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'Winters' Applies to Groundwater?

By Brian Cardile | Mar. 17, 2017

Appellate Practice

Mar. 17, 2017

'Winters' Applies to Groundwater?

Josh Patashnik (Munger, Tolles & Olson) explains the 9th Circuit's significant determination that Winters rights apply to groundwater; Jeffrey Aaron (Office of the Federal Public Defender) describes a narrow evidence rule exception SCOTUS has created allowing impeachment of verdicts influenced by jurors' racial animus.


This week's show examines two recent federal court rulings, one from the 9th Circuit and another out of the U.S. Supreme Court. Both add new contours to long-existing doctrines, one in the context of water rights, the other relating to the impeachability of criminal jury verdicts.
I'll chat first with Josh Patashnik, an associate with Munger, Tolles & Olson, about the case of Aqua Caliente Band of Cahuilla Indians v. Coachella Valley Water District et al, filed last week out of the 9th Circuit.
There, the panel refined a century-old water rights doctrine to account for today's ever-increasing water scarcity in the American west. The unanimous panel determined that the "reserved rights" doctrine, created by the 1908 case Winters v. United States, applies to rights in groundwater. The Winters rule prescribes that when the federal government withdraws land from the public domain (say, for a national park or an Indian reservation), it implicitly reserves water rights necessary to serve the land's intended purpose. Before last week's ruling, though, courts had only specifically acceded to the notion that this Winters rule applied to surface waters like lakes and rivers. But as surface water dwindles on many of these reserved tracts, like the one populated by the Aqua Caliente Band, the question of whether Winters rights apply to underground aquifers has grown increasingly vital.
Mr. Patashnik will describe how the court answered that question in the affirmative, and he'll preview the many difficult questions that now lie ahead as courts try to figure the contours of these groundwater rights.
Then, Jeffrey Aaron, Directing Attorney with the Riverside Office of the Federal Public Defender, will discuss the U.S. Supreme Court's recent ruling in Pena-Rodriguez v. Colorado, filed last week. There, for the first time since its creation in 1975, a federal rule of evidence got a new exception carved into it. The "no-impeachment" rule prescribes that jury verdicts may not be assailed with testimonial evidence after they're rendered; the rule means to protect verdicts' finality, and encourages open discourse during deliberations.
In Pena-Rodriguez's case here, one juror contended during deliberations that a number of virulent racial prejudices provided trustworthy bases on which to find the defendant guilty. When, after learning of those statements from two other jurors, the defense counsel moved for new trial based on the racist juror's contentions, the court denied the motion based on the no-impeachment rule. In a 5-3 ruling, Justice Kennedy reasoned that to maintain public faith in the judicial process, verdicts appreciably influenced by racial animus must be subject to impeachment. Dissenting, Justice Alito saw no reason why verdicts based on racial bias should get any more scrutiny than verdicts based on other improper biases. Mr. Aaron will walk us through Kennedy's reasoning, and explain why Justice Alito's opinion, contrary to the justice's intent, actually might presage exceptions that could be carved from the no-impeachment rule in the future, like exceptions for verdicts based on biases against gender, religion, or sexual orientation.
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Brian Cardile

Daily Journal Staff Writer

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