CENTRAL ARIZONA IRR. AND DRAINAGE DIST. v. Lujan

• Decision Date: 23 April 1991
• Docket Number: No. CIV 89-1547 PHX PGR.,CIV 89-1547 PHX PGR.
• Citation: 764 F. Supp. 582
• Court: U.S. District Court — District of Arizona
• Parties: CENTRAL ARIZONA IRRIGATION AND DRAINAGE DISTRICT, Maricopa-Stanfield Irrigation & Drainage District and New Magma Irrigation and Drainage District, Plaintiffs, v. Manuel LUJAN and Central Arizona Water Conservation District, et al., Defendants.

764 F. Supp. 582

CENTRAL ARIZONA IRRIGATION AND DRAINAGE DISTRICT, Maricopa-Stanfield Irrigation & Drainage District and New Magma Irrigation and Drainage District, Plaintiffs, v. Manuel LUJAN and Central Arizona Water Conservation District, et al., Defendants.

No. CIV 89-1547 PHX PGR.

United States District Court, D. Arizona.

April 23, 1991.

COPYRIGHT MATERIAL OMITTED

William D. Baker, Robert S. Porter, Teresa H. Foster, Ellis, Baker & Porter, P.C., Phoenix, Ariz., for plaintiffs, Central Arizona Irr. and Drainage Dist., Maricopa-Stanfield Irr. and Drainage Dist. and New Magma Irr. and Drainage Dist.

Linda A. Akers, U.S. Atty., D. Ariz., Michael A. Johns, Asst. U.S. Atty., William H. Swan, U.S. Dept. of Interior, Office of Field Solicitor, Phoenix, Ariz., for defendant, Manuel Lujan, Secretary of the Interior.

Douglas K. Miller, Gen. Counsel, Suzanne K. Ticknor, Staff Atty., Central Arizona Water Conservation Dist., Ralph E. Hunsaker, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., for defendant, Central Arizona Water Conservation Dist.

Marvin Cohen & Scot Stirling Sacks, Tierney, Kasen & Kerrick, P.A., Phoenix, Ariz., for City of Tucson.

Roderick McDougall, City Atty., Jesse Sears, Asst. Chief Counsel, Phoenix, Ariz., for City of Phoenix.

Barbara Goldberg, Asst. City Atty., Scottsdale, Ariz., for City of Scottsdale.

Julie Lemmon, Larry J. Richmond, Ltd., Phoenix, Ariz., for Maricopa County (Recreation & Parks).

Carol Lewin, Asst. Atty. Gen., Phoenix, Ariz., for State of Arizona (Game & Fish Com'n).

Shiela Schmidt, APS Law Dept., Robert Hoffman, Snell & Wilmer, Phoenix, Ariz., for Arizona Public Service Co.

Donald Daughton, Kathleen Ferris, Bryan, Cave, McPheeters & McRoberts, Phoenix, Ariz., for Arizona Mun. Water Users Ass'n.

M. Bryon Lewis, John Weldon Jr., Joseph Drazek, Jennings, Strouss & Salmon, Phoenix, Ariz., for Salt River Project Agr. Improvement & Power Dist. and Salt River Valley Water Users' Ass'n.

MEMORANDUM AND ORDER

ROSENBLATT, District Judge.

Pending before the Court are Motions for Summary Judgment addressing all five Counts of Plaintiffs' Complaint. Having considered the entire record and the oral arguments of counsel, the Court concludes that Defendants are entitled to Summary Judgment as to Counts I, II, III, IV, and V.

Background

On December 15, 1972, the United States entered into a combined water service and repayment contract with Central Arizona Water Conservation District (CAWCD) entitled "Contract Between the United States and the Central Arizona Water Conservation District for Delivery of Water and Repayment of Costs of the Central Arizona Project CAP" (Master Repayment Contract). CAWCD agreed to repay the costs of CAP that were properly allocable to CAWCD, not to exceed $1.2 billion. The Master Repayment Contract provided for a future amendment of the contract if it was determined that the $1.2 billion repayment ceiling was not adequate to complete the project.

On March 24, 1983, Secretary of the Interior James Watt's decision regarding the allocation of CAP water was published in the Federal Register. On November 21, 1983, each of the irrigation districts entered into Agricultural Water Subcontracts with the United States and the CAWCD. The Plaintiffs in this lawsuit are collectively scheduled to receive 43% of the CAP non-Indian agricultural water supply. Currently the Plaintiffs are receiving water under interim contracts until the Project is completed.

The Secretary of the Interior proposed an amendment to the Master Repayment Contract to provide for an increase in the repayment ceiling of the Project. Another aspect of the amendment process was that the Secretary added a provision which allowed municipal and industrial (M & I) users to recharge a portion of their entitlements, consistent with Arizona law. Article 8.8(b)(vi) of the Amended Master Contract states:

Likewise, subcontracts for furnishing water for M & I purposes, including, but not limited to, ground recharge to the extent ground water recharge is consistent with Arizona law, shall provide that, if water delivered thereunder is not presently required for such purposes, such water may be made available by the Secretary to other users.

A recharge provision was already present in the M & I users' subcontracts, and the addition in the Amended Master Contract was an effort to make the Master Contract consistent with the users' subcontracts. Article 4.12(a) of the M & I subcontracts states:

Commencing with the Year following that in which the Secretary issues the Notice of Completion of the Water Supply System, the Subcontractor is entitled to take a maximum of subcontractor's allocation acre-feet of Project Water for M & I uses including but not limited to ground water recharge (emphasis added).

Article 4.3(b), found in both the M & I and the agricultural users' subcontracts, conflicts with the M & I provision previously cited. It states:

The system or systems through which water for Agricultural, M & I, and Miscellaneous (including ground water recharge) purposes is conveyed after delivery to the Subcontractor shall consist of pipelines, canals, distribution systems, or other conduits provided and maintained with linings adequate in the Contracting Officer's judgment to prevent excessive conveyance losses (emphasis added).

In context, this provision relates to the distribution systems and adequate linings for those systems, not to defining the purposes of the CAP. The Secretary in the Amended Master Contract attempted to clarify the intent of these provisions by including recharge as a valid M & I use.

The Amended Master Contract was executed on December 1, 1988 between the Assistant Secretary of the Interior and the CAWCD. By its terms, the Amended Master Contract will not become effective until validated in Arizona Superior Court.

In this case, Plaintiffs have challenged the addition of the recharge provisions in the Amended Master Contract; the challenge has been both substantive and procedural. Plaintiffs have challenged the authority of the Secretary to include the recharge provision in the Amended Master Contract, and they have challenged the process by which the recharge provision was added. Furthermore, they have challenged the Secretary's allocation decision which gives electric, mining and recreation uses a priority over agricultural uses.

COUNT I

In Count I of the Complaint, Plaintiffs alleged that ground water recharge is improperly included as an M & I use in the Amended Master Contract. The Court has concluded that Plaintiffs lack standing to assert this claim because they have suffered no legally cognizable injury.

Standing Requirements

The United States Supreme Court requires that a litigant must have standing to assert a claim because federal courts can only hear "cases" and "controversies." Valley Forge College v. Americans United for the Separation of Church and State, 454 U.S. 464, 471, 102 S.Ct. 752, 757, 70 L.Ed.2d 700 (1982). In Valley Forge, the Supreme Court enunciated a test for standing: "At an irreducible minimum, Art. III requires the party who invokes the court's authority to `show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,' and that the injury `fairly can be traced to the challenged action' and `is likely to be redressed by a favorable decision.'" Id. at 472, 102 S.Ct. at 758 (cites omitted). Therefore, the Constitutional requirements for standing are:

1) party must show actual or threatened injury,

2) injury must be traceable to the challenged action, and

3) injury must be likely to be redressed by a favorable decision.

Furthermore, the Court, in Valley Forge, addressed three prudential limitations on standing. Id. at 474-475, 102 S.Ct. at 759-760. First, the plaintiff must assert his own legal rights. Id. Second, the Court refrains from adjudicating "abstract questions of wide public significance" which are only "generalized grievances" and would be better suited for the representative branches of government. Id. Third, plaintiff's complaint must fall within the "zone of interests to be protected or regulated by the statute or constitutional guarantee in question." Id. citing Association of Data Processing Service Orgs. v. Camp, 397 U.S. 150, 153, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970).

Plaintiffs' Alleged Injuries

In their Complaint, Plaintiffs have alleged that as a result of the addition of the recharge provision into the Amended Master Contract, they have suffered "substantial and irreparable harm." The harm that they alleged is as follows: (1) impaired ability to make repayments to the United States under their 9(d) Contracts because the water which is available for the irrigation districts to sell has been reduced as a result of recharge, (2) recharge as an M & I use is given a priority ahead of agricultural use, and (3) deprivation of ability to adequately plan for the use of their water because of the uncertainty as to how much water will be available for their use if recharge is allowed.

An examination of each of the harms cited by Plaintiffs indicates that their alleged injury does not rise to the level of the actual and concrete injury required for standing purposes.

The first harm cited by Plaintiffs, the impaired ability to repay obligations, does not result from the addition of the recharge provision into the Amended Master Contract. Plaintiffs entered "9(d) Contracts" on November 21, 1983, whereby they received a loan to construct their water distribution systems. Plaintiffs also incurred general obligation bonds to help pay their costs. Plaintiffs' combined repayment obligation is anticipated to total $281,867,578.00. These loans were given based on Feasibility Reports which were compiled using a 1981 Water Supply Study. Plaintiffs are now claiming that, with the recharge provision, they are not getting the...