San Carlos Apache Tribe v. U.S., No. CV 99-255 TUC DCB.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtBury
Citation272 F.Supp.2d 860
Decision Date09 July 2003
Docket NumberNo. CV 99-255 TUC DCB.
PartiesSAN CARLOS APACHE TRIBE, a federally recognized Indian Tribe; and Velazquez Sneezy; Steven Casa, and Elliott Talgo, Sr., members of the San Carlos Indian Tribe, Plaintiffs, v. UNITED STATES of America; and United States of America as Trustee for Gila River Indian Community, a federally recognized Indian tribe; and San Carlos Apache Tribe, a federally recognized Indian Tribe; Gale Norton, Secretary of the U.S. Department of the Interior; the U.S. Department of Interior; and Neil A. McCaleb, Director of the Bureau of Indian Affairs, a federal agency within the United States Department of the Interior; operating the San Carlos Indian Irrigation Project (SCIIP), for the benefit of the San Carlos Irrigation and Drainage District (SCIDD), Defendants,
272 F.Supp.2d 860
SAN CARLOS APACHE TRIBE, a federally recognized Indian Tribe; and Velazquez Sneezy; Steven Casa, and Elliott Talgo, Sr., members of the San Carlos Indian Tribe, Plaintiffs,
v.
UNITED STATES of America; and United States of America as Trustee for Gila River Indian Community, a federally recognized Indian tribe; and San Carlos Apache Tribe, a federally recognized Indian Tribe; Gale Norton, Secretary of the U.S. Department of the Interior; the U.S. Department of Interior; and Neil A. McCaleb, Director of the Bureau of Indian Affairs, a federal agency within the United States Department of the Interior; operating the San Carlos Indian Irrigation Project (SCIIP), for the benefit of the San Carlos Irrigation and Drainage District (SCIDD), Defendants,
No. CV 99-255 TUC DCB.
United States District Court, D. Arizona.
July 9, 2003.

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John H Ryley, Esq, Joe P Sparks, Esq, Kevin T Tehan, Esq, Susan B Montgomery, Sparks Tehan & Ryley PC, Scottsdale, for San Carlos Apache Tribe of Arizona, a federally recognized Indian tribe, Velasquez Sneezy, Sr, members of the San Carlos Apache Tribe, Elliott Talgo, Sr, members of the San Carlos Apache Tribe plas.

Patrick Barry, U.S. Dept of Justice, Land & Natural Resources Division, Washington, DC, Don B Overall, U.S. Attorney's Office, Tucson, Rodney B Lewis, Esq, Gila River Indian Community, Pima-Maricopa Tribe Law Office, Sacaton, John T Hestand, Esq, Ofc of Water Rights, Gila River Indian Community, Chandler, Riney B Salmon, II, Esq, Lisa Michelle McKnight, Esq, Salmon Lewis & Weldon PLC, Phoenix, for United States of America, Gila River Indian Community, a federally recognized Indian Tribe, San Carlos Apache Tribe of Arizona, a federally recognized Indian tribe, Interior, Department of, San Carlos Irrigation Project District, for the benefit of the San Carlos Irrigation and Drainage District, dfts.

ORDER

BURY, District Judge.


Plaintiffs, the San Carlos Apache Tribe (Apache Tribe) brought this action in 1999. They sought and were denied a Temporary Restraining Order and a Preliminary Injunction against Defendants the United States of America, the Secretary of the United States Department of the Interior, the Bureau of Indian Affairs (BIA) operating the San Carlos Indian Irrigation Project (SCIIP)1 for the benefit of the San Carlos Irrigation and Drainage District (SCIDD) and the Gila River Indian Community (GRIC). The SCIDD and GRIC are interveners in this action.

Plaintiffs seek to enjoin the release of water from the San Carlos Reservoir ("Reservoir" or "Lake"), except for 10 cubic feet per second, until there is a minimum pool of 75,000 acre-feet of water in the Reservoir. The Reservoir sits on federal land, but lies within the San Carlos

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Apache Tribe Reservation. The Apache Tribe runs a concession operation for fishing and camping in and around the Lake that has provided revenues of half a million dollars up to in excess of two million dollars a year. The water in the Reservoir is subject to being drawn down for irrigation purposes every year, which jeopardizes the recreational activities at the Lake, especially when there are drought conditions in Arizona.

The Reservoir was completed in 1928, and the amount of water in it has fluctuated considerably depending on snow-pack, runoff, precipitation, carryover, and agricultural needs. The Reservoir has fallen below 75,000 acre-feet for all or part of 399 of the 720 months between 1937 and 1997. (GRIC SOF at A.) The Reservoir has been completely drained or drained below 1,000 acre-feet on 21 occasions between 1934 and 1995 because of a lack of water. (GRIC SOF at A.) The Reservoir has filled to overflowing 8 times during 5 different years. (GRIC SOF at A.) Since March of 1999, the Reservoir has been below 75,000 acre-feet for all or part of 27 of the 41 months. (GRIC SOF at A.) The Reservoir level was at 25,810 acre-feet October 8 and 9, 2000. (GRIC SOF at A.)

The Apache Tribe alleges that draining the Reservoir below 75,000 acre-feet of water will cause a "catastrophic fishkill" that under Section 9 of the Endangered Species Act (ESA) would constitute a taking of the following endangered and threatened species: Peregrine Falcon,2 Razorback Sucker,3 Spikedace,4 Bald Eagle,5 and Southwestern Willow Flycatcher.6

In addition to the Section 9-ESA claim, the Plaintiffs allege that there has been a material change in circumstances that justifies modification of the comprehensive management provisions for operating the Reservoir that are set out in the Gila River Decree, The Plaintiffs allege that the Defendants' release of water from the Reservoir violates the federal common law of public nuisance, the National Historic Preservation Act (NHPA), the Archeological Resources Protection Act (ARPA), the Native American Graves Protection and Repatriation Act (NAGPRA), the National Environmental Policy Act (NEPA), and the Fish and Wildlife Coordination Act (FWCA). Plaintiffs allege that Defendants have breached their federal trust responsibilities to the Apache Tribe.

This case was previously before the Honorable Alfredo C. Marquez. He issued an Amended Order on January 28, 2002, dismissing Plaintiffs' Section 7-ESA claim that Defendants failed to consult with the United States Fish and Wildlife Service (FWS) regarding the effects of drawing down the Reservoir for irrigation purposes. Judge Marquez based the dismissal on Plaintiffs' failure to satisfy the 60-day notice requirement for bringing a citizen suit under ESA. Subsequently, Judge Marquez refused to allow Plaintiffs to amend the Complaint to allege a new Section 7 claim because it would unduly delay the case, but he allowed amendment for newly appointed agency administrators to be substituted as named parties. On August 13, 2002, this case was reassigned to this Court. The First Amended Complaint

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has been filed, and it includes allegations of Section 7-ESA violations that must be dismissed in accordance with the law of the case as previously determined by Judge Marquez. The remainder of Plaintiffs' claims are presented for decision by summary judgment. The Court grants the Federal Defendants' Motion for Summary Judgment on all claims. The Interveners' Motions for Summary Judgment are moot.

Background and History of the Case

The Akimel O'Odham (Pima) Indians are an agrarian people who were practicing irrigated agriculture before the Spanish arrived in North America. In the late 1700s, the Peeposh (Maricopa) Indians formed an economic and military confederation with the Pima Indians that prospered until the arrival of the Euro-Americans, who diverted the Gila and Salt Rivers away from the Confederation. Robbed of the water it needed to sustain its agriculture, the Pima and Maricopa Indians were reduced to poverty, malnutrition, and starvation.

In 1924, in an effort to rectify the loss of water, the United States Congress enacted the San Carlos Project Act, as follows:

For the purpose, first of providing water for the irrigation of lands allotted to the Pima Indians on the Gila River Reservation, Arizona, now without an adequate supply of water, and second, for the irrigation of such other lands in public or private ownership, as in the opinion of the Secretary, can be served with water impounded by said dam, without diminishing the supply necessary for said Indian land.

The San Carlos Project Act authorized construction of the Coolidge Dam and creation of the San Carlos Irrigation Project (SCIIP). The federal government purchased the land for the Coolidge Dam site from the Apache Tribe. Consequently, the dam sits on federal property, but lies within the confines of the San Carlos Apache Reservation. Prior to inundation of the Lake in 1928, the lake-bed was the site of the town of "old" San Carlos where the Apache Tribe resided. Additionally, the waters impounded behind Coolidge Dam cover tribal cemeteries, graves, and archaeology sites that contain and protect human remains, private homes, a grain mill, and many other historical sites, many of which have significant spiritual and cultural meaning to the Apache Tribe.

The federal government financed the construction of the Dam by equal reimbursement from the sale of Pima Indian-owned lands (GRIC) and implementation of a repayment plan to cover private lands (SCIDD) that would be served from the waters impounded by the dam. The Coolidge Dam was built near the confluence of the San Carlos and Gila Rivers, approximately 90 miles southeast of Phoenix, Arizona. The water flows from the Reservoir at Coolidge Dam down the Gila River for 68 miles and is diverted at the Ashurst-Hayden Diversion Dam to the Florence-Casa Grande Canal that delivers it to GRIC and SCIDD lands through a series of lateral and sublateral canals.

To secure the water supply for the SCIIP, "the United States, on its own behalf and on the behalf of the Pima and Apache Indians (Lower Valley Users)," sued irrigation districts, canal companies, individual upstream farmers, cities and towns such as Safford and Mammoth, and mining operations such as ASARCO and Phelps Dodge (Upper Valleys Users) to determine the water rights of the water users along the Upper Gila River. United States v. Gila Valley Irrigation District, 454 F.2d 219, 220 (9th Cir.1972). There is a direct relationship between water use above Coolidge Dam (above ground and pumping diversions) and the amount of water in the

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Reservoir available for release downstream to GRIC and SCIDD.

In 1935, the court entered a consent decree commonly called the Globe Equity 59 Decree ("Globe Equity Decree" or "Gila Decree"), bringing to a close the litigation initiated by the United States in 1925 against the users on the main stem of the Gila River. "The decree...

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13 practice notes
  • San Carlos Apache Tribe v. U.S., No. 03-16874.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 9, 2005
    ...in the Ninth Circuit involving NHPA violations . . . rely on the APA for jurisdiction." San Carlos Apache Tribe v. United States, 272 F.Supp.2d 860, 885 (D.Ariz.2003) ("San Carlos I"). We agree with this result but note a substantive difference. The APA is not a jurisdictiona......
  • Franco v. United States Dep't of the Interior, NO. CIV S-09-1072 KJM-KJN
    • United States
    • U.S. District Court — Eastern District of California
    • July 26, 2012
    ...for purposes other than the excavation or removal of archaeological resources." San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 888 (D. Ariz. 2003); Attakai v. United States, 746 F. Supp. 1395, 1410-11 (D. Ariz.1990) (dismissing ARPA claims where no purposeful activities......
  • Franco v. United States Dep't Of The Interior, No. Civ. 2:09-cv-01072-FCD EFB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 16, 2010
    ...resources, not excavations which may, or in fact inadvertently do, uncover such resources”); San Carlos Apache Tribe v. United States, 272 F.Supp.2d 860, 888 (D.Ariz.2003) (same, citing Attakai ). However, because notice pleading applies, and plaintiffs sufficiently allege that the USFS des......
  • Franco v. U.S. Forest Serv., No. 2:09-cv-01072-KJM-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 31, 2016
    ...action or undertaking to review, the court GRANTS summary judgment on this claim to defendant. See San Carlos Apache Tribe v. U.S., 272 F. Supp. 2d 860, 886 (D. Ariz. 2003), aff'd, 417 F.3d 1091 (9th Cir. 2005) (dismissing NHPA where "plaintiffs fail to identify the final agency action......
  • Request a trial to view additional results
13 cases
  • San Carlos Apache Tribe v. U.S., No. 03-16874.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • August 9, 2005
    ...in the Ninth Circuit involving NHPA violations . . . rely on the APA for jurisdiction." San Carlos Apache Tribe v. United States, 272 F.Supp.2d 860, 885 (D.Ariz.2003) ("San Carlos I"). We agree with this result but note a substantive difference. The APA is not a jurisdictiona......
  • Franco v. United States Dep't of the Interior, NO. CIV S-09-1072 KJM-KJN
    • United States
    • U.S. District Court — Eastern District of California
    • July 26, 2012
    ...for purposes other than the excavation or removal of archaeological resources." San Carlos Apache Tribe v. United States, 272 F. Supp. 2d 860, 888 (D. Ariz. 2003); Attakai v. United States, 746 F. Supp. 1395, 1410-11 (D. Ariz.1990) (dismissing ARPA claims where no purposeful activities......
  • Franco v. United States Dep't Of The Interior, No. Civ. 2:09-cv-01072-FCD EFB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • July 16, 2010
    ...resources, not excavations which may, or in fact inadvertently do, uncover such resources”); San Carlos Apache Tribe v. United States, 272 F.Supp.2d 860, 888 (D.Ariz.2003) (same, citing Attakai ). However, because notice pleading applies, and plaintiffs sufficiently allege that the USFS des......
  • Franco v. U.S. Forest Serv., No. 2:09-cv-01072-KJM-KJN
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Eastern District of California
    • March 31, 2016
    ...action or undertaking to review, the court GRANTS summary judgment on this claim to defendant. See San Carlos Apache Tribe v. U.S., 272 F. Supp. 2d 860, 886 (D. Ariz. 2003), aff'd, 417 F.3d 1091 (9th Cir. 2005) (dismissing NHPA where "plaintiffs fail to identify the final agency action......
  • Request a trial to view additional results

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