Gila Valley Irr. Dist. v. United States, 9527.

• Citation: 118 F.2d 507
• Decision Date: 10 March 1941
• Docket Number: No. 9527.,9527.
• Parties: GILA VALLEY IRR. DIST. et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

118 F.2d 507 (1941)

GILA VALLEY IRR. DIST. et al. v. UNITED STATES.

No. 9527.

Circuit Court of Appeals, Ninth Circuit.

March 10, 1941.

Ralph W. Bilby, T. K. Shoenhair, C. T. Knapp, Jas. P. Boyle, B. G. Thompson, and Arthur Henderson, all of Tucson, Ariz., and

Guy Anderson of Safford, Ariz., for appellants.

Norman M. Littell, Asst. Atty. Gen., Frank E. Flynn, U. S. Atty., and H. S. McCluskey, both of Phoenix, Ariz., and Charles R. Denny and Robert Koerner, Attys., Dept. of Justice, both of Washington, D. C. (Geraint Humpherys, District Counsel, U. S. Indian Field Service, of Los Angeles, Cal., of counsel), for appellee.

Before WILBUR, HANEY, and HEALY, Circuit Judges.

WILBUR, Circuit Judge.

This is an appeal from an order of court sustaining the action of the Water Commissioner in the execution of its decree. The action was brought in 1925 and final decree rendered therein in 1935 in pursuance of a stipulation of the parties expressly agreeing to the terms of the decree which determines and regulates the rights of the water users on the Gila River in New Mexico and Arizona to the natural flow of the River and to the waters stored in the San Carlos Reservoir by the Coolidge Dam situated in the San Carlos Indian Reservation.

The decree provided for the appointment of a water commissioner to distribute the water in accordance with the terms of the decree. It reserved jurisdiction in the trial court to consider applications to review the action of the water commissioner from time to time. The appellants herein, called by the decree "upper valley defendants", being dissatisfied with a ruling of the water commissioner concerning their water rights in the Gila River as fixed by the decree, applied to the court for an order requiring the water commissioner to conform to their interpretation of the decree. The trial court considered the application but upheld the decision of the water commissioner. They appeal from this decision of the court.

The question involved on this appeal is the meaning of the term "stored water", as used in paragraph 8 of the decree.

The action was brought by the United States on its behalf and as trustee for the Indians in the San Carlos and Gila River Indian Reservations. The action was brought against all the canal companies and water users along the River so far as they could be ascertained and all joined in the stipulation adopting the proposed decree. The decree is very long. Before pointing to the exact language of the decree about which this controversy revolves it is necessary to state some of the facts pertaining to the use of the waters of the Gila River.

The Gila River, although a very long stream rising in New Mexico and extending across Arizona, varies greatly from time to time in the amount of water carried therein. The region through which it flows is subject to cloudbursts and heavy floods and the rainy season is limited in extent. The land through which the stream flows is semi-arid or desert land requiring irrigation for successful agricultural or horticultural results.

In 1924, 43 Stat. 475, Congress authorized the building of a dam across the River, known as the Coolidge Dam, in San Carlos Canyon to impound the water of the stream so that it could be utilized without waste. It was proposed that the dam should have a storage capacity of 1,285,000 acre feet, sufficient to irrigate 214,166 2/3 acres of land, allowing 6 acre feet per annum for each acre irrigated, which was stipulated and decreed to be the duty of water in that region. It was desired that the decree should not only fix the rights of all parties thereto in and to the natural flow of the stream but also their rights with relation to the stored waters which were to be impounded above the Coolidge Dam. In fixing the water rights theretofore existing it was essential that the order of priority of the rights be determined and set out in the decree for the reason that the flow of water in the river was frequently too small to give to each owner the amount which he would otherwise be entitled to use upon his land. By the terms of the decree the rights of all the water users were fixed at six acre feet per annum for the land designated in the decree with a flow of not exceeding 1/80th of a cubic foot per second for each acre of land entitled to water for irrigation.

The provision of the decree with reference to the upper valley defendants involved herein, is subdivision 2 of article 8 thereof, which is as follows: "(2) That on 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, provided for herein, 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; the diversion of said amount of water by said defendants to be in accord with the priorities as between themselves stated in said priority schedule and for the irrigation of the lands covered by the rights accredited to said defendants in said priority schedule and the quantity of water permitted to be taken by said defendants in disregard of prior...