Gila River Indian Cmty. v. Cranford

• Decision Date: 12 May 2020
• Docket Number: No. CV-19-00407-TUC-SRB,CV-19-00407-TUC-SRB
• Citation: 459 F.Supp.3d 1246
• Parties: GILA RIVER INDIAN COMMUNITY, Plaintiff, v. Joyce CRANFORD, et al., Defendants.
• Court: U.S. District Court — District of Arizona

459 F.Supp.3d 1246

GILA RIVER INDIAN COMMUNITY, Plaintiff,

v.Joyce CRANFORD, et al., Defendants.

No. CV-19-00407-TUC-SRB

United States District Court, D. Arizona.

Signed May 12, 2020

Donald R. Pongrace, Pro Hac Vice, Jason Travis Hauter, Merrill C. Godfrey, Pro Hac Vice, Akin Gump Strauss Hauer & Feld LLP, Washington, DC, Linus Everling, Thomas L. Murphy, Gila River Indian Community, Sacaton, AZ, for Plaintiff.

Kevin J. Bonner, Lauren James Caster, Mario Carmelo Vasta, Fennemore Craig PC, Phoenix, AZ, for Defendants.

ORDER

Susan R. Bolton, United States District Judge Pending before the Court is Defendants Joyce Cranford, David Schoubroek, Eva Schoubroek, Donna Sexton, Marvin Sexton, and Patrick Sexton (collectively, "Defendants")’ Rule 12(b)(1) Motion to Dismiss for Lack of Jurisdiction or to Abstain ("Motion") (Doc. 14, ("Mot.")).

I. BACKGROUND

Plaintiff Gila River Indian Community ("GRIC") is a sovereign Indian nation organized and federally recognized pursuant to § 16 of the Indian Reorganization Act of June 18, 1934. (Doc. 1, Compl. ¶ 7); 25 U.S.C. § 5123. GRIC is composed of members of the Pima and Maricopa Indian Tribes, historically known as the Akimel O'otham and Pee-Posh. (Compl. ¶ 7.)

The ancestral homeland of the Akimel O'otham and Pee-Posh came under United States sovereignty through the Treaty of Guadalupe Hidalgo in 1848 and the Gadsden Purchase of 1853. Gila River Pima-Maricopa Indian Cmty. v. United States , 494 F.2d 1386, 1388 (Ct. Cl. 1974). In 1859, Congress withdrew this land from the public domain to establish what is now known as the Gila River Reservation. Id. From 1876 to 1915, seven Executive Orders¹ enlarged the Reservation to its current size of over 370,000 acres. Id. The United States continues to hold this land in trust for GRIC. Gila River Indian Cmty. v. Henningson, Durham & Richardson , 626 F.2d 708, 709 (9th Cir. 1980). Bisecting this land is the Gila River.

The Gila River originates in New Mexico and flows westward across Arizona through semi-arid and desert lands. In re the Gen. Adjudication of All Rights to Use Water in the Gila River Sys. & Source , 212 Ariz. 64, 127 P.3d 882, 885 n.1 (2006) (" Gen. Adj. 2006 "). The Gila River and its tributaries, including the Salt, Verde, Agua Fria, Santa Cruz, and San Pedro Rivers, drain most of central and southern Arizona. Joseph M. Feller, The Adjudication That Ate Arizona Water Law , 49 Ariz. L. Rev. 405, 406 (2007). The Reservation is located near the confluence of the Gila and Salt Rivers, downstream of non-tribal landowners who settled along the Gila River after the Reservation's establishment. See Gen. Adj. 2006 , 127 P.3d at 885 ; Feller, The Adjudication That Ate Arizona Water Law , 49 Ariz. L. Rev. at 414.

Throughout the early 1900s, increasing diversions of Gila River water by upstream landowners sharply decreased the amount of water available to those downstream. Feller, The Adjudication That Ate Arizona Water Law , 49 Ariz. L. Rev. at 414. In response, the federal government planned to dam the Gila River and construct a reservoir to store floodwaters for distribution during dry times (the "San Carlos Project"). Gen. Adj. 2006 , 127 P.3d at 885 ; Feller, The Adjudication That Ate Arizona Water Law , 49 Ariz. L. Rev. at 414. Distribution required certainty as to who was entitled to what amounts of water. See Feller, The Adjudication That Ate Arizona Water Law , 49 Ariz. L. Rev. at 414.

The United States sought this certainty through the courts.

Gen. Adj. 2006 , 127 P.3d at 885 ; San Carlos Apache Tribe v. United States , 639 F.3d 1346, 1348 (Fed. Cir. 2011). In 1925, the United States brought suit in this Court on behalf of itself, GRIC, the San Carlos Apache Tribe, and other landowners, naming as defendants numerous individuals, irrigation districts, canal companies, and corporations, and seeking a comprehensive determination of rights to the waters of the Gila River ("Globe Equity Litigation"). Gen. Adj. 2006 , 127 P.3d at 885.

Over the next ten years, the Court dismissed without prejudice all defendants with claims exclusively to waters of Gila River tributaries. Id . In 1935, the remaining parties stipulated to entry of the Globe Equity Decree (the "Decree"), a consent decree identifying and quantifying parties’ claims and rights to waters of the Gila River mainstem² by listing priority dates, entitlement amounts, and associated lands. See United States v. Gila Valley Irrigation Dist. , Globe Equity No. 59 (D. Ariz. June 29, 1935) ("Globe Equity No. 59 "); Decree. The Decree, which continues to govern the use of Gila River water from its source in New Mexico to its confluence with the Salt River, is administered and enforced by a court-appointed water commissioner ("Gila Water Commissioner") authorized to cut off noncompliant water diversions. (See Decree at 112); Feller, The Adjudication That Ate Arizona Water Law , 49 Ariz. L. Rev. at 414. This Court's jurisdiction over the Decree continues to the present day. (See Decree at 113.)

In 1981, the Arizona Supreme Court consolidated several petitions seeking a determination of water rights to various rivers, including the Gila River, into a general stream adjudication in Maricopa County Superior Court (the "Gila Adjudication"). Matter of Rights to Use of Gila River , 171 Ariz. 230, 830 P.2d 442, 445 (1992) ; see Gen. Adj. 2006 , 127 P.3d at 886 n.3 (listing cases describing history of Gila River general stream adjudication). The stated purpose of the Gila Adjudication is to "determine all rights to the use of water obtained from the Gila River Basin System in the State of Arizona." (Doc. 14-2, Ex. B, Maricopa Super. Ct. 5/29/2086 Pre-Trial Order at 1.) Gila Adjudication orders are enforceable by the director of the Arizona Department of Water Resources ("ADWR"), in whom Arizona law vests "general control and supervision of surface water." United States v. Verde Ditch Co. , No. 1 CA-CV 15-0690, 2017 WL 1364860, at *4 (Ariz. Ct. App. Apr. 13, 2017) ; A.R.S. § 45-103(B). Excluded from the ADWR director's authority is power over the "distribution of water reserved to special officers appointed by courts under existing judgments or decrees." A.R.S. § 45-103(B).

Defendants are individuals who own land near the Gila River upstream of the Reservation. (Compl. ¶¶ 26, 34, 45–46.) GRIC alleges that since at least 2016, Defendants have irrigated their lands with well water consisting in whole or in part of waters of the Gila River. (Id. ¶¶ 23, 24.) Because Defendants’ lands were not cultivated at the time of the Globe Equity Litigation, neither Defendants nor their predecessors-in-interest are parties to the Decree. (Id. ¶¶ 1, 28, 36, 49; Doc. 15, Resp. in Opp'n to Mot. ("Resp.") at 6; Doc. 15-2, Ex. B, 1935 Aerial Image; Decree.) Consequently, Defendants’ lands lack Decree rights. (Compl. ¶¶ 1, 28, 36, 49; Mot. at 2.)

On August 14, 2019, GRIC filed a Complaint in this Court alleging that Defendants are unlawfully pumping Gila River water in derogation of its rights. (Compl. ¶¶ 1–6.) GRIC requests that the Court: (1) declare that Defendants are irrigating their lands with waters of the Gila River without associated Decree rights; (2) declare specifically which of Defendants’ wells are pumping Gila River water; (3) order that the Gila Water Commissioner cut off and seal Defendants’ wells; and (4) enjoin Defendants from diverting Gila River water to irrigate their lands. (Id. at 10–11.)

On September 26, 2019, Defendants filed their Motion, arguing that (1) the Court lacks jurisdiction to hear GRIC's claims, and (2) in the alternative, the Court must abstain in deference to the ongoing Gila Adjudication. (Mot. at 1.) On October 28, 2019, GRIC filed its Response, arguing that (1) the Decree confers exclusive jurisdiction over the waters of the Gila River mainstem, (2) the Gila Adjudication court lacks authority to issue an order inconsistent with the Decree, and (3) abstention is neither permitted nor warranted. (Resp. at 1, 5–15.) Because neither party's filings addressed 28 U.S.C. § 1362, the Court ordered additional briefing on the scope of jurisdiction it confers. (Doc. 17, 3/18/20 Order.) On April 3, 2020, parties filed supplemental briefs presenting arguments based on § 1362. (See Doc. 21, Supp. Br. of GRIC in Opp'n to Mot. ("GRIC Supp."); Doc. 20, Defs.’ Supp. Br. Pursuant to 3/18/20 Order ("Defs.’ Supp.").) This Order responds to all arguments.

II. LEGAL STANDARD

Federal courts must dismiss claims over which they lack subject-matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). "A Rule 12(b)(1) jurisdictional attack may be facial or factual." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004). A facial attack "asserts that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id. A factual attack "contests the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings." Leite v. Crane Co. , 749 F.3d 1117, 1121 (9th Cir. 2014) (citing Safe Air for Everyone , 373 F.3d at 1039 ). In either instance, the party asserting jurisdiction bears the burden of proof. Industrial Tectonics, Inc. v. Aero Alloy , 912 F.2d 1090, 1092 (9th Cir. 1990). Where abstention is requested, the party opposing jurisdiction bears the burden of proof. Lao v. Wickes Furniture Co. , 455 F. Supp. 2d 1045, 1057 (C.D. Cal. 2006).

Defendants’ Motion presents a facial attack on the Court's jurisdiction. Although Defendants contest the factual accuracy of GRIC's allegation that Defendants are impermissibly pumping Gila River subflow,³ their jurisdictional challenge is not based on this alleged inaccuracy. (See Mot. at 3.) Defendants maintain that even if they are pumping subflow, the Court lacks jurisdiction to determine whether this pumping is lawful. Such an argument attacks the sufficiency of the allegations in the complaint, not the truth of the factual allegations. The Court thus accepts GRIC's allegations as true,...