San Carlos Apache Tribe of Arizona v. State of Ariz., YAVAPAI-APACHE
| Decision Date | 23 February 1982 |
| Docket Number | Nos. 80-5137,YAVAPAI-APACHE,PIMA-MARICOPA,MOHAVE-APACHE,80-5189 and 80-5219,80-5138,s. 80-5137 |
| Citation | 668 F.2d 1093 |
| Parties | SAN CARLOS APACHE TRIBE OF ARIZONA, Plaintiff-Appellant, v. The STATE OF ARIZONA, a body politic; and the State Land Department of the State of Arizona; and John M. Little, Individually and as Acting Commissioner of the State Land Department of the State of Arizona; and Salt River Valley Water Users' Association, an Arizona Corporation, Defendants-Appellees. PAYSON COMMUNITY OFINDIANS, Plaintiff-Appellant, v. The STATE OF ARIZONA, a body politic; and the State Land Department of the State of Arizona; and John M. Little, Individually and as Acting Commissioner of the State Land Department of the State of Arizona; and Salt River Valley Water Users' Association, an Arizona Corporation, Defendants-Appellees. SALT RIVERINDIAN COMMUNITY, Plaintiff-Appellant, v. The STATE OF ARIZONA and John M. Little, Acting Commissioner of the Arizona State Land Department, Defendants-Appellees. FORT McDOWELLINDIAN COMMUNITY, for and on behalf of itself and its members, Plaintiff-Appellant, v. SALT RIVER VALLEY WATER USERS' ASSOCIATION; Salt River Project Agricultural Improvement and Power District; City of Phoenix; City of Prescott; City of Jerome; Phelps Dodge Corporation; Phelps Dodge Industries, Inc.; Arizona Water Company; Miller Brothers Farms, Inc.; Camp Verde Water Systems; Cottonwood Water Works, Inc.; Copper Basin Water Co.; V Bar V Cattle Co., Inc.; Harold W. Bullard; and the State of Arizona, Individually and as representative of a class composed of all others similarly situated, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Joe Sparks, E. Dennis Siler, Kevin T. Tehan, Sparks & Siler, P.C., Scottsdale, Ariz., for San Carlos Apache Tribe of Arizona and Payson Community of Yavapai-Apache Indians.
Phillip J. Shea, Marks, Shea & Wilks, Phoenix, Ariz., for Salt River Pima-Maricopa Indian Community.
Lawrence A. Aschenbrenner and Arlinda F. Locklear, Washington, D. C., for Fort McDowell Mohave-Apache Indian Community.
Alvin H. Shrago, Jerry L. Haggard, Evans, Kitchel & Jenckes, Phoenix, Ariz., for Phelps Dodge Corp. and Phelps Dodge Industries.
Russell A. Kolstrud, Asst. Atty. Gen., Phoenix, Ariz., for State of Ariz.
M. Byron Lewis, John B. Weldon, Jr., Jennings, Strouss & Salmon, Frederick J. Martone, James R. Huntwork and Kent A. Blake, Fennemore, Craig, Von Ammon & Udall, Phoenix, Ariz., for Salt River Valley User's Ass'n.
Mark Wilmer, Snell & Wilmer, Bill Stephens, Stephens & Toles and Carol Benyi, Phoenix, Ariz., for City of Phoenix and Prescott, Ariz.
Appeal from the United States District Court for the District of Arizona.
Before MERRILL, CHOY and FERGUSON, Circuit Judges.
Several Indian tribes appeal dismissal of petitions brought in federal district court to adjudicate their water rights in several water systems in the State of Arizona. The district court, in a consolidated order, dismissed the suits in favor of a state proceeding relying on Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). We reverse.
Appellants San Carlos Apache Tribe, Payson Community of Yavapai-Apache Indians, Salt River Pima-Maricopa Indian Community and Fort McDowell Mohave-Apache Indian Community (the Tribes) are federally-recognized Indian tribes occupying reservations located in the State of Arizona. The region is semi-desert with alluvial soils suitable for agriculture, but a low rainfall makes irrigation necessary. The only surface water available is provided by the Salt and Verde Rivers which are fed by a 13,000-square-mile watershed.
Appellees include the State of Arizona, various state officials, and the Salt River Valley Water Users' Association.
A. Prior Appropriation
Most western states apply the doctrine of prior appropriation in establishing rights to the use of water. Under this doctrine, one acquires a right to water by diverting it from its natural source and applying it to some beneficial use. Continued beneficial use of the water is required in order to maintain the right. In periods of shortage, priority among confirmed rights is determined according to the date of initial diversion. 1 This doctrine, which is based on use, unavoidably brings the interest of state claimants into conflict with Indian tribes who claim water rights under the Winters doctrine, which is based on need.
2. Winters or Reservation Doctrine
Indian water rights are created outside the system of state law and exist independently of that system. Indian Water Rights: A State Perspective After Akin, 57 Neb.L.Rev. 295 (1978). In Winters v. United States, 207 U.S. 564, 28 S.Ct. 207, 52 L.Ed. 340 (1908), the Supreme Court described the nature of Indian water rights. The Court held that each time the federal government sets aside land from the public domain for a federal purpose it implies a reservation of water resources to meet the needs of that land. An implied reservation of water for an Indian reservation will be found where it is necessary to fulfill the purposes of the reservation. They are reserved in trust to the federal government with a priority date as of the time the reservation was established. The United States thus holds legal title. Arizona v. California, 373 U.S. 546, 600, 83 S.Ct. 1468, 1498, 10 L.Ed.2d 542 (1963). Unlike the rights accruing to non-Indians based on beneficial use and non-use, Indian water rights are reserved for present and future needs of the reservations. Federally reserved water rights affect 17 states. The precise extent and nature of most reserved rights have yet to be determined. 2
The Winters doctrine is the source of major problems for dry, western states. As water is reserved for tribes for current and future needs, the quantity required is unspecified. Without jurisdiction over the tribal lands or a description of the scope of the reserved right, states are unable to develop comprehensive water allocation plans with certainty.
In 1952, Congress passed the McCarran Amendment, 66 Stat. 560, 43 U.S.C. § 666, consenting to state court jurisdiction over the United States when litigation involves comprehensive adjudication of water rights. The amendment provides that "consent is hereby given to join the United States as a defendant in any suit (1) for the adjudication of rights to use of water of a river system or other source, or (2) for the administration of such rights, where it appears that the United States is the owner of or is in the process of acquiring water rights by appropriation under State law, by purchase, by exchange, or otherwise, and the United States is a necessary party to such suit." Previously, the United States could not be joined in water rights adjudication because of sovereign immunity. The McCarran Amendment waives the sovereign immunity in general water rights adjudications. The purpose of the McCarran Amendment was to eliminate the uncertainty engendered by the inability to compel adjudication of federal water rights. The amendment grants state courts the power to adjudicate federal water rights.
4. Akin Decision
In Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) (Akin), 3 the Supreme Court interpreted the McCarran Amendment. The question in Akin concerned the effect of the McCarran Amendment upon the jurisdiction of the federal district courts under 28 U.S.C. § 1345 over suits for determination of water rights brought by the United States as trustee for certain Indian tribes and as owner of various non-Indian Government claims. In Akin the Government brought suit in the United States District Court for the District of Colorado, invoking the court's jurisdiction under 28 U.S.C. § 1345. 28 U.S.C. § 1345 provides:
Except as otherwise provided by Act of Congress, the district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress.
In the suit, the Government asserted reserved rights on its own behalf and on behalf of certain Indian tribes, as well as rights based on state law.
Shortly after the federal suit was commenced, one of the defendants in that suit filed an application in the state court for Division 7 4 seeking an order directing service of process on the United States in order to make it a party to proceedings in Division 7 for the purpose of adjudicating all of the Government's claims, both state and federal. On January 3, 1973, the United States was served pursuant to authority of the McCarran Amendment. Several defendants and intervenors in the federal proceeding then filed a motion in the district court to dismiss on the ground that under the amendment, the district court was without jurisdiction to determine federal water rights. Without deciding the jurisdictional question, the district court, on June 21, 1973, granted the motion stating that the doctrine of abstention required deference to the proceedings in Division 7. On appeal, the Court of Appeals for the Tenth Circuit reversed, United States v. Akin, 504 F.2d 115 (1974), holding that the suit of the United States was within district court jurisdiction under 28 U.S.C. § 1345, and that abstention was inappropriate.
Certiorari was granted and in Colorado River Water Conservation District v. United States, the Supreme Court held that although the district court had jurisdiction over the action and abstention was improper, the dismissal was nevertheless proper under the doctrine of "wise judicial administration."
The Court first held that in view of the McCarran Amendment's language and legislative history and controlling principles of statutory construction, the amendment in no way diminished the...
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