US v. Gila Valley Irr. Dist., Globe Equity No. 59.

CourtUnited States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
Writing for the CourtCOUGHENOUR
Citation920 F. Supp. 1444
PartiesUNITED STATES of America, Plaintiff, and Gila River Indian Community, Plaintiff in Intervention, and San Carlos Apache Tribe, Plaintiff in Intervention, v. GILA VALLEY IRRIGATION DISTRICT, et al., Defendants.
Docket NumberGlobe Equity No. 59.
Decision Date23 March 1996

920 F. Supp. 1444

UNITED STATES of America, Plaintiff,
and
Gila River Indian Community, Plaintiff in Intervention,
and
San Carlos Apache Tribe, Plaintiff in Intervention,
v.
GILA VALLEY IRRIGATION DISTRICT, et al., Defendants.

Globe Equity No. 59.

United States District Court, D. Arizona.

March 23, 1996.


920 F. Supp. 1445
COPYRIGHT MATERIAL OMITTED
920 F. Supp. 1446
COPYRIGHT MATERIAL OMITTED
920 F. Supp. 1447
PHASE IV MEMORANDUM AND ORDER — AMENDED

COUGHENOUR, District Judge.

This is the fourth phase of the most recent round of litigation concerning the enforcement of the Globe Equity Consent Decree of June 29, 1935 (hereafter "Decree")1 for the benefit of the Gila River Indian Community (hereafter "GRIC") and the San Carlos Apache Tribe (hereafter "Apache Tribe" or "Apaches"). The Court held trial November 7-17, 1994 and heard closing arguments January 18, 1995. The Court heard evidence and argument related to the following issues:

(1) whether the Apache Tribe's rights to the natural flow of the Gila River are compromised by farming activities in the upper valleys;
(2) whether apportionments to the Upper Valley Defendants (hereafter "UVDs") are subject to prior calls of both the San Carlos Apaches and the GRIC;
(3) whether Article VIII(4) requires that there be sufficient water stored for the proper irrigation of 80,000 acres of San Carlos Project lands before any apportionment may be made to UVDs;
(4) whether the Decree prohibits the diversion of the entire flow of the Gila River by defendants in the Duncan-Virden Valley pursuant to the "Cosper's Crossing condition";
(5) whether, under Article VIII(5), UVDs are prohibited from diverting an available apportionment unless there is water presently stored and available for release in the San Carlos Reservoir;
(6) what method the Water Commissioner should employ in deducting transit and seepage losses;
(7) whether the Decree endows the lands in the Gila Crossing District with priority rights that may be enforced as against all upstream parties to the Decree;
(8) what reporting scheme the Water Commissioner should adopt for ensuring that water is not diverted for use on lands not "then being irrigated," and whether the "then being irrigated" clause and the reporting scheme apply equally in the lower valleys;
(9) whether the Decree prohibits the use of the waters of the Gila River for purposes other than irrigating "crops of value";
(10) whether the call system being implemented for managing the Gila River complies with the legal requirements of the Decree; and
(11) whether the Court should order the permanent removal from the Decree those lands that have been determined to be urbanized by the Arizona Department of Water Resources.

It is unnecessary to restate the facts here, as they have been carefully laid out in prior decisions of this Court and the court of appeals. See, e.g., United States v. Gila Valley Irrigation Dist., 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

920 F. Supp. 1448
(9th Cir.1972); United States v. Gila Valley Irrigation Dist., 804 F.Supp. 1 (D.Ariz.1992). The Court's findings of fact relative to the specific issues decided here are set forth as necessary below

I. WATER QUALITY

The Apache Tribe argues that the waters of the Gila River are contaminated by farming practices in the upper valleys and that the Tribe is therefore deprived of its right under the Decree to the "natural flow" of the stream. UVDs argue that the water quality deteriorates as the river passes through the upper valleys due to natural causes, some of them unknown. For the reasons expressed below, the Court finds (1) that the water reaching the San Carlos Reservation is of significantly lower quality than the water in the upper valleys, (2) that UVDs are responsible to a significant degree for the degradation of the water reaching the reservation boundary, and (3) that equity requires that certain measures be adopted to protect the Tribe's water right.

The courts of the western states generally agree that a prior appropriator of water is entitled to protection, including injunctive relief, against material degradation of the quality of the water by junior appropriators upstream. See, e.g., Phoenix Water Co. v. Fletcher, 23 Cal. 481, 487 (1863); Salt Lake City v. Boundary Springs Water Users Ass'n, 2 Utah 2d 141, 270 P.2d 453 (1954). Further, the Supreme Court has held:

What diminution of quantity, or deterioration of quality, will constitute an invasion of the rights of the first appropriator will depend on the special circumstances of each case, considered with reference to the uses to which the water is applied. A slight deterioration in quality might render the water unfit for drink or domestic purposes, whilst it would not sensibly impair its value for mining or irrigation. In all controversies, therefore, between him and parties subsequently claiming the water, the question for determination is necessarily whether his use and enjoyment of the water to the extent of his original appropriation have been impaired by the acts of the defendant.

Atchison v. Peterson, 87 U.S. 507, 514-15, 22 L.Ed. 414 (1874). See also Arizona Copper Co. v. Gillespie, 230 U.S. 46, 56-58, 33 S.Ct. 1004, 1006-07, 57 L.Ed. 1384 (1913).2 There is no substantial dispute that the United States and the Apache Tribe bear the burden of proof on this issue. E.g., Pacific Portland Cement Co. v. Food Mach. & Chem. Co., 178 F.2d 541, 546 (9th Cir.1949).3

A. Overview

The Gila River once supported irrigation from its surface flow in regions extending from above the New Mexico border to the confluence of the Gila and the Salt River. The river is now overdeveloped and overallocated. In the upper valleys, surface flow is heavily augmented with water pumped from wells. Further, the growers in the upper valleys on occasion divert the entire flow of the stream into irrigation canals to serve the acreage they farm. The return flows from diversions are often recycled, diverted again and applied to other fields. The effects of these and other practices contribute to a dramatic increase in both the salt load and the salinity of the Gila River. The salt load is increased, in part, by pumping groundwater that is higher in salt content than the

920 F. Supp. 1449
surface flow and mixing it with the stream. Salinity increases as the river flows through the Safford Valley due to the diversion of the entire stream and the consumptive use of the water, but not the salt, by irrigated crops and other plants. By the time the flow, if any remains, reaches the San Carlos Reservation boundary, the water is degraded to such a degree that the Apache Tribe may be unable to grow the types of vegetable and grain crops that were once raised there

B. Water Quality of the Gila River

There are two interrelated aspects to the water quality issue in this case: flow rate and contamination. The contaminant is salt, which prevents the successful cultivation of a variety of crops.4 The issue of flow rate is, in this case, inseparable from the issue of salt, given the general agreement among the testifying experts that flow rate is a primary factor affecting water quality: at a high level of generalization, the lower the flow rate, the poorer the quality of the water.5

To see the difference in the quality of the water available to the UVDs and that available to the Apache Tribe, one need only compare salinity in the upper valleys and salinity at the reservation boundary. Plaintiffs' expert witnesses conducted extensive field studies in 1993 and 1994, sampling water and measuring flow rates at various sites in the upper valleys and on the reservation. Their data for June 27 and 28, 1994, for example, revealed total dissolved solids (TDS) of 600 milligrams per liter (mg/l) at the head of Safford Valley (below the Brown Canal diversion point).6 In the middle portion of the valley, above Smithville Canal, the TDS increased to 1,250 mg/l. At the lower end of the valley, above the Fort Thomas Canal diversion, TDS was 1,382 mg/l. And at the reservation boundary, TDS was measured at 1,992 mg/l. See Stetson Engineers, Inc., Preliminary Review of the Suitability of the Quality of Gila River Water to Irrigate Lands of the San Carlos Apache Reservation, Arizona I-34 (September 15, 1994) (hereafter "Stetson Water Quality Report"). Further evidence related to these field studies was submitted at trial. Samples taken between August 17 and 19, 1994 revealed a similar trend, although the salinity was even greater in the lower reaches of the upper valleys. Specifically, the engineers measured TDS of 657 mg/l at Brown Canal, 1,638 mg/l at Smithville Canal, 1,690 mg/l at Fort Thomas, and 1,830 mg/l at the reservation boundary.7

The evidence at trial also demonstrated unequivocally that flow rate is inversely related to salinity. Plaintiffs' experts employed data collected by John D. Hem8 in

920 F. Supp. 1450
the 1940s to prepare graphic depictions of the relationship between flow rate and electrical conductivity (EC) as the river flows downstream from Blue Creek, New Mexico, to Calva, Arizona. The evidence shows that as the flow rate decreases in the Safford Valley, EC rises. In fact, the difference can be quite dramatic, with EC levels often as low as 1,000 microSiemens per centimeter (cS/cm) in the central reach of Safford Valley and as high as 5,000 cS/cm on the reservation. See Stetson Water Quality Report at I-22, II-12 to II-14, Table II-4 & Figure II-3. In graphical representations, the rapid divergence of lines representing EC and flow rate is apparent. EC begins to rise at the head of Safford Valley, while flow rate declines. Salinity peaks in the neighborhood of Fort Thomas, about 25 miles downstream from Safford. Beyond Fort Thomas, at the bottom of the Safford Valley, the water quality stabilizes or improves....

To continue reading

Request your trial
5 practice notes
  • San Carlos Apache Tribe v. U.S., No. CV 99-255 TUC DCB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 9 Julio 2003
    ...Cir.1941); United States v. Gila Valley Irrigation Dist., 804 F.Supp. 1 (D.Ariz.1992); United States v. Gila Valley Irrigation Dist., 920 F.Supp. 1444 (D.Ariz.1941). Currently, the Globe Equity Decree is being overseen, interpreted, and enforced by the United States District Court for the D......
  • Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, Civil Action No. 16–1534 (JEB)
    • United States
    • U.S. District Court — District of Columbia
    • 7 Marzo 2017
    ...L.Ed. 1089 (1905) ; United States v. Adair , 723 F.2d 1394, 1409, 1411 (9th Cir. 1983) ; United States v. Gila Valley Irrigation Dist. , 920 F.Supp. 1444, 1448 (D. Ariz. 1996) ). Absent any colorable argument that the reserved water rights here extend to the right to access religiously pure......
  • Hopi Tribe v. United States, No. 2014–5018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 2 Abril 2015
    ...others from practices that reduce the quality of water feeding the reservation. See United States v. Gila Valley Irrigation Dist., 920 F.Supp. 1444, 1454–55 (D.Ariz.1996) (enjoining upstream junior appropriators from practices that reduce quality of water feeding an Indian reservation, purs......
  • United States v. Gila Valley Irrigation Dist., Nos. 14-16942
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 13 Junio 2017
    ...river before it reaches Cosper's Crossing, in disregard of senior rights downstream. See United States v. Gila Valley Irrigation Dist. , 920 F.Supp. 1444, 1462–66 (D. Ariz. 1996), aff'd , 117 F.3d 425 (9th Cir. 1997) (Mem.). At least one of Freeport's pending applications involved a request......
  • Request a trial to view additional results
5 cases
  • San Carlos Apache Tribe v. U.S., No. CV 99-255 TUC DCB.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 9 Julio 2003
    ...Cir.1941); United States v. Gila Valley Irrigation Dist., 804 F.Supp. 1 (D.Ariz.1992); United States v. Gila Valley Irrigation Dist., 920 F.Supp. 1444 (D.Ariz.1941). Currently, the Globe Equity Decree is being overseen, interpreted, and enforced by the United States District Court for the D......
  • Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs, Civil Action No. 16–1534 (JEB)
    • United States
    • U.S. District Court — District of Columbia
    • 7 Marzo 2017
    ...L.Ed. 1089 (1905) ; United States v. Adair , 723 F.2d 1394, 1409, 1411 (9th Cir. 1983) ; United States v. Gila Valley Irrigation Dist. , 920 F.Supp. 1444, 1448 (D. Ariz. 1996) ). Absent any colorable argument that the reserved water rights here extend to the right to access religiously pure......
  • Hopi Tribe v. United States, No. 2014–5018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals for the Federal Circuit
    • 2 Abril 2015
    ...others from practices that reduce the quality of water feeding the reservation. See United States v. Gila Valley Irrigation Dist., 920 F.Supp. 1444, 1454–55 (D.Ariz.1996) (enjoining upstream junior appropriators from practices that reduce quality of water feeding an Indian reservation, purs......
  • United States v. Gila Valley Irrigation Dist., Nos. 14-16942
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 13 Junio 2017
    ...river before it reaches Cosper's Crossing, in disregard of senior rights downstream. See United States v. Gila Valley Irrigation Dist. , 920 F.Supp. 1444, 1462–66 (D. Ariz. 1996), aff'd , 117 F.3d 425 (9th Cir. 1997) (Mem.). At least one of Freeport's pending applications involved a request......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT