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

United States District Court, D. Arizona

January 12, 2018

Ak-Chin Indian Community, Plaintiff,
Central Arizona Water Conservation District, et. al, Defendants/Counterclaimant/ Crossclaimant, United States of America, et al., Defendant/Crossclaim Defendants.


          David G. Campbell, United States District Judge

         Crossclaim Defendants the United States, Department of the Interior (“DOI”), Bureau of Reclamation (“BOR”), and four officials of the DOI and BOR (collectively, the “United States”) move to dismiss Defendant Central Arizona Water Conservation District's (“CAWCD”) crossclaim against them under Rules 12(b)(1) and 12(b)(6). The motion is fully briefed and no party has requested oral argument. Because the Court lacks jurisdiction over the crossclaim, it will grant the motion under Rule 12(b)(1).

         I. Background.

         Plaintiff Ak-Chin Indian Community sued CAWCD to establish its right to certain water. See Doc. 1. CAWCD moved to join the United States as a necessary party defendant under Rule 19, and the Court granted the motion. See Doc. 61. CAWCD then brought a crossclaim against the United States regarding CAWCD's obligation to provide the water to Ak-Chin on behalf of the United States. See Doc. 65. The crossclaim seeks injunctive and declaratory relief. Id.

         The history of the underlying dispute is summarized in the Court's prior order of July 27, 2017. See Doc. 61 at 1-5. Relevant facts are repeated here.

         CAWCD operates and maintains the Central Arizona Project (“CAP”) pursuant to an operating agreement with the United States. Doc. 65 ¶¶ 4-5. As part of a 1984 settlement with Ak-Chin, the United States committed to deliver not less than 75, 000 acre-feet (“AF”) per year “from the main project works of the [CAP] to the southeast corner of the Ak-Chin Indian Reservation.” Ak-Chin Water Rights Settlement Act of 1984, Pub. L. No. 98-530, § 2(a), 98 Stat. 2698 (the “1984 Act”). Additionally, “[i]n any year in which sufficient surface water is available, ” the DOI “shall deliver such additional quantity of water as is requested by the Community not to exceed ten thousand acre-feet.” Id. § 2(b). The 1984 Act identifies the CAP as the source of the mandatory 75, 000 AF, but does not identify a source for the additional 10, 000 AF. See Doc. 65 ¶¶ 21-22. The parties refer to this additional 10, 000 AF as “§ 2(b) water, ” and they dispute whether and under what circumstances CAWCD is obligated to supply it.

         Pursuant to a contract between the United States and Ak-Chin, Ak-Chin submits an annual schedule of its desired water deliveries to the DOI, which reviews the schedule for compliance with governing statutes and contracts and transmits it to CAWCD to arrange the water deliveries. Doc. 1 ¶¶ 24-28. CAWCD alleges that the United States transmitted a 2017 schedule that included § 2(b) water and would have forced CAWCD to supply water in excess of its obligations. Doc. 65 ¶ 30. The United States instructed CAWCD that the § 2(b) water was to come from “any unused Indian contract water.” Id. ¶ 31.

         CAWCD argues that various statutes allocate a total of 136, 645 AF of CAP water for use by the Ak-Chin and San Carlos Apache tribes each year. See Doc. 65 ¶¶ 24-29, 51. Further, CAWCD asserts that forcing it to supply § 2(b) water from “unused Indian contract water” violates the 2007 CAP Repayment Stipulation from prior litigation between CAWCD and the United States. Doc. 65 ¶¶ 32-33; Doc. 65-1 at 49. Because § 2(b) water is “Excess Water” under the Stipulation, CAWCD argues that it has the “exclusive right in its discretion to sell or use [it] for any authorized purpose of the CAP.” Id.

         II. Rule 12(b)(1) Standard.

         Federal courts are courts of limited jurisdiction, “possess[ing] only that power authorized by Constitution and statute[.]” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Once jurisdiction is challenged in a Rule 12(b)(1) motion, it “is to be presumed that a cause lies outside this limited jurisdiction, and the burden of establishing the contrary rests upon the party asserting jurisdiction[.]” Id. (internal citations omitted). To establish jurisdiction over its crossclaim against the United States, CAWCD must demonstrate both “statutory authority granting subject matter jurisdiction” over the claims and “a waiver of sovereign immunity.” E.J. Friedman Co. v. United States, 6 F.3d 1355, 1357 (9th Cir. 1993) (internal quotations and citation omitted). Unless CAWCD “satisfies the burden of establishing that its action falls within an unequivocally expressed waiver of sovereign immunity by Congress, it must be dismissed.” Dunn & Black, P.S. v. United States, 492 F.3d 1084, 1088 (9th Cir. 2007).

         III. Discussion.

         CAWCD asserts two bases for a waiver of sovereign immunity: the Reclamation Reform Act of 1982 (the “RRA”), 43 U.S.C. § 390uu, and the Administrative Procedure Act (the “APA”), 5 U.S.C. §§ 702, 704, 706. Doc. 65 ¶¶ 39, 43.

         A. ...

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