United States v. Gila Valley Irrigation Dist.
| Decision Date | 13 June 2017 |
| Docket Number | 14-17048,14-17047,14-17185,14-16943,14-16944,Nos. 14-16942,s. 14-16942 |
| Parties | UNITED STATES of America, Plaintiff-Appellant/Cross-Appellee, and Gila River Indian Community; San Carlos Apache Tribe of Arizona, Intervenor-Plaintiffs-Appellants/Cross-Appellees, v. GILA VALLEY IRRIGATION DISTRICT; Franklin Irrigation District ; Freeport Minerals Corporation ; Larry W. Barney; Viri Viva Lunt Revocable Trust; TRP Family Trust; Ronald Howard; Janice Howard ; Myrna Curtis; Joe B. Tatum; Judy L. Tatum; Harrington Ranch and Farm; S&R Daley, LP; Steve Daley; Ross and Fawn Bryce Family Trust; Householder Family Limited Partnership; Kenneth Claridge, Defendants-Appellees/Cross-Appellants. |
| Court | U.S. Court of Appeals — Ninth Circuit |
John L. Smeltzer (argued), Katherine J. Barton, F. Patrick Barry, and Yosef Negose, Attorneys, and John C. Cruden, Assistant Attorney General, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Scott Bergstrom and Andrew Engel, Office of the Solicitor, United States Department of the Interior, Washington, D.C.; for Plaintiff-Appellant/Cross-Appellee United States.
Pratik A. Shah (argued), Merrill C. Godfrey, Hyland Hunt, and Z.W. Julius Chen, Akin Gump Strauss Hauer & Feld LLP, Washington, D.C.; Linus Everling and Thomas L. Murphy, Gila River Indian Community, Pima Maricopa Tribe Law Office, Sacaton, Arizona; for Intervenor-Plaintiff-Appellant/Cross-Appellee Gila River Indian Community.
Joe P. Sparks (argued) and Julia Rowen Kolsrud, The Sparks Law Firm P.C., Scottsdale, Arizona, for Intervenor-Plaintiff-Appellant/Cross-Appellee San Carlos Apache Tribe of Arizona.
Sean T. Hood (argued) and Rhett Billingsley, Fennemore Craig P.C., Phoenix, Arizona, for Defendant-Appellee/Cross-Appellant Freeport Minerals Corporation.
Paul F. Eckstein (argued) Shane R. Swindle, and Vidula U. Patki, Perkins Coie LLP, Phoenix, Arizona; David A. Brown, Brown & Brown, St. Johns, Arizona; for Defendant-Appellee/Cross-Appellant Gila Valley Irrigation District and Franklin Irrigation District.
Robert B. Hoffman, Somach Simmons & Dunn, Sacramento, California; for Defendants-Appellees/Cross-Appellants Larry W. Barney, Viri Viva Lunt Revocable Trust, TRP Family Trust, Ronald Howard, Janice Howard, Myrna Curtis, Joe B. Tatum, Judy L. Tatum, Harrington Ranch And Farm, S&R Daley, LP, Steve Daley, Ross and Fawn Bryce Family Trust, Householder Family Limited Partnership, and Kenneth Claridge.
John B. Weldon, Jr., Mark A. McGinnis, Lisa M. McKnight, and Scott M. Deeny, Salmon Lewis & Weldon P.L.C., Phoenix, Arizona, for Amici Curiae Salt River Valley Water Users' Association and Salt River Project Agricultural Improvement and Power District.
Before: Diarmuid F. O'Scannlain, Ronald M. Gould, and Milan D. Smith, Jr., Circuit Judges.
In these consolidated appeals involving the Globe Equity Decree of 1935, we must decide whether landowners can transfer their rights to divert water from the Gila River which flows through southern Arizona.
These cases arise out of litigation that began over ninety years ago. In 1925, the United States first brought suit on behalf of the Gila River Indian Community ("Community") and the San Carlos Apache Tribe ("Tribe"), seeking to adjudicate the water rights involving the Gila River. In 1935, the district court entered a consent decree, known as the Globe Equity Decree ("Decree"), to govern the distribution of water among the Community, the Tribe, and various other landowners. See United States v. Gila Valley Irrigation Dist. , 31 F.3d 1428, 1430 (9th Cir. 1994)("GVID IV "). The district court has continuing jurisdiction to enforce and to interpret the Decree, which provides for the appointment of a Water Commissioner for such enforcement purposes.
Parties to the Decree are entitled to divert water from the River for the "beneficial use" and "irrigation" of land in accordance with the specified priorities. The Community and the Tribe have the senior-most water rights (the Community's date from time "immemorial" and the Tribe's date from 1846). Covered parcels of land are described in the Decree by reference to the number of acres located in a quarter-quarter section1 of the Public Land Survey System. Parties to the Decree are permitted "to change the point of diversion and the places, means, manner or purpose of the use of the waters to which they are so entitled or any part thereof, so far as they may do so without injury to the rights of other parties."
In 1993, the district court entered an order (the "Change in Use Rule") outlining the procedures for severing water rights from one piece of property and transferring them to another. Parties must file a sever and transfer application with the Water Commissioner, who will publish notice of such application. If there are objections filed by other parties to the Decree, either the applicant or the objectors may request an evidentiary hearing before the district court. "The applicant shall have the burden of establishing a prima facie case of no injury to the rights of other parties under the Gila Decree and a right to transfer."
In 1996, the district court entered a Water Quality Injunction, which provides that if the water quality reaching the Tribe deteriorates below certain thresholds, the Water Commissioner is directed to take measures limiting the diversions of water rights holders in the Safford Valley.
In 2001, the Community, the Tribe, the United States, and the San Carlos Irrigation and Drainage District ("SCIDD") jointly filed a post-judgment complaint ("Pumping Complaint") asking the district court to enforce the Decree against thousands of individual landowners ("Upper Valley Defendants" or "UVDs") who, they claimed, were using wells to pump subflow of the river in excess of their decreed rights. In 2007, the Community, the SCIDD, the United States (as plaintiff, but not the Tribe or the United States in its capacity as trustee for the Tribe), and the UVDs entered into the Upper Valley Forbearance Agreement ("UVFA") by which they agreed to dismiss the Pumping Complaint if the UVDs permanently reduced the number of acres they were entitled to irrigate by 1000 acres.
In addition, the UVFA provided that UVDs could sever and transfer water rights from decreed lands to certain "Hot Lands," which had been irrigated but were not covered by the Decree. If property owners filed such good faith applications within six months of the enforceability date of the UVFA, they could continue to irrigate these Hot Lands while their applications were pending. The plaintiffs agreed not to object to properly filed applications.
Pursuant to the UVFA, a total of 419 sever and transfer applications were filed in 2008. Fifty-nine of these were from Freeport Minerals Corporation ("Freeport"), who had begun acquiring decreed lands in 1997. Freeport purchased farms for the express purpose of obtaining water rights, required its tenants to maintain the water rights, and paid all water-related assessments and fees.
The United States, the Tribe, and the Community ("Plaintiffs") filed objections to the sever and transfer applications.2 After receiving proposals from the interested parties on the best way to manage so many applications, the district court began by adjudicating Freeport's applications first. Accordingly, it created a sub-docket, No. 4:31-cv-00061-SRB, to which it transferred Freeport's fifty-nine applications, while staying the proceedings on other parties' applications. At the district court's invitation, the parties selected ten of Freeport's applications for initial adjudication.3
In its applications, Freeport described its parcels by reference to the quarter-quarter section in which they fell but did not indicate a more specific location for the lands to and from which it was seeking to sever and to transfer water rights. After a ruling by the district court that sever and transfer applications should identify the "precise locations of the parcels within the quarter-quarter section," Freeport hired a consultant to create more detailed maps and legal descriptions of the lands at issue. Freeport disclosed these revised maps and descriptions during discovery in November 2009. The revisions affected the locations and legal descriptions of multiple parcels, though each map revision fell within the same overall quarter-quarter section as its original application.
The district court held an evidentiary hearing (which the parties refer to as a "trial") on Freeport's initial ten applications from February 9–25, 2010 and denied them all on August 3, 2010, granting the Tribe's motion for judgment as a matter of law. The court concluded that (1) Freeport had failed to present a prima facie case of no injury to other Decree parties, (2) Arizona's statutory forfeiture law did not apply, and (3) Freeport had partially abandoned the water rights in one of its proposed sever parcels, and (4) it further declined to amend Freeport's applications to conform to its revised maps.
Freeport attempted to appeal the order, but we declined jurisdiction because it was "neither a partial nor a final judgment." United States v. Sunset Ditch Co. , 472 Fed.Appx. 472, 474 (9th Cir. 2012). We instructed the district court that it needed to "resolve issues related to Freeport's other applications, as well as issues related to other applicants." Id. at 473.
Thereafter, the district court proceeded to adjudicate other sever and transfer applications filed in 2008. Freeport's remaining applications were either denied or withdrawn. Pursuant to the UVFA, Freeport entered into covenants agreeing "to retire certain decreed water rights and to refrain from irrigating" the lands that were the subject of six of the original ten applications first adjudicated by the district court.4 All of the remaining 2008 applications from non-Freeport parties were...
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