United States v. Gila Valley Irrigation District, 25563.

Decision Date19 January 1972
Docket NumberNo. 25563.,25563.
Citation454 F.2d 219
PartiesUNITED STATES of America, Petitioner-Appellee, v. GILA VALLEY IRRIGATION DISTRICT et al., Respondents-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

Robert O. Lesher (argued), of Lesher & Scruggs, Tucson, Ariz., Anderson & Welker, Safford, Ariz., for respondents-appellants.

Robert S. Lynch, Asst. U. S. Atty., (argued), R. S. Alleman, Asst. U. S. Atty., Richard K. Burke, U. S. Atty., Phoenix, Ariz., Robert Hurley (argued), of Jennings, Strouss & Salmon, Phoenix, Ariz., Gust, Rosenfeld & Divelbess, Phoenix, Ariz., Edmund B. Clerk, Martin Green, Robert S. Lynch, Dept. of Justice, Shiro Kashiwa, Asst. Atty. Gen., Lands

& Nat. Resources Division, Washington, D. C., for petitioner-appellee.

Before DUNIWAY, ELY and CHOY, Circuit Judges.

CHOY, Circuit Judge:

This is an appeal from a decree of the District Court declaring improper certain water-diversion practices of the Water Commissioner appointed by that court to administer its prior decree of June 29, 1935. We affirm.

The Gila River originates in Western New Mexico and flows in a general westerly direction across Arizona to its confluence with the Colorado River. The river's volume varies greatly during the year, and the region through which it flows is subject to cloudbursts and heavy floods. The rainy season is short, and the land through which the river flows is "semi-arid or desert . . . requiring irrigation for successful agricultural and horticultural use." Gila Valley Irrigation District v. United States, 118 F.2d 507, 508 (9th Cir., 1941).

In 1924, Congress authorized the construction of the Coolidge Dam across the river, creating the San Carlos Reservoir "for the purpose, first, of providing water for the irrigation of lands allotted to 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 of the Interior, can be served . . . without diminishing the supply necessary for said Indian lands . . ." Act of June 7, 1924, c. 288, 43 Stat. 475.

In 1925, the United States, on its own behalf and on the behalf of the Pima and Apache Indians (Lower Valleys Users), sued certain irrigation districts, canal companies, and individuals (Upper Valleys Users) whose lands, irrigated by the river's waters, lie above the Coolidge Dam, the San Carlos Reservoir, and the Indian lands, to determine their respective water rights. An elaborate consent decree was entered on June 29, 1935, establishing priorities to the river's water and providing for a water commissioner to administer and continuing district court jurisdiction to interpret the decree. The decree recognized that the rights of the Pimas below the reservoir were "immemorial," that is, prior to all others and that the rights of the Apaches above the reservoir were prior to all others, except the Pimas. The 1935 decree sets forth the full measure, extent, and limits of the rights of all the signatory parties and their successors in interest to divert and utilize the waters of the Gila River.

In 1965, the United States on behalf of the Pimas and the Apaches, joined by the San Carlos Irrigation and Drainage District, sued the Water Commissioner challenging as unauthorized by the decree three water-diversion practices which benefitted the Upper Valleys Users to the detriment of the Lower Valleys Users. The Upper Valleys Users intervened, and now appeal the District Court's ruling against them.

1. Article VIII(2) of the 1935 decree allows the Upper Valleys Users to take "apportioned water" from the river, provided, that,

"The drafts on the stream by the upper valleys defendants shall be limited to a seasonal year diversion which will result in an actual consumptive use from the stream of not to exceed 120,000 acre feet of water; . . . and the Water Commissioner shall determine what diversions are permissable sic and reduce diversions in the inverse order of their priorities when and to the extent necessary . . ."

Consumptive use is calculated by first adding together the recorded flows at two upstream gauging stations and then subtracting the recorded flow at a downstream gauging station just above the reservoir. Both the Water Commissioner and the Upper Valleys Users contend that the latter's "apportioned water" under Article VIII(2) should not include their Article V "priority water:"

". . . Each owner is entitled . . . to divert from the natural flow of the stream . . . a total amount of water not exceeding 6 acre feet per acre of said land . . ."

Since 1949, however, the Water Commissioner has subtracted diversions of this "priority water" by the Upper Valleys Users before determining if the 120,000...

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7 cases
  • In re General Rights of Gila River System, WC-02-0003-IR.
    • United States
    • Arizona Supreme Court
    • 9 Febrero 2006
    ...and flows in a general westerly direction across Arizona to its confluence with the Colorado River." United States v. Gila Valley Irrigation Dist., 454 F.2d 219, 220 (9th Cir.1972). "The land through which the stream flows is semi-arid or desert land requiring irrigation for successful agri......
  • San Carlos Apache Tribe v. U.S.
    • United States
    • U.S. District Court — District of Arizona
    • 9 Julio 2003
    ...(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) an......
  • U.S. v. Gila Valley Irr. Dist.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 13 Julio 1994
    ...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 The current litigation arises out of the GRIC......
  • US v. Gila Valley Irr. Dist.
    • United States
    • U.S. District Court — District of Arizona
    • 23 Marzo 1996
    ...31 F.3d 1428 (9th Cir.1994); United States v. Gila Valley Irrigation Dist., 961 F.2d 1432 (9th Cir.1992); United States v. Gila Valley Irrigation Dist., 454 F.2d 219 (9th Cir.1972); United States v. Gila Valley Irrigation Dist., 804 F.Supp. 1 (D.Ariz.1992). The Court's findings of fact rela......
  • Request a trial to view additional results

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