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AK-Chin Indian Community v. Central Arizona Water Conservation District

United States District Court, D. Arizona

July 27, 2017

Ak-Chin Indian Community, Plaintiff,
Central Arizona Water Conservation District, et al., Defendants.


          David G. Campbell United States District Judge.

         Defendant 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.

         I. Background.

         This dispute concerns Plaintiff Ak-Chin Indian Community's right to water. Doc. 1. The following factual allegations are relevant. Id.

         In 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.

         In 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).

         In 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.

         Since 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., ¶¶ 26-28.

         CAWCD 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.

         The 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. Ak-Chin asserts:

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 Meyers”).

         Ak-Chin 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.

         Ak-Chin seeks a declaratory judgment affirming its federal water rights, as well as a permanent injunctive preventing CAWCD from refusing to deliver to ...

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