United States District Court, D. Arizona
G. Campbell United States District Judge.
Central Arizona Water Conservation District
(“CAWCD”) has filed a motion to join parties
pursuant to Federal Rule of Civil Procedure 19. Doc. 26. The
motion is fully briefed and no party has requested oral
argument. Docs. 35, 44. For the reasons stated below, the
motion will be granted in part.
dispute concerns Plaintiff Ak-Chin Indian Community's
right to water. Doc. 1. The following factual allegations are
1978, “Congress approved a settlement intended to
‘meet the emergency needs of the Ak-Chin
community' and to eventually provide Ak-Chin with
‘a permanent supply of water in a fixed amount' of
85, 000 acre-feet (AF) per year.” Id., ¶
16. The 1978 Act required that the permanent water supply be
made available to Ak-Chin “as soon as possible, but in
no event later than the expiration of the twenty-five year
period following the date of the enactment of this
Act.” Id., ¶ 17.
1984, the United States and Ak-Chin amended the terms of the
1978 Act. See Ak-Chin Water Rights Settlement Act of
1984 (the 1984 Act), Act of Oct. 19, 1984, Pub. L. No.
98-530, 1984 U.S.C.C.A.N. (98 Stat. 2698). In exchange for
the United States agreeing to advance the deadline for making
a permanent water supply available to Ak-Chin, Ak-Chin agreed
to several modifications to its rights under the 1978 Act.
Id. Specifically, the United States committed to
deliver annually a permanent water supply of not less than
75, 000 AF “from the main project works of the Central
Arizona Project [(“CAP”)] to the south east
corner of the Ak-Chin Indian Reservation” commencing
before January 1, 1988. 1984 Act §2(a). The 1984 Act
specified that this water would be derived from two specific
sources: the first 50, 000 AF from water previously
authorized for use on the lands of the Yuma Mesa Division of
the Gila Project, and the next 25, 000 AF “from the CAP
water allocated to Ak-Chin in the Notice of Final Water
Allocations to Indians and non-Indian Water Users and Related
Decisions (48 Fed. Reg. 12445, March 24, 1983).” 1984
Act, § 2(f)(2).
addition to the 75, 000 AF of water, the 1984 Act provides
that “[i]n any year in which sufficient surface water
is available, the Secretary [of the Interior] shall deliver
such additional quantity of water as is requested by
[Ak-Chin] not to exceed ten thousand acre-feet.” 1984
Act § 2(b). This additional 10, 000 AF is referred to by
the parties as “§ 2(b) water.” The 1984 Act
does not specify a source for § 2(b) water, but the 1984
Act does state that Ak-Chin's right to receive the water
is limited only by the availability of (1) “sufficient
surface water” and (2) “sufficient capacity . . .
in the main project works” of the CAP. Id.
1984, the United States and Ak-Chin have entered into several
additional agreements setting out the United States'
water delivery obligations. Doc. 1, ¶ 23. In 1985, the
United States and Ak-Chin entered into a contract (the 1985
Contract) stating that “Ak-Chin must submit a schedule
of its desired water deliveries each year to the Secretary or
the Secretary's designee by October 1 of the year
preceding the scheduled deliveries.” Id.,
¶¶ 24-25 (citing “1985 Contract, ¶
7(a)(2)”). After the Secretary confirms that
Ak-Chin's request complies with the governing statute and
contract, the Secretary transmits Ak-Chin's water order
to CAWCD to schedule water deliveries. Id.,
operates the CAP pursuant to a separate operating agreement
with the United States, which obligates CAWCD to make
specific water deliveries on behalf of the United States,
including of water to which Ak-Chin is entitled.
Id., ¶¶ 29-31. Ak-Chin alleges that
“on numerous occasions after receiving Ak-Chin's
annual water delivery order, CAWCD has expressed its opinion
that the order calls for the delivery of more water than
Ak-Chin is legally entitled to receive, ” and
“the general position urged by CAWCD is that Ak-Chin is
only entitled to receive 75, 000 AF of water in any given
year.” Id., ¶¶ 32-33. Ak-Chin
asserts that the United States has “repeatedly rejected
CAWCD's interpretation and affirmed that Ak-Chin is
entitled to receive the § 2(b) water in any year when
‘sufficient surface water' and CAP canal capacity
are available.” Id., ¶ 34. To date,
“CAWCD [has] always responded to the United States'
reaffirmation of Ak-Chin's rights by agreeing to deliver
Ak-Chin's full water order, even in those years when that
order exceeded 75, 000 AF.” Id., ¶ 35.
current dispute arose out of Ak-Chin's 2017 water order,
submitted to the Secretary's designee on October 1, 2016.
Id., ¶ 36. Ak-Chin requested that 89, 174 AF of
water be scheduled for delivery, comprising the full 85, 000
AF that Ak-Chin asserts it is entitled to under the 1984 Act
and 1985 Contract, as well as 4, 174 AF to cover transmission
losses occurring between the CAP diversion point and the
statutorily fixed delivery point. Id., ¶ 37.
After confirming that sufficient surface water and canal
capacity are available in 2017 to meet Ak-Chin's full
order, the United States transmitted Ak-Chin's order to
CAWCD for scheduling of deliveries. Id., ¶ 38.
Instead of scheduling the deliveries as requested, CAWCD
unilaterally contacted at least one third party that was in
negotiations to receive water from Ak-Chin and informed that
third party that CAWCD would not deliver water to it because
Ak-Chin had ordered more water than CAWCD believed Ak-Chin is
entitled to receive.
Id., ¶ 39. CAWCD has since agreed to schedule
Ak-Chin's full water order for delivery in 2017, but has
stated that its agreement constitutes a “one time
accommodation” and that it will not schedule more than
75, 000 AF of water for delivery to Ak-Chin in the future
regardless of the availability of additional surface water
and canal capacity. Id., ¶ 40 (citing
“November 9, 2016 Letter from Thomas McCann to Leslie
asserts that sufficient surface water will be available in
2018 to deliver § 2(b) water, and that Ak-Chin will
request all or substantially all of the § 2(b) water.
Id., ¶ 41. “When the § 2(b) water
and canal capacity are available, and Ak-Chin requests the
water, CAWCD's refusal to deliver the water will deprive
the Community of the federal water rights secured for it by
the 1984 Settlement Act.” Id., ¶ 42.
Ak-Chin alleges that this threat, if acted upon, will force
Ak-Chin to breach contracts it has in place with third
parties or force Ak-Chin to limit the amount of water used
for farming operations. Id., ¶ 43. Ak-Chin
asserts that, “[e]ven if CAWCD does not follow through
on its threat, its declared intent to improperly limit water
deliveries to Ak-Chin in future years has the immediate and
damaging effect of limiting Ak-Chin's ability to enter
into long-term water leases and to plan its own water
use.” Id., ¶ 43.
seeks a declaratory judgment affirming its federal water
rights, as well as a permanent injunctive preventing CAWCD
from refusing to deliver to ...