Activists stage coal-train blockade

A handful of activists, many from Deep Green Resistance, stopped a massive coal train for 12 hours. Imagine what we could do with a bit more support and participation. Please check the story for a link to how you can contribute to this campaign.


On Saturday August 27th, activists for ecological defense blocked a northbound BNSF coal train for twelve hours at the Chuckanut Bay railroad bridge south of Bellingham, Wash. in an effort to directly halt the transportation of coal on-route for shipment overseas.

Activists block coal train


Protect Prairie dogs! Join us Monday, March 21st, and Help Kill House Bill 16-1010

By Wildlands Defense
In Colorado, a house bill has been introduced to the State, Veterans, and Military Affairs Committee entitled “A bill for an act concerning the authorization process for the release of destructive rodent pests into a county.” If passed, this bill will make it increasingly difficult to save prairie dogs and the land and wildlife they maintain. The purpose of this bill is to make relocations more difficult than they already are since more people are showing concern and love for this keystone species which is making developers and ranchers nervous. This bill will require the approval of county commissioners and at least two additional entities prior to ANY proposed relocation throughout the state within counties. These restrictions are already required between counties and have effectively limited the conservation of wildlife communities since commissioners rarely approve prairie dog relocations.


It is important to understand that adding further restrictions to the preservation of wildlife will push a myriad of species towards extinction, especially during this time when land and living communities are being destroyed at alarming rates as a result of rampant development. This bill is an insult to wildlife in Colorado. Currently, it is already extremely difficult to relocate prairie dogs and only 18 relocations have occurred throughout the entire state of Colorado since 2012 which saved approximately 2800 prairie dogs. Contrast this number with the hundreds of thousands that have been poisoned within that same time period. Presently, when trying to save these fragmented colonies, advocates have to go through permitting with Colorado Parks and Wildlife, which takes at least 30 days, and they also have to find land to move prairie dogs to which can take up to several years since government agencies very rarely agree to preserve prairies on public lands. Development and ranching are always given priority over wildlife preservation.

Join Us on Monday, March 21st, at the Denver Capitol at 1:30pm and Help Us Oppose This Bill!

WildLands Defense has been working with a group of third graders at the Downtown Denver Expeditionary School and they have decided to come to this meeting and speak for the prairie dogs! These intuitive students are appalled to hear that our legislators want to extinguish this keystone species from the prairies and are determined to stand up against this bill and voice their opposition. This third grade class has watched our political process at work during the last 2 months as legislators have postponed this hearing two different times. The first time was on February 8th, when they were notified 2 hours prior to the hearing. These students were all dressed up and ready to speak and were very disappointed to find out that all their preparation was thwarted by Kevin Priola, the individual that introduced the bill, because he missed his plane after watching the Superbowl in California. These students are learning a sad lesson that our legislators are more determined to silence their strong voices than listen to their concerns. We believe these postponements are happening to decrease the opposition, but let’s prove them wrong and show up in numbers!


WildLands Defense is asking all of our supporters in Colorado to come join these third grade allies and march with them to the capitol on Monday. We will be meeting outside their school building, located at 1860 Lincoln Street around noon, and we will begin the march at 12:30. Please help support these young activists in taking the first strong step to insist that prairie dogs and wildlife are a part of their future.

Once we get to this meeting, we hope that many of you will be willing to speak and ask the committee to vote against this bill. We will be given 3 minutes each to voice our concerns. This bill, so far, is going to be heard after another bill regarding oil and gas, so plan on spending the afternoon with us. We need to show up by 1:30 in case they switch the order.

This session will start at 1:30, Monday March 21st, at the capitol, 200 E. Colfax Avenue, in the legislative building. Your voice can help us stop the destruction of this keystone species on the prairies.
Thank you for your ongoing support of WildLands and Wildlife.


For the Prairies!

Natalie Ertz, Executive Director
Brian Ertz, Board President
Katie Fite, Board Secretary
Deanna Meyer, Board Director
Linda Van Nostrand, Board Director
Dave Hayes, Board Director

Prevent Naropa University from Killing Prairie Dogs

Deep Green Resistance fights for life and justice wherever we find they are threatened. Right now, Buddhist school Naropa University is planning to exterminate a colony.


Petitioning Naropa University, Todd Kilburn

Save the Naropa Prairie Dogs and Withdraw the Lethal Application Filed with the City of Boulder

WildLands Defense


Naropa University has filed a lethal application with the City of Boulder that will allow them to exterminate families of approximately 200 prairie dogs on the Nalandia campus.

We insist that Naropa University staff explore other options and withdraw the kill permit filed with the City of Boulder. WildLands Defense is willing to work with Naropa University to secure a release site for the prairie dogs currently thriving on their campus.

We understand that Naropa has tried to find suitable land to relocate the prairie dogs for several years now. However, we will not accept that they filed for a permit to annihilate this beautiful colony. We believe that we can work in partnership with Naropa University to safely and viably relocate these prairie dogs onto Boulder County or City Open Space public land.

Please sign this petition and insist that Naropa withdraw their kill permit so these beautiful prairie dog families can play, jump yip, kiss, love, stretch and continue their amazing existence in Boulder Colorado. A Buddhist University should never contemplate the annihilation of a beautiful keystone species. We are asking Naropa University to work with prairie dog activists and find a solution other than annihilation.

Pleas sign this petition, and get involved as you can to help us save the prairie dogs, and all wildlife.




Fighting for Mauna Kea: How Liberal and Radical Approaches Differ

The American Southwest, like all of North America, is occupied territory. Its resource are in a constant state of extraction and destruction. What would it take to reclaim the land and the life in it? Deep Green Resistance member and activist Will Falk discusses how we might do so, by distinguishing between liberalism and radicalism.

AUGUST 19, 2015
Liberalism’s Game: the Failure of Settler Solidarity in Hawai’i

When I am in Hawai’i, I ask everyone I meet if the United States will ever voluntarily de-occupy the Islands. No one ever says yes. Usually, before I can say anything else, people hurriedly start talking about the lack of a valid treaty or that the American occupation is illegal by their own laws or that the United States will pay for its human rights violations.

I am a haole in Hawai’i, a white settler in the United States. I acknowledge that every square inch of the United States of America exists on stolen native land. Leadership in land based struggles in the United States rests most properly in the hands of indigenous peoples. I will not undermine indigenous leadership, so I direct my thoughts to other settlers.

If no one believes that the United Sates will ever voluntarily de-occupy Hawai’i, why are so many of the movement’s settler supporters so focused on achieving this impossible voluntary withdrawal? Why, for example, do so many settlers spend so much energy supporting a parade in Oahu – a parade that is billed as a march for Hawaiian sovereignty while quietly being a voting drive to encourage participation in the occupying American government? Why do so many settlers hold up expensive court cases relying on American judges who are paid by the American government to make decisions leading to this mythical voluntary de-occupation as the only viable means for de-occupation?

The first answer is privilege. Settlers benefit from the current arrangement of power in Hawai’i. These Islands represent the tourist fantasy to many settlers despite the fact that Hawai’i’s life support systems are inches away from total collapse. The inability of settler support to recognize that Hawaiian de-occupation is our responsibility leads me to conclude that most settlers are not as concerned with Hawaiian liberation as they are concerned with maintaining a feel-good environment that balances settler crises of conscience while never threatening settler access to Hawai’i. Hawai’i does not have time to coax these settlers from their positions of privilege. So, I direct my thoughts to settlers of strong heart who simply suffer from a lack of analysis.

Apart from privilege, the second reason settlers have proven unable to mount a serious solidarity effort with the Hawaiian de-occupation movement is they see no alternative to a liberal mindset. “Wait a minute,” I hear a lot of confused readers saying, “Aren’t liberals good?” No, actually. It’s too late to rely exclusively on liberalism. Hawai’i has been cursed for 122 years of occupation with too much liberalism. Liberalism is the haoles’ game. Liberalism serves the United States of America. Liberalism renders resistance ineffective and must be forsaken if de-occupation is to be achieved.

The alternative is radicalism. An examination of the differences between the liberal and radical world views will demonstrate how radicalism arms settlers seeking to demonstrate true solidarity with a better analysis for forming an effective de-occupation strategy. This is not to say that a mixture of tactics cannot be effective. The Hawaiian de-occupation movement should not remove any tool from the table, but the longer Hawai’i remains occupied the clearer it becomes that decisive action is needed.


Protest against deep space telescope on the sacred summit of Mauna Kea.

Protest against deep space telescope on the sacred summit of Mauna Kea.



Before I begin, I would like to absolve the term “radical” of the bad reputation it has received in popular circles. Too many people confuse the word “radical” with the word “extreme.” But, as the great African-American activist Angela Davis has explained and as every major dictionary will tell you, the word radical simply means “getting to the root” and is most properly applied to political analyses that seek the origins of oppression.

The brilliant writer and activist Lierre Keith has pointed out two fundamental differences between liberals and radicals. The first difference revolves around individualism. Liberals believe that the basic social unit is the individual, while radicals believe the basic social unit is group or class. This reliance on individualism allows liberals to claim that every individual is entitled to their personal identity free from the realities accompanying social class. In fact, for many liberals, it is an insult to be identified with a certain group regardless of political reality.

For radicals, on the other hand, each individual is socially constructed by political reality. Radicals embrace their social group recognizing it as a source of strength. The first step to affecting change is making common cause with those who share your condition.

The other big difference between liberals and radicals is a disagreement on the nature of social reality. Liberals subscribe to a certain idealism while radicals root their analysis in materialism. For liberals, thoughts, mental states, and attitudes are the only sources and, therefore, solutions for oppression. Liberals locate reality in the human mind and tend to think that education is always the key to social change. For liberals, evil is a misunderstanding and if oppressors can just be shown the error of their ways, they will change.

How does this play out in Hawai’i? Take the role of white supremacism in the domination of Hawai’i, for example. Liberals, long ago, succumbed to the lie that racism and white supremacism are merely emotional states held in the hearts of individuals. They confine the definition of racism to hatred based on the color of one’s skin and confine the definition of white supremacism to hatred for everyone who is not white.

It is astronomers relying on a liberal definition of racism who can claim they are not racist because they hold no hatred in their hearts for the Hawaiian people while still insisting on destroying Mauna Kea’s summit to build telescopes. It is mining executives relying on a liberal definition of white supremacism who can claim no hatred in their hearts for native peoples while insisting that the guts be ripped from native land and poisons pumped into native waters to provide iron ore for the telescopes that destroy native peoples’ sacred sites.

Radicals see tangible systems of power maintained through force and working in the real, physical world as the sources and solutions of oppression. Education is an important first step to building radical consciousness, but they see organized political resistance and force as the means by which real change is achieved. Evil is not a misunderstanding. It is intentional and gives material benefits to oppressors. Oppression is always linked to resource extraction.

An emotional state – like hatred – might contribute to white supremacism, but radicals are less concerned with changing the hearts and minds of those murdering people of color and murdering the world, and more concerned with stopping the destruction. Hawaiian radicals, like Haunani-Kay Trask, for example, see racism as, “A historically created system of power in which one racial/ethnic group dominates another racial/ethnic group for the benefit of the dominating group.” White supremacism is the latest version of this system of power with white people dominating everyone else.

Racism and white supremacism establish, “Economic and cultural domination as well as political power…in the systemic dominance of the exploiting group.” Finally, radicals recognize, as Trask pointed out, that the dominating group holds a monopoly on the means on violence. It is this violence that must be confronted and dismantled if racism and white supremacism are ever truly going to be undermined.

To take this even further, consider what would happen if the liberal analysis was carried out to it’s logical conclusion. Imagine that liberals were actually successful at convincing those in power to treat every one in the world with love and kindness. Without a corresponding change in material reality, there would still be a huge problem. The dominant culture is built on the exploitation of natural resources. Resources are becoming scarcer and scarcer. Humans need to eat, for example, but topsoil is so depleted that major crops are all supported by oil. What will happen, despite the liberal conversion to loving kindness, when the dominant culture needs oil and indigenous peoples and others refuse to give up their lands to give them that oil?


A primary strength of the radical analysis is its ability to articulate the role power plays in oppression. Gene Sharp, the world’s foremost authority on civil disobedience and direct action tactics, has identified two manifestations of power – social and political. Social power, for Sharp, is “the totality of all influences and pressures which can be used and applied to groups of people, either to attempt to control the behavior of others directly or indirectly.” Political power is “the total authority, influence, pressure, and coercion which may be applied to achieve or prevent the implementation of the wishes of the power-holder.”

The powerful do everything they can to convince the oppressed that the current arrangement of power is inevitable. To believe power is inevitable is a mistake. Sharp says, “Power, in reality, is fragile, always dependent for its strength and existence upon a replenishment of its sources by the cooperation of a multitude of institutions and people – cooperation which may or may not continue.” The key to Hawaiian de-occupation, then, is dismantling American power. Power is dismantled most effectively by cutting it off at its sources.

Sharp lists six sources of power: authority, human resources, skills and knowledge, intangible factors, material resources, and sanctions. Jacques Maritain defines authority as “the right to command and direct, to be heard or obeyed by others” and Sharp notes that it is enough that those in power be perceived and accepted as superior. Human resources are simply defined as the number of people who obey those in power and will do their bidding. Those in power derive power from the skills, knowledge, and abilities of those who will do their bidding. Closely tied to skills and knowledge, intangible psychological and ideological factors like cultural history and spirituality can be leveraged by those in power to dominate others. Those in power need material resources like property, money, and sources of energy to maintain their power. Finally, those in power must have means to enforce obedience – punishment, in other words, for those who dissent.

The goal of any resistance movement aspiring to true success must engage in shrewd target selection to undermine these sources of power. Taking Sharp a step further, it is possible to prioritize which sources of power are more essential to the functioning of power than others. The most important sources of power are the material resources power depends upon and the brutality of the sanctions they can enact through their commitment to the exploitation of resources. All the other sources of power ultimately depend on the ability of those in power to enforce their power physically. This is a radical conclusion and can be easily demonstrated.

Consider the Overthrow. Did Queen Liliuokalani abdicate the throne because she believed in American authority or the inherent right of Americans to command Hawaiians? Did the Americans command more people to do their bidding in Hawai’i than the Queen? Was Queen Liliuokalani victim to some psychological failing that the Americans exploited?

The answer is obviously no. At the time, Kingdom of Hawai’i supporters outnumbered the Americans over 13 to 1 on the Islands and constituted 4/5 of the legally qualified voters in Hawai’i. Queen Liliuokalani abdicated the throne in order to avoid bloodshed and, according to her June 17, 1897 letter to President William McKinley, because she, “recognized the futility of a conflict with so formidable a power.”

Queen Liliuokalani abdicated the throne because there were 200 United States marines, holding rifles, standing outside her door. Again, it wasn’t the moral superiority of Americans that convinced the Queen. It was, quite clearly, the threat of violence. It is important to understand the physical processes that allowed the Americans to exert that kind of power in Hawai’i. Another way to understand this is to ask, How did a nation existing thousands of miles away on another continent succeed in pointing 200 rifles at Queen Liliuokalani? The answer is, superior material resources.

In order to occupy Hawai’i, Europeans had to get there first. The only way Europeans ever got to Hawai’i and then transported themselves in numbers great enough to gain power was through the use of large naval ships. In order to build these ships, those in power needed wood and lots of it. The U.S.S. Boston that provided the marines and firepower for the Overthrow was in fact one of the American navy’s first steel warships. In order to produce the steel needed to armor the U.S.S. Boston, iron ore must be harvested. To turn iron ore into steel, vast quantities of coal are needed. To mine sufficient quantities of coal, vast tracts of land housing this coal have to be ripped up. To gain access to these vast tracts of land to be ripped up, the indigenous peoples of that land have to be removed or destroyed.

It is true that the other sources of power support the exploitation of the natural world as we can see in the manufacturing of American naval ships. Coal mining, for example, requires human resources. Most humans will not voluntarily mine coal, so those in power have to employ a mixture of authority, psychological coercion, and pure violence to access the coal they need to exert more power. But, the whole system of violence requires material resources. No one is killed by authority alone. Mountain tops are not ripped off by simple knowledge. Belief systems, by themselves, do not colonize indigenous lands. Material action in the physical world produces power. Bullets, swords, or atomic bombs at various stages of human history kill people. Oil-powered excavators and dynamite blow the tops off mountains. Soldiers delivering blankets infected with small pox clear indigenous peoples off their land.

The good news is that the more destructive those in power become, the more complex their system of murder gets, the more opportunities they expose for dismantling their power. Each step in the manufacturing of the U.S.S Boston, for example, presents an opportunity for resisters to stop the replenishment of power at one of its sources. The method is simple. Restrict those in power access to the resources they require and their power weakens. Cut them completely off, and empire comes crashing down.

The physical processes that produce warships and put rifles and cannons in the hands of American troops in Hawai’i follow a similar pattern. These processes are ultimately what make civilization unsustainable. These processes demonstrate precisely how the civilized have come to dominate the world at the expense of the uncivilized and life on this planet. Again, this present state of the world is not inevitable. It is the result of power built through the exploitation of life on the planet. The problem for life right now is the American empire shows no signs of slowing. The bigger their weapons become the faster life is pushed to the brink of total extinction.

Radicalism, then – because it springs from material reality – gives the Hawaiian de-occupation movement an ecological imperative. European contact has resulted in half of Hawai’i’s endemic species being lost to extinction. How many more species must be lost before actions that truly reflect the seriousness of the situation are taken? The American empire is built on the use of fossil fuels and the American military is the single largest consumer of fossil fuels in the world. Burning fossil fuels must be stopped to avoid climate catastrophe. The American military presence is, perhaps, the most serious physical obstacle confronting the de-occupation movement. Blocking the military’s access to imported fossil fuels, then, could deal a decisive blow both to American power on the Islands and American environmental destruction.


This is the reality of the challenge confronting the Hawaiian de-occupation movement:The United States will never voluntarily leave Hawai’i and the survival of life on the Islands demands de-occupation. Too many settler liberals would have everyone believe that if Hawaiians just ask nicely enough, or cleverly enough, or with irrefutable American logic, the Americans will leave. Too many settler liberals hold up the American political and international legal systems as the only means for de-occupation. Too many settler liberals can be relied upon for sign-holding events, parades, and social media campaigns to achieve de-occupation, but when it comes down to being accomplices to Hawai’ian liberation, we are failing.

Appealing to the American political system hasn’t worked in 122 years. Appealing to the international legal system misunderstands the material reality of power. These liberal tactics can be employed to erode American authority, to persuade humans not to support American power, but there are more decisive routes to undermining American power. It’s not that liberal tactics do not have their place. But, by themselves, they do not undermine power in any serious way.

Time is short in Hawai’i. Settlers wishing to demonstrate true solidarity need to embrace a radical analysis. It is time to get to work seriously dismantling the sources of American power.

Will Falk has been working and living with protesters on Mauna Kea who are attempting to block construction of an 18-story astronomical observatory with an Extremely Large Telescope (ELT).

California Tribes Fight for Water Rights

Industrial civilization has always thrived on the flesh and bones of indigenous peoples. Civilization leaves only whatever scraps of land, water or anything else, needed to indigenous populations to survive, which are too trivial or costly to sweep up.

Deep Green Resistance is therefore encouraged to see several California Tribes fighting back. From Circle of Blue:

California Indian Tribe Pursues Rights to Groundwater

TUESDAY, 28 JULY 2015 05:00

A court test of federal water law by the Agua Caliente Band of Cahuilla Indians has implications for the American West.

THE COACHELLA VALLEY, CALIFORNIA, AUGUST 2009: The main recharge Dyke for the Coachella Valley, California, August 10 2009.  This dyke serves to maintain the Aquifer upon which Coachella depends, adding water to it protects the water source and protects the surrounding infrastructure from possible subsidence. (Photo by Brent Stirton/Reportage by Getty Images.)

THE COACHELLA VALLEY, CALIFORNIA, AUGUST 2009: The main recharge Dyke for the Coachella Valley, California, August 10 2009. This dyke serves to maintain the Aquifer upon which Coachella depends, adding water to it protects the water source and protects the surrounding infrastructure from possible subsidence. (Photo by Brent Stirton/Reportage by Getty Images.)


By Brett Walton
Circle of Blue

As California implements a landmark law to balance demand for groundwater with available supplies, an Indian tribe’s lawsuit in federal court has the potential to add new layers of complexity to managing a prized resource that is in short supply during California’s worst ever drought.

The Agua Caliente Band of Cahuilla Indians filed the suit on May 14, 2013 against the Coachella Valley Water District and the Desert Water Agency, two water suppliers in the tribe’s southern California desert region near Palm Springs. The case, straightforward in its goals, addresses two primary concerns: halting groundwater levels that have declined at an average rate of more than one meter per year since 2000, and stemming pollution in the groundwater beneath the 12,545-hectare (31,000-acre) reservation.

I believe you can’t have groundwater management unless you have tribal participation.”
–Anecita Agustinez, tribal policy advisor
California Department of Water Resources

The Agua Caliente complaint reflects the growing willingness of Indian tribes across the American West to pursue, by court action or negotiated settlements, clear legal recognition of water rights that are held in trust by the U.S. government. The flexing of tribal legal muscle, which occurred first for surface water rights in the 1980s, has now expanded to seeking more authority over the use of groundwater. The result of these actions is that a new era of water management in the West is taking shape, one in which the old brokers — the cities, counties, and irrigation districts — will have to make room for another seat at the table.

Just like the tribal lawsuit, California’s 2014 law to fortify supplies and improve distribution of groundwater was prompted by rapidly diminishing aquifers and inadequate authority by local or state officials to curtail indiscriminate use. The convergence of the new state law and the federal lawsuit, along with helping to clarify who in California has access to and control of groundwater, has other wide-ranging implications. The Agua Caliente case could be a model for tribes in California that seek greater influence in water management decisions. And the tribe’s suit could set a precedent for how groundwater rights for Indian tribes are interpreted nationally.

Some see the case, now in the Ninth Circuit Court of Appeals, eventually reaching the U.S. Supreme Court. “The lawsuit is very significant,” Anecita Agustinez, tribal policy advisor for the California Department of Water Resources, told Circle of Blue, explaining that the case could prompt other tribes in California to file claims to groundwater. “I believe you can’t have groundwater management unless you have tribal participation. They live on significant rivers and watersheds.”

Tribes Pursue Water Rights
California is an important legal testing ground. The state is home to more than 100 federally recognized Indian tribes, from the Karuk reservation near Oregon to the Campo reservation on the Mexican border. The Agua Caliente is perhaps the first in the state to seek official recognition and quantification of its legal rights to groundwater. The tribe, by suing for its rights, wants a greater say in how water is managed in the valley.

“These practices are not acceptable for long-term health and viability of the Coachella Valley water supply,” Tribal Chairman Jeff Grubbe said in a statement in March, referring to the shrinking aquifer and decline in water quality. “We called out this detrimental practice and brought it to the attention of the water districts over and over for years simply to be ignored.”

The Lawsuit
The Agua Caliente lawsuit covers a few exacting points of jurisprudence — legal ownership, for example, of the space between soil particles that could be used for storing water underground. But the lawsuit makes two broad claims about water quantity and quality that could rebalance current management practices in the region and state.

The first claim is that the tribe has a federal reserved right to groundwater from two basins beneath the Coachella Valley. A federal reserved right was established in the seminal 1908 Winters decision in the U.S. Supreme Court, which found that the U.S. government, by establishing a reservation, implicitly set aside enough water for the tribe to make a living from the land. On March 20, 2015, the U.S. District Court of the Central District of California ruled that the Agua Caliente do have a reserved right to groundwater. An appeal of that ruling is being heard by the Ninth Circuit.

The second broad claim is that the valley’s two water agencies — Coachella Valley Water District and Desert Water Agency — are polluting the aquifer with imported Colorado River water, which is saltier than the local sources. The agencies pour Colorado River water, which is delivered by canals, into sandy-bottomed percolation basins throughout the valley to bolster sagging groundwater levels. The agencies acknowledge that the Colorado River supplies are saltier but do not admit that the practice of recharging the aquifer has increased its salinity. The Agua Caliente argue that their groundwater rights entitle them to water without added salts. This claim is being litigated in a second phase of the lawsuit.

A third phase of the lawsuit will consider numbers: How much groundwater do the Agua Caliente own? Do they have a right to water of a certain quality? What should the standard be? Only phase one — the determination that the tribe does indeed have a right to groundwater – has been completed by the district court.

Local and State Implications
The lawsuit makes the Coachella Valley water agencies nervous. The changes that are in store if the Agua Caliente are granted rights to a significant portion of the aquifer could be substantial.

THE COACHELLA VALLEY, CALIFORNIA, AUGUST 2009: Chris Thomas, 44, at work as a Zanjero, (Ditchrider,) regulating waterflow to agriculture in The Coachella Valley, California, August 10 2009.  Zanjero's deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. "You get a feel for it," say Thomas, "its all about keeping everyone happy within the resources available. Zanjeros typically work 365 days a year, there is always someone watching the output on the pumps and gates." Zanjeros typically work ten days on and 4 days off, 16 hours of the day are covered and 8 hours of the day the Zanjeros are on standby. (Photo by Brent Stirton/Reportage by Getty Images.)

THE COACHELLA VALLEY, CALIFORNIA, AUGUST 2009: Chris Thomas, 44, at work as a Zanjero, (Ditchrider,) regulating waterflow to agriculture in The Coachella Valley, California, August 10 2009. Zanjero’s deliver irrigated water to farmers and other users, adjusting flow according to calculations from the Coachella Valley Water District Authority. “You get a feel for it,” say Thomas, “its all about keeping everyone happy within the resources available. Zanjeros typically work 365 days a year, there is always someone watching the output on the pumps and gates.” Zanjeros typically work ten days on and 4 days off, 16 hours of the day are covered and 8 hours of the day the Zanjeros are on standby. (Photo by Brent Stirton/Reportage by Getty Images.)

“There’s a great deal of speculation,” Katie Ruark, spokeswoman for Desert Water Agency, told Circle of Blue. “The tribe hasn’t said what they plan to do with their rights.” Ruark mentioned water rate increases — if the agency was forced to buy back water from the tribe — as one potential effect. Then there is the tribe’s well-documented displeasure with the decline in groundwater levels, which could prompt a reduction in pumping.

Agua Caliente’s spokeswoman Kate Anderson referred Circle of Blue to the tribe’s website and did not respond to follow up questions about the tribe’s role in managing the region’s aquifers and what changes it would like to see.

The lawsuit coincides with a transition in California’s groundwater practices. The state’s groundwater reserves plunged to record lows in the last four years of drought. Little snowmelt or rainfall percolated into the ground while prodigious amounts of water were pumped out to sustain the country’s largest agricultural economy. Thousands of rural wells have gone dry.

Farmers and cities in most of the state were allowed to pump without limits because there was no authority to regulate groundwater. That changed last September when Gov. Jerry Brown signed the Sustainable Groundwater Management Act, which requires the state’s most important groundwater basins to form management agencies by 2017 and align water withdrawals with water availability by 2040.

Anecita Agustinez, the state’s tribal policy advisor for water, said that how the tribes fit into the evolving management picture is still being discussed. Tribes are not allowed to form their own groundwater management agency, but they can participate in a joint effort with cities, farm districts, and other local agencies. She called the integration of tribal authority a “potential hurdle.”

“It’s all very new,” Agustinez said. “We’re working on guidelines now.” She said that the documents that local agencies must fill out when they form a management body asks whether they consulted with tribes.

Integrating tribal claims represent a new demand in the system and could displace existing water uses, not just for California but for all western states, according to Steve Greetham, chief general counsel for the Chickasaw Nation, in Oklahoma. “It’s a challenge when looking at potentially thousands of property owners who have a stake in the outcome,” he told Circle of Blue.

In Arizona, which has settled more Indian water claims than any other state, the tribes have emerged as co-managers and essential partners with the state’s cities and water agencies.

If the Agua Caliente are granted rights to a certain quantity and quality of water, as they seek in the lawsuit, they will force the issue in the Coachella Valley and potentially open a door for other groundwater claims in California.

Indian Groundwater Rights in State and Federal Courts
The U.S. Supreme Court, in Cappaert v. United States, ruled that federal reserved rights extend to groundwater. The case involved reserved rights for a national monument. The U.S. Supreme Court has not considered tribal groundwater rights, but state courts have.
When it divided the waters of the Gila River Basin, the Arizona Supreme Court recognized that tribes have a right to groundwater. The court, however, constrained that right. The justices ruled that the right to groundwater existed only when surface waters were “inadequate” for meeting the purposes of the reservation. The court did not define inadequate.
The Montana Supreme Court argued that a tribe’s federally guaranteed right to water, known since a 1908 U.S. Supreme Court decision as a ‘Winters right’, included a right to groundwater, in Confederated Salish and Kootenai Tribes v. Stults.
U.S. District Court for the Western District of Washington, in United States v. Washington Department of Ecology, that Winters rights applied to the water beneath the Lummi Reservation in northwest Washington.


Federal Implications

How a groundwater right would work in practice in California, where “pump as you please” is the current operating principle, is an unresolved question. Courts elsewhere have faced the same issue and have ruled in favor of tribes. In the last 15 years, the Arizona and Montana Supreme Courts, and a U.S. district court in Washington State determined that Indian tribes do have rights to groundwater based on the reserved rights doctrine. The U.S. district court decision in the Agua Caliente case follows that precedent.

“There’s a trend toward the courts finding that tribes have a right to groundwater,” Ryan Smith, a lawyer at Brownstein, Hyatt, Farber, and Schreck who specializes in Indian law, told Circle of Blue.

The U.S. Supreme Court has not heard a case pertaining to groundwater for tribes. Though it ruled in 1976, in Cappaert v. United States, that groundwater is a reserved right, the nation’s highest court has not set a national standard for applying the reserved right doctrine to groundwater. Without a clear national definition, each state divides its groundwater for tribes in a different way. Arizona, for instance, says that tribes have groundwater rights only when surface water is insufficient for the reservation.

The lack of a standard has “muddied the waters” at the state level, Greetham asserted. “As a tribal advocate, I think that’s terrible,” Greetham told Circle of Blue. “[The states] don’t all apply the doctrine with the same rigor.”

The variability is one reason that the U.S. Supreme Court could take up the Agua Caliente case. Roderick Walston, the attorney representing Desert Water Agency, told Circle of Blue he thinks that the losing side will appeal to the U.S. Supreme Court and there is a good chance the justices will review it. Smith agreed, saying that the court might want to conclusively settle the matter.

Others argue that the precedent set by the lower courts is compelling evidence that a groundwater right does exist and that any U.S. Supreme Court decision would refine the definition of how to apply it.

“I think there is a certain level of optimism on the part of non-tribal actors that the Supreme Court will address Winters rights and more narrowly define them,” Greetham said. “Non-tribal actors are fooling themselves if they think the Supreme Court will issue more restrictive rights.”

The legal right to groundwater, in other words, is likely to be upheld. For California agencies, it is another factor to consider as they follow the long path toward groundwater sustainability.

Author: Brett Walton Brett Walton is a Seattle-based reporter for Circle of Blue. He writes our Federal Water Tap, a weekly breakdown of U.S. policy. Interests: Southwest, Pacific Northwest, Pricing, Infrastructure.