U.S. v. Gila Valley Irr. Dist.

Citation961 F.2d 1432
Decision Date17 April 1992
Docket NumberNos. 90-16764,90-16811,s. 90-16764
PartiesUNITED STATES of America, Plaintiff-Appellee, v. GILA VALLEY IRRIGATION DISTRICT, et al., Defendants-Appellants. UNITED STATES of America, Plaintiff, v. GILA VALLEY IRRIGATION DISTRICT, et al.; State of Arizona, Defendants-Appellees, v. Gila River Indian Community, Plaintiff-Intervenor-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

L. Anthony Fines, Stompoly & Stroud, Tucson, Ariz., for defendants-appellants-cross-appellees, Gila Valley Irr. Dist.

Robert L. Klarquist, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington, D.C., for plaintiff-appellee, U.S.

Alfred S. Cox, Cox & Cox, Phoenix, Ariz., for plaintiff-intervenor-appellant, Gila River Indian Community.

Appeal from the United States District Court for the District of Arizona.

Before: NOONAN, TROTT and RYMER, Circuit Judges.

RYMER, Circuit Judge:

The United States, the Gila River Indian Community (GRIC), and the San Carlos Apache Tribe brought suit against the Gila Valley Irrigation District (GVID), the state of Arizona, and other defendants, alleging that the various defendants were violating the terms of a 1935 Consent Decree which established the respective rights of the parties to the waters of the Gila River.

After trial, the district court entered judgment in favor of GVID on GRIC's claim that the Water Commissioner is violating the Decree by using the "stored water released" method of computing the amount of Gila River water available for additional apportionments. Judgment was entered in GRIC's favor on GRIC's claim that the Commissioner is violating the Gila Decree when calculating additional water apportionments by failing to make appropriate deductions for "losses for evaporation, seepage or otherwise," incurred while the water is in transit below the Coolidge Dam to the point of diversion at the Ashurst-Hayden Dam. Each appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm the district court's judgment on both counts.

I

By Acts of May 18, 1916, 39 Stat. 130, and June 7, 1924, 43 Stat. 475, Congress authorized the San Carlos Irrigation Project. The 1924 Act specifically authorized the construction of a dam, now known as the Coolidge Dam, on the Gila River. It is located on the San Carlos Indian Reservation and impounds the San Carlos Reservoir.

In 1925, the United States, acting on its own behalf and as trustee and guardian for the Pima and Apache Indians, brought an action in the United States District Court for the District of Arizona, seeking a determination of the relative rights and priorities of Indians and non-Indians to the waters of the Gila River. United States v. Gila Valley Irrigation Dist., Globe Equity No. 59. On June 29, 1935, the parties stipulated to the Gila Consent Decree.

In addition to setting out the rights of the parties to Gila River water, the Decree provided that the district court would appoint a Water Commissioner to carry out and enforce the Decree. Gila Decree Art XII. The Gila Decree also provided for the district court's retaining jurisdiction to review the actions of the Water Commissioner and to enforce the Decree. Gila Decree Arts. XII, XIII.

The current litigation began in 1976, when the United States filed a petition to review the actions of the Water Commissioner. The petition alleged that the upper valley water users were pumping water out of wells in violation of the Gila Decree. 1 The district court ordered the United States to give notice to individual upper valley defendants whose pumping allegedly was violating the Decree.

Thereafter, the action remained dormant until GRIC successfully moved to intervene as a plaintiff. On May 25, 1989, GRIC filed a nine-count Amended Complaint in Intervention as Plaintiff. Pursuant to a stipulation, the first four counts were bifurcated. After a trial on the merits, the district court filed its Findings of Fact and Conclusions of Law concerning these first four counts on April 3, 1990, and on August 14, 1990, entered judgment.

II

We "will not vacate findings of fact unless they are clearly erroneous. As long as findings are plausible in light of the record viewed in its entirety, a reviewing court may not reverse even if convinced it would have reached a different result." Wardley Int'l Bank, Inc. v. Nasipit Bay Vessel, 841 F.2d 259, 261 n. 1 (9th Cir.1988) (citation omitted).

Additionally,

[w]hen the district court's decision is based on an analysis of the contractual language and an application of the principles of contract interpretation, that decision is a matter of law and reviewable de novo. When the inquiry focuses on extrinsic evidence of related facts, however, the trial court's conclusions will not be reversed unless they are clearly erroneous.

Kern Oil & Ref. Co. v. Tenneco Oil Co., 840 F.2d 730, 736 (9th Cir.) (quoting Miller v. Safeco Title Ins. Co., 758 F.2d 364, 367 (9th Cir.1985)), cert. denied, 488 U.S. 948, 109 S.Ct. 378, 102 L.Ed.2d 367 (1988).

Therefore, we will review the district court's interpretation of the Gila Decree de novo, but will defer to its factual findings on extrinsic evidence unless they are clearly erroneous. See id.; see also United States v. ITT Continental Baking Co., 420 U.S. 223, 233-37, 95 S.Ct. 926, 932-35, 43 L.Ed.2d 148 (1975) (consent decree treated as contract when construing its meaning).

III

Article VIII of the Gila Decree provides that on January 1 of each year, the Water Commissioner shall apportion a quantity of water to the upper valleys based on the amount of water available for release from the Coolidge Dam:

[O]n the first day of January of each Calendar year, or as soon thereafter as there is water stored in the San Carlos Reservoir, which is available for release through the gates of the Coolidge Dam for conveyance down the channel of the Gila River and for diversion and use on the lands of the San Carlos Project for the irrigation thereof, then the Water Commissioner ... shall, to the extent and within the limitations hereinafter stated, apportion for the ensuing irrigation year to said defendants from the natural flow of the Gila River an amount of water equal to the above described available storage, and shall permit the diversion of said amount of water from said stream into the canals of said defendants for the irrigation of said upper valleys lands in disregard of the aforesaid prior rights of plaintiff used on lands below said reservoir....

Gila Decree Art. VIII(2).

The upper valley defendants also are entitled to additional apportionments of water based on additional amounts of water that are stored in the San Carlos Reservoir after January 1. Article VIII provides that the additional apportionments made to the upper valleys shall be equal to the amount of "accessions or newly available stored water supply" in the reservoir:

[I]f and when at any time or from time to time in any year, water shall flow into said reservoir after said date of first apportionment and shall be stored there and become added to the available stored water in said reservoir, the said commissioner shall make further and additional apportionments to said defendants of the natural flow of said stream as the same is available at the diversion points of said defendants, which said apportionments shall in turn correspond with and be equivalent in quantity to the amount of such accessions or newly available stored water supply....

Gila Decree Art. VIII(2).

The district court, in 1939, defined "accessions thereto" as "all waters flowing into said reservoir in excess of the amount discharged therefrom at the time of such inflow, allowance being made for loss through evaporation and seepage."

The Water Commissioner uses two different methods for calculating the amounts of the additional apportionments. When using Method 1, the Commissioner determines the amount of "accessions or newly available stored water supply" by measuring the rises in the height of the water in the reservoir. 2 Essentially, the Commissioner determines the height of the water and uses capacity tables to calculate the amount of water stored in the reservoir. He then estimates the period of time the water will remain in the reservoir before all of it is released down-river for use by GRIC and other lower valley parties. The Commissioner next estimates the amount of evaporation which will occur over that period of time. The additional apportionment for that period is calculated as the amount of available stored water (determined by the height of water and capacity tables) minus the estimated evaporation losses for that period.

Method 1 has certain built-in sources of potential inaccuracy. First, the tables used to compute the volume of water in the reservoir are only accurate to the nearest 1,000 acre feet. Second, because the Commissioner is merely estimating both the length of time it will take the lower valley users to deplete all the stored water and the amount of evaporation losses which will occur over that length of time, total accuracy is impossible.

Method 2 is known as the "stored water released" method. Using this method, stored water released is calculated as the excess of the measured amount of water leaving the reservoir on a given day over the measured amount of water entering the reservoir on that same day. Water leaving the reservoir is measured by a gauging station located below the Coolidge Dam, and water entering the reservoir is measured by gauging stations located on two rivers which enter the reservoir. The Commissioner assumes that the excess amount of water released was previously stored in the reservoir, hence the name "stored water released."

When determining apportionments under Method 2, the Commissioner calculates the sum of stored water released for all the days since the prior apportionment, adds the amount of water stored in the reservoir on the...

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