United States District Court, D. Arizona
G. Campbell, United States District Judge
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).
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.
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.
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.
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.
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.
Rule 12(b)(1) Standard.
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).
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.