US v. Gila Valley Irr. Dist.

• Decision Date: 18 September 1992
• Docket Number: GLOBE EQUITY No. 59 (JCC).
• Parties: 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.
• Court: U.S. District Court — District of Arizona

804 F. Supp. 1

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 (JCC).

United States District Court, D. Arizona.

September 18, 1992.

COPYRIGHT MATERIAL OMITTED

Brent F. Moody, Ryley, Carlock & Applewhite, Phoenix, Ariz., Gila Water Com'r Co-Counsel Riney B. Salmon, II, Phoenix, Ariz., L. Anthony Fines, Stompoly & Stroud, P.C., Tucson, Ariz., Steven Carroll, F. Patrick Barry, Dept. of Justice Washington, D.C., Alfred S. Cox, Cox & Cox, Phoenix, Ariz., Pamela L. Vining, Vining & Martin, Phoenix, Ariz.

Joseph E. Clifford, Katherine L. Mead, Sandra Hafner Lee, Asst. Attys. Gen., Phoenix, Ariz., Robert B. Hoffman, Snell & Wilmer, Phoenix, Ariz., Michael R. Urman, DeConcini, McDonald, Brammer, Yetwin & Lacy, Phoenix, Ariz., James P. Watts, Stephens, Watts, Day & Brown, Phoenix, Ariz., Burton M. Apker, Apker, Apker, Haggard & Kurtz, P.C., Phoenix, Ariz., Thomas M. Murphy, Murphy, Goering, Roberts & Holt, P.C., Tucson, Ariz., Ralph E. Hunsaker, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears, Phoenix, Ariz., Kenyon Udall, Bryce & Udall, Safford, Ariz., Lauren J. Caster, Fennemore Craig, Phoenix, Ariz.

John A. Buttrick, Brown & Bain, Phoenix, Ariz., Michael A. Curtis, Steven B. Bennett, Phoenix, Ariz., Michael F. McNulty, Colleen Cacy, Streich, Lang, Weeks & Cardon, P.A., Tucson, Ariz., Marc G. Simon, Snell & Wilmer, Tucson, Ariz., Joe Sparks, John H. Ryley, Sparks & Siler, P.C., Scottsdale, Ariz., Terese Neu Richmond, Chief Counsel, Dept. of Water Resources, State of Ariz., Phoenix, Ariz., Katherine Miller, Office of the Field Sol., Phoenix, Ariz.

FINAL MEMORANDUM AND ORDER

COUGHENOUR, District Judge, sitting by designation.

I. Background

This phase of United States, et al. v. Gila Valley Irrigation District, et al., Globe Equity No. 59, (hereafter "Globe Equity") concerns the enforcement of the Globe Equity Consent Decree of June 29, 1935, (hereafter "Decree") for the benefit of the Gila River Indian Community and the San Carlos Apache Tribe. The Court held trial November 12-22, 1991, and heard closing arguments February 24 and 25, 1992. The parties presented evidence and argument related to Counts I-V of the San Carlos Apache Tribe's Complaint in Intervention, and Counts IX-XII of the Gila River Indian Community's Complaint in Intervention.

Briefing has been submitted by the San Carlos Apache Tribe (hereafter "Apache Tribe"), the Gila River Indian Community (hereafter "GRIC" or "Indian Community"), the United States, the San Carlos Irrigation and Drainage District (SCIDD), the State of Arizona, the Upper Valley Defendants (hereafter "UVDs" or "Upper Valleys"), and the Gila River Water Commissioner. The UVDs include the Gila Valley Irrigation District, the Franklin Irrigation District, all of the canal companies diverting water from the Gila river in the upper valleys (Safford and Duncan-Virden) and all of the landowners and water users in the upper valleys with rights to Gila River water, as set out in the Decree.

This memorandum and order analyzes the issues currently before the Court, and expresses the Court's final orders on these issues. An opinion, to be published, will follow this memorandum and order.

II. Facts

The Gila River flows in New Mexico and Arizona, ultimately joining the Colorado River in its journey to the Gulf of California. The river travels through farmlands in the Duncan-Virden valley, the Safford valley, and then through the San Carlos Apache Reservation. Coolidge Dam holds the waters of the Gila in the San Carlos Reservoir, and allows the water to pass down the channel to Ashurst-Hayden Dam. At Ashurst-Hayden, the waters of the Gila are diverted by the San Carlos Indian Irrigation Project (SCIIP) for use on the lands of the Gila River Indian Reservation, on the lands of the San Carlos Irrigation and Drainage District (SCIDD), and the lands of the Florence-Casa Grande Project not within SCIIP.

Because there is greater demand for water than the Gila River can supply, the many people who hope to benefit from the river have periodically returned to this forum to resolve their disputed claims on the river. The rights of the various claimants to the Gila have been thoroughly, albeit confusingly, described in the 1935 Consent Decree, which this Court must interpret to determine these conflicting claims.

This phase of Globe Equity, due to the intervention of the San Carlos Apache Tribe, invites the Court to consider the historical context as it relates to the Apaches. The UVDs have strenuously argued that the situation of the Tribe is not relevant to the interpretation of the Decree. True, the Decree itself makes no mention of the circumstances of the Tribe. However, to overlook the conditions prevailing on the Reservation would seem to this Court to be yet another instance of the manifest injustice which has assailed the Tribe at virtually every turn since their dealings with the United States and its citizens began. History and present conditions should play some role in the analysis of the Decree. Just as the Court considers the generations of farmers in the Upper Valleys, so will it consider the continual derogation of the Tribe's rights to the Gila river. To approach this case from a less informed perspective would be inappropriate.

To say that the Tribe is poor is to severely understate the plight of the Apaches. The infant mortality rate is seven times the national average. Tr., Nov. 18, 1991, at 90 (Testimony of Raleigh Thompson). Malnutrition abounds. Housing varies from inadequate to non-existent, as does running water and electricity. Id. at 75-77. Unemployment is not just rampant, it is the rule; the exceptions are the two in ten Apaches who have work. Id. at 62-63.

The situation of the Tribe owes allegiance in large part to the history of the reservation system, and the particular oppression for which the Apaches were singled out. Rather than belabor this point, more eloquently made by scholars and the Apaches themselves, the Court makes note of just one example — the life of Eskiminzin, the Aravaipa leader who time after time made his peace with the U.S. government, only to suffer the massacre of his family and people, the placement of his people on semi-arid land considered a wasteland by Arizonans, and the destruction of his own farm on the San Pedro. See, Sinclair Browning, Enju: The Life and Struggle of an Apache Chief from the Little Running Water (1982). Ultimately, Eskiminzin was jailed indefinitely in Alabama, on the suspicion of harboring a fugitive. His life was a testament to the patience of the Apaches, their dedication to family and self-determination. The miracle, if there be any, of the relationship between the U.S. government and these sovereign nations is that the spirit of the Apaches has not been extinguished.

Today, the Apaches, like other claimants under the Decree, ask for what they were promised by our ancestors — the right to farm their lands on the Gila River. The testimony of members of the Tribe indicates that the Apaches have farmed, and will continue to farm their land if given the opportunity.

III. Statement of Issues

This phase of Globe Equity presents the Court with the following issues:

(1) The extent of the Apache Tribe's rights to the flow of the Gila River;

(2) "Carryovers" of apportionments from one year to the next;

(3) The 30,000 acre-feet reserve for a fishery in the San Carlos Reservoir;

(4) Water transfer procedures;

(5) "Storage" of water in the Reservoir, and "1924(b)" apportionments of stored water;

(6) Diversions for lands not "then being irrigated," and stacking of water for lands not being irrigated; and (7) Diversions of water in excess of 1/80th cubic-foot per second (cfs).

Certain of these issues are resolved with finality here. Others, as a result of the parties' agreement to form a Rulemaking Committee, will be deferred. The Rules Committee shall consist of representatives from the United States, the Gila River Indian Community, the San Carlos Apache Tribe, the Upper Valley Defendants, the San Carlos Irrigation and Drainage District, and the Water Commissioner. See, Pretrial Order at 18. The Rules Committee shall suggest to the Court various rules and regulations regarding certain provisions of the Decree. The Committee is not empowered to modify the Decree or any order of the Court. The parties to the Decree retain the right to object to proposed rules, and to argue that no rules or regulations are necessary with respect to any provision of the Decree. The Committee, according to the agreement represented in the Pretrial Order, shall have six months from the date of its formation to submit agreed-upon proposed rules, and alternative proposed rules. Each party will then have thirty days to comment on rules, recommendations, and alternatives. After the comment period has expired, the Court may adopt proposed rules and regulations, to the extent that the Court finds that they do not constitute modifications of the Decree or court orders.

The parties have agreed that the Rules Committee will address (1) the sudden freshets clause of Article V, (2) discontinuation of diversions for violations, (3) the measuring device clause of Article XII, (4) the role of the Water Commissioner in interpretation of Article VIII(4), (5) the adoption of a "call" system for administration of Article V, and (6) procedures for adopting rules after approval or rejection by the Court. Other issues may be considered by the Rules Committee, either at the direction of the Court in this Order and its oral orders, or upon approval of a request to submit an issue to the Committee.

IV. The Apache Tribe's Rights to the Flow of the Gila River

The Apache Tribe, in Count One of its complaint in intervention, seeks to establish that, under the...