U.S. v. Gila Valley Irr. Dist., 93-15076

• Citation: 31 F.3d 1428
• Decision Date: 13 July 1994
• Docket Number: No. 93-15076,93-15076
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. GILA VALLEY IRRIGATION DISTRICT, et al.; State of Arizona, Defendants-Appellants, v. GILA RIVER INDIAN COMMUNITY; San Carlos Apache Tribe; San Carlos Irrigation District, Plaintiffs-Intervenors-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1428

31 F.3d 1428

UNITED STATES of America, Plaintiff-Appellee, v. GILA VALLEY IRRIGATION DISTRICT, et al.; State of Arizona, Defendants-Appellants, v. GILA RIVER INDIAN COMMUNITY; San Carlos Apache Tribe; San

Carlos Irrigation District,

Plaintiffs-Intervenors-Appellees.

No. 93-15076.

United States Court of Appeals Ninth Circuit.

Argued and Submitted March 16, 1994.

Submission Deferred March 25, 1994.

Resubmitted July 6, 1994.

Decided July 13, 1994.

L. Anthony Fines, Raven, Kirschner & Norell, Tucson, AZ, for defendants-appellants.

Robert L. Klarquist, U.S. Dept. of Justice, Environment and Natural Resources Div., Washington DC, for plaintiff-appellee.

Alfred S. Cox, Cox and Cox, Phoenix, AZ, for plaintiffs-intervenors-appellees.

Joe P. Sparks, Kevin T. Tehan, Scottsdale, AZ, and John H. Ryley, Phoenix, AZ, for San Carlos Apache Tribe of Arizona, plaintiffs-intervenors-appellees.

Appeal from the United States District Court for the District of Arizona.

Before: CHOY, REINHARDT, and LEAVY, Circuit Judges.

CHOY, Circuit Judge:

I. FACTUAL AND PROCEDURAL BACKGROUND

This is an appeal from the district court's interpretation of an elaborate Consent Decree entered in 1935. The dispute ultimately arises out of Global Equity 59, a suit filed by the United States in 1925, against all non-Indian users of the Gila River water. ¹ The United States sued in its trustee capacity on behalf of the Gila River Indian Community (GRIC) and the San Carlos Apache Tribe (Apache Tribe). At that time, the GRIC attempted unsuccessfully to intervene. The suit ultimately resulted in a Consent Decree in 1935 (the Decree), which was stipulated to by the non-Indian parties, and the United States in its trustee capacity on behalf of the GRIC and the Apache Tribe.

The Decree provides for a system of priorities, and was based on the law of prior appropriation, as well as compromise by the parties. Thus, with one exception, those parties who had earlier put the water to beneficial use were granted senior priorities to take that water over later users. The priority rights worked out to be exactly opposite (for purposes of this appeal) to the geographical location of the parties. The Gila River first flows past the Upper Valley Defendants (UVDs), who have a priority date of 1872. There is slightly less than 40,000 acres of land covered by the Decree in the Upper Valleys. Next, the river flows onto the Apache Tribe Reservation, where the Apache Tribe has a priority right dated 1846. ² They have the right to divert 6,000 acre feet of water per year, delivered at a rate of 12.5 c.f.s., in order to irrigate 1,000 acres of land. ³ From there, the river flows into the San Carlos Reservoir (the Reservoir), formed by the Coolidge Dam. Below the Coolidge Dam is the Ashhurst-Hayden Dam, where the GRIC has a time immemorial right to 210,000 acre feet of water to irrigate 35,000 acres of land. Finally, the United States has the right to store water in the Reservoir on behalf of the GRIC and specific other users below the Reservoir, such as the San Carlos Irrigation and Drainage District (SCIDD). This right is dated 1924.

There is one exception to this priority system. The UVDs have a right to take apportioned water, based on the amount stored for release in the Reservoir by the United States on behalf of the GRIC or the SCIDD. This right is held by the UVDs in disregard of the priority rights of users below the Reservoir. Water can be released from the Reservoir only to the GRIC and the SCIDD, not for use by the Apache Tribe.

All of the above mentioned diversions, save releases from the Reservoir of stored water, are to be taken from the "natural flow" of the Gila River.

The Decree is administered by a court-appointed Water Commissioner. The district court retained jurisdiction to enforce and interpret the Decree. The Decree calls for water to be allocated according to the above priorities by each party making a "first and prior call" up to the extent of its right to the available natural flow of the river. Decree, Article V, p. 12. However, the Water Commissioner never instituted a system of calls identifying the GRIC's exercise of its water right on its priority to the natural flow of the river, as distinguished from water released from storage in the Reservoir. Instead, the Water Commissioner invented 1924(b) priority. If the level of water in the Reservoir was found to be rising, the Water Commissioner presumed that the United States was exercising its 1924 priority right to store water on behalf of the GRIC, rather than the GRIC exercising its time immemorial priority right. Therefore, the Water Commissioner assumed that all priority rights prior to 1924 were satisfied. As a result, the Water Commissioner concluded that upstream users such as the UVDs were taking their water based on their priority right, not on their apportionment right. This was done retroactively, by looking back at the levels in the Reservoir, then changing the designation of UVDs' diversions from apportioned to priority on those days the level rose.

Also pertinent to this appeal, the Decree states that each user is only entitled to divert six acre feet per year for each acre "then being irrigated". This amount could be diverted at a rate not greater than 1/80 c.f.s. per acre, and was regardless of whether the diversion was pursuant to a priority or an apportionment right. ⁴ Decree Article V, p. 12, Article XI, p. 112. However, since the Decree was entered into, the Water Commissioner has allowed the UVDs to divert water for all their acreage designated under the Decree (decreed acreage), and has never adjusted for acreage taken out of agricultural production, or for acreage put to agricultural uses, but not irrigated.

Finally, the Decree allows for "stacking", a process where all water allocated to several fields is stacked together and applied to one field at a time, thus creating extra water pressure. Decree, Article XI, p. 112. This practice results in more efficient farming.

The Decree has been interpreted numerous times by the district court, and this court has reviewed four of these decisions. See United States v. Gila Valley Irrigation Dist., 961 F.2d 1432 (9th Cir.1992); United States v. Gila Valley Irrigation Dist., 959 F.2d 242 (TABLE), Nos. 90-16720 & 90-16721, filed April 3, 1992, and amended June 5, 1992 (unpublished); United States v. Gila Valley Irrigation Dist., 454 F.2d 219 (9th Cir.1972); Gila Valley Irrigation Dist. v. United States, 118 F.2d 507 (9th Cir.1941).

The current litigation arises out of the GRIC's intervention into Global Equity 59, followed by the intervention of the Apache Tribe. These two parties requested that the district court enforce the Decree to redress grievances asserted by these Indians. The United States is also a party to the litigation in its capacity as trustee, and supports the positions taken by both the GRIC and the Apache Tribe. The current phase of the litigation involves certain counts of the Apache Tribe's complaint, as well as certain counts of the GRIC's complaint. ⁵ Certain issues involved in this litigation were deferred by a court-approved stipulation until a later trial. This included all water quality issues.

The district court issued a "Final Memorandum and Order" on September 18, 1992. United States v. Gila Valley Irrigation Dist., 804 F.Supp. 1 (D.Ariz.1992). The UVDs timely appealed from this Order.

II. DISCUSSION

A. Standard of Review:

The district court's interpretation of a consent decree is reviewed de novo, but this court must defer to the district court's factual findings underlying that interpretation unless they are clearly erroneous. United States v. Gila Valley Irrigation Dist., 961 F.2d 1432, 1434 (9th Cir.1992). The granting or denial of a preliminary injunction is subject to limited review, and will only be reversed where the district court abused its discretion or based its decision on an erroneous legal standard or on clearly erroneous findings of fact. Senate of California v. Mosbacher, 968 F.2d 974, 975 (9th Cir.1992).

B. The Apache Tribe's Water Diversion System:

The UVDs' first contention is that the district court erred in its holding regarding the Apache Tribe's proposed diversion system. Count One of the Apache Tribe's complaint sought a judicial interpretation of its decreed right to divert 12.5 c.f.s. from the river. In connection with this, the district court heard evidence regarding different systems that the Apache Tribe could use to divert its share of water from the river. While the court never approved or disapproved of any particular method of diversion, it did make the following ruling:

Method of diversion : The Decree allows for diversions by ditches (gravity flow) and pumps. Decree, Article V.... But it does not require any one method, nor does it impose a reasonableness standard. The Tribe can no more be ordered to use a cost-effective or efficient method of diversion than the UVDs. Furthermore, what may appear cost-effective to the upper valley farmers may be simply beyond the financial reach of the Tribe. Therefore, the Court rejects the arguments that the Tribe is required to install pumps or drains instead of canals, or to line its canals (which the UVDs do not generally do)....

Gila Valley Irrigation Dist., 804 F.Supp. at 8. The district court went on to refuse to hold that the Water Commissioner should be empowered to approve any new diversion system on the river, since the UVDs have never been subjected to approval of their systems, and the Decree contains no such approval authority for the Commissioner. Id.

Before making any substantive argument, the UVDs allege that the district court may have been improperly influenced by irrelevant evidence in making this ruling. They note that the district court heard evidence concerning the poverty, unemployment, infant mortality rate, and general oppression of the members of the Apache Tribe. In...