain, the government also reserves the surface water rights necessary for the land to serve its intended purpose.
Mr. Patashnik argues that the Agua Caliente ruling will bring clarity and security to Native American tribes who rely on groundwater, but that it leaves several unresolved questions about its practical application that could lead to future litigation.
Mr. Patashnik is an associate in the San Francisco office of Munger Tolles. His practice focuses on appellate and complex civil litigation. Mr. Patashnik is the author of several articles on water law, property and takings, and is a frequent speaker at conferences on these subjects.