Ak-Chin Indian Community v. Central Arizona Water Conservation District
Filing
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ORDER granting in part and denying in part 26 Motion for Joinder of Additional Parties. The United States shall respond to Ak-Chin's complaint on or before 9/1/2017. Signed by Judge David G Campbell on 7/27/2017.(DGC, nvo)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Ak-Chin Indian Community,
Plaintiff,
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ORDER
v.
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No. CV-17-00918-PHX-DGC
Central Arizona Water Conservation
District, et al.,
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Defendants.
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Defendant Central Arizona Water Conservation District (“CAWCD”) has filed a
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motion to join parties pursuant to Federal Rule of Civil Procedure 19. Doc. 26. The
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motion is fully briefed and no party has requested oral argument. Docs. 35, 44. For the
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reasons stated below, the motion will be granted in part.
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I.
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Background.
This dispute concerns Plaintiff Ak-Chin Indian Community’s right to water.
Doc. 1. The following factual allegations are relevant. Id.
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In 1978, “Congress approved a settlement intended to ‘meet[] the emergency
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needs of the Ak-Chin community’ and to eventually provide Ak-Chin with ‘a permanent
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supply of water in a fixed amount’ of 85,000 acre-feet (AF) per year.” Id., ¶ 16. The
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1978 Act required that the permanent water supply be made available to Ak-Chin “as
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soon as possible, but in no event later than the expiration of the twenty-five year period
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following the date of the enactment of this Act.” Id., ¶ 17.
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In 1984, the United States and Ak-Chin amended the terms of the 1978 Act. See
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Ak-Chin Water Rights Settlement Act of 1984 (the 1984 Act), Act of Oct. 19, 1984, Pub.
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L. No. 98-530, 1984 U.S.C.C.A.N. (98 Stat. 2698). In exchange for the United States
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agreeing to advance the deadline for making a permanent water supply available to Ak-
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Chin, Ak-Chin agreed to several modifications to its rights under the 1978 Act. Id.
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Specifically, the United States committed to deliver annually a permanent water supply
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of not less than 75,000 AF “from the main project works of the Central Arizona Project
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[(“CAP”)] to the south east corner of the Ak-Chin Indian Reservation” commencing
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before January 1, 1988. 1984 Act §2(a). The 1984 Act specified that this water would be
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derived from two specific sources: the first 50,000 AF from water previously authorized
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for use on the lands of the Yuma Mesa Division of the Gila Project, and the next 25,000
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AF “from the CAP water allocated to Ak-Chin in the Notice of Final Water Allocations
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to Indians and non-Indian Water Users and Related Decisions (48 Fed. Reg. 12445,
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March 24, 1983).” 1984 Act, § 2(f)(2).
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In addition to the 75,000 AF of water, the 1984 Act provides that “[i]n any year in
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which sufficient surface water is available, the Secretary [of the Interior] shall deliver
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such additional quantity of water as is requested by [Ak-Chin] not to exceed ten thousand
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acre-feet.” 1984 Act § 2(b). This additional 10,000 AF is referred to by the parties as
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“§ 2(b) water.” The 1984 Act does not specify a source for § 2(b) water, but the 1984
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Act does state that Ak-Chin’s right to receive the water is limited only by the availability
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of (1) “sufficient surface water” and (2) “sufficient capacity . . . in the main project
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works” of the CAP. Id.
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Since 1984, the United States and Ak-Chin have entered into several additional
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agreements setting out the United States’ water delivery obligations. Doc. 1, ¶ 23. In
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1985, the United States and Ak-Chin entered into a contract (the 1985 Contract) stating
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that “Ak-Chin must submit a schedule of its desired water deliveries each year to the
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Secretary or the Secretary’s designee by October 1 of the year preceding the scheduled
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deliveries.”
Id., ¶¶ 24-25 (citing “1985 Contract, ¶ 7(a)(2)”).
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After the Secretary
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confirms that Ak-Chin’s request complies with the governing statute and contract, the
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Secretary transmits Ak-Chin’s water order to CAWCD to schedule water deliveries. Id.,
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¶¶ 26-28.
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CAWCD operates the CAP pursuant to a separate operating agreement with the
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United States, which obligates CAWCD to make specific water deliveries on behalf of
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the United States, including of water to which Ak-Chin is entitled. Id., ¶¶ 29-31. Ak-
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Chin alleges that “on numerous occasions after receiving Ak-Chin’s annual water
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delivery order, CAWCD has expressed its opinion that the order calls for the delivery of
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more water than Ak-Chin is legally entitled to receive,” and “the general position urged
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by CAWCD is that Ak-Chin is only entitled to receive 75,000 AF of water in any given
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year.” Id., ¶¶ 32-33. Ak-Chin asserts that the United States has “repeatedly rejected
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CAWCD’s interpretation and affirmed that Ak-Chin is entitled to receive the § 2(b) water
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in any year when ‘sufficient surface water’ and CAP canal capacity are available.” Id.,
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¶ 34. To date, “CAWCD [has] always responded to the United States’ reaffirmation of
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Ak-Chin’s rights by agreeing to deliver Ak-Chin’s full water order, even in those years
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when that order exceeded 75,000 AF.” Id., ¶ 35.
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The current dispute arose out of Ak-Chin’s 2017 water order, submitted to the
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Secretary’s designee on October 1, 2016. Id., ¶ 36. Ak-Chin requested that 89,174 AF of
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water be scheduled for delivery, comprising the full 85,000 AF that Ak-Chin asserts it is
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entitled to under the 1984 Act and 1985 Contract, as well as 4,174 AF to cover
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transmission losses occurring between the CAP diversion point and the statutorily fixed
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delivery point. Id., ¶ 37. After confirming that sufficient surface water and canal
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capacity are available in 2017 to meet Ak-Chin’s full order, the United States transmitted
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Ak-Chin’s order to CAWCD for scheduling of deliveries. Id., ¶ 38. Ak-Chin asserts:
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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.
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Id., ¶ 39. CAWCD has since agreed to schedule Ak-Chin’s full water order for delivery
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in 2017, but has stated that its agreement constitutes a “one time accommodation” and
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that it will not schedule more than 75,000 AF of water for delivery to Ak-Chin in the
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future regardless of the availability of additional surface water and canal capacity. Id.,
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¶ 40 (citing “November 9, 2016 Letter from Thomas McCann to Leslie Meyers”).
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Ak-Chin asserts that sufficient surface water will be available in 2018 to deliver
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§ 2(b) water, and that Ak-Chin will request all or substantially all of the § 2(b) water. Id.,
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¶ 41. “When the § 2(b) water and canal capacity are available, and Ak-Chin requests the
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water, CAWCD’s refusal to deliver the water will deprive the Community of the federal
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water rights secured for it by the 1984 Settlement Act.” Id., ¶ 42. Ak-Chin alleges that
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this threat, if acted upon, will force Ak-Chin to breach contracts it has in place with third
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parties or force Ak-Chin to limit the amount of water used for farming operations. Id.,
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¶ 43. Ak-Chin asserts that, “[e]ven if CAWCD does not follow through on its threat, its
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declared intent to improperly limit water deliveries to Ak-Chin in future years has the
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immediate and damaging effect of limiting Ak-Chin’s ability to enter into long-term
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water leases and to plan its own water use.” Id., ¶ 43.
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Ak-Chin seeks a declaratory judgment affirming its federal water rights, as well as
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a permanent injunctive preventing CAWCD from refusing to deliver to Ak-Chin the
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water to which it is entitled. Id.
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CAWCD has asserted counterclaims against Ak-Chin and third-party claims
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against number of federal officials and agencies that oversee reclamation matters.
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Docs. 16; 33 at 12. CAWCD names the following third-party defendants:
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[The] United States of America; United States Department of the Interior;
Ryan Zinke, Secretary of the Interior; United States Bureau of
Reclamation; Dave Murillo, Acting Commissioner of the Bureau of
Reclamation; Terry Fulp, Regional Director, Lower Colorado Region,
Bureau of Reclamation; and Leslie Meyers, Phoenix Area Office Manager,
Lower Colorado Region, Bureau of Reclamation (collectively, “United
States”)[.]
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Docs. 16; 33 at 12. These persons and entities are collectively referred to by both parties
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as the “United States.” See Docs. 26, 35, 44. The Court will use the same description.
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CAWCD’s current motion seeks to join the United States pursuant to Rule 19(a) in
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two capacities: as third-party defendants in its third-party claim and as co-defendants
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alongside CAWCD in Ak-Chin’s claims. Doc. 26. The first proposed joinder makes no
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sense to the Court. Third-party claims are not asserted through joinder under Rule 19;
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they are asserted through third-party complaints under Rule 14. CAWCD has asserted
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such a third-party complaint.
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Docs. 36-42. The United States has filed a motion to dismiss the complaint on sovereign
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immunity grounds. Doc. 58. Thus, the Court sees no basis for addressing CAWCD’s
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request to “join” the United States in its third-party claim under Rule 19, and will deny
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Doc. 16.
It has been served on the United States.
that request.
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Joinder of the United States as a co-defendant subject to Ak-Chin’s claims is
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another matter, and is properly addressed under Rule 19. Ak-Chin objects to such
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joinder, asserting that (1) the joinder is not required to resolve Ak-Chin’s claims against
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CAWCD, and (2) there is no dispute between Ak-Chin and the United States that would
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constitute a live case or controversy. Id. at 3-6.
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II.
Motion to Join Parties.
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Rule 19(a)(1)(A) states that a nonparty who is subject to service of process and
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whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a
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party if, in the nonparty’s absence, complete relief cannot be accorded among existing
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parties. CAWCD argues that complete relief cannot be accorded among the parties
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without the United States because, if Ak-Chin succeeds, the United States “may ignore
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the [C]ourt’s judgement’ and place conflicting demands upon CAWCD and even Ak-
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Chin, who will be required under res judicata to honor the judgment.” Doc. 26 at 11.
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There is no precise formula for determining whether a particular nonparty should
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be joined under Rule 19(a); the determination is heavily influenced by the facts and
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circumstances of each case. E.E.O.C. v. Peabody W. Coal Co., 610 F.3d 1070, 1081 (9th
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Cir. 2010). In this case, the Court finds a genuine risk that full relief cannot be accorded
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among the parties if the United States is absent. As CAWCD explains:
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Though the Acts and agreements at issue are lengthy and intertwined, the
simple fact remains that CAWCD cannot take any action as to water for
Ak-Chin unless the Secretary provides it with specific direction—direction
that is at his sole discretion as cabined by the 1984 Act and 1985 Contract.
. . . Under Ak-Chin’s theory, if it prevailed in its Complaint, CAWCD
could easily be left with a Hobson’s choice—comply with this Court’s
order or comply with a contrary direction of the Secretary, who would not
be bound to such order.
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Doc. 44 at 3. The Court agrees, and concludes that complete relief – a judgement that
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truly resolves the issues of water distribution to Ak-Chin – cannot be achieved without
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the presence of the United States.
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This case also falls within Rule 19(a)(1)(B)(ii). That provision applies when a
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person (in this case, the United States) claims an interest relating to the subject of the
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action, and is so situated that disposing of the action in its absence may leave an existing
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party (in this case, CAWCD) subject to a substantial risk of incurring inconsistent
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obligations. The United States clearly claims an interest in the water rights at issue in
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this case; it is a party to contracts with Ak-Chin and CAWCD concerning those rights.
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And as noted in the language quoted above, CAWCD could be subject to obligations
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from this case that are inconsistent with directions from the United States if the United
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States is not bound by this action.
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The relief Ak-Chin seeks – a permanent injunction ordering CAWCD to deliver
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water to Ak-Chin – would implicate rights of the United States. CAWCD claims that
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Ak-Chin’s interpretation of the 1984 Act and 1985 Contract is incorrect, and that more is
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required in the evaluation of whether § 2(b) water is available than Ak-Chin has
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presented. The 1984 Act and 1985 Contract are agreements between the United States
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and Ak-Chin. Any interpretation of them could implicate the rights and interests of the
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United States. See Paiute-Shoshone Indians of Bishop Cmty. of the Bishop Colony, Cal.
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v. Los Angeles, 637 F.3d 993, 997-98 (9th Cir. 2011) (finding the United States was a
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required party in an action where the injunctive relief requested would require the Court
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to order the United States to convey title of lands to the plaintiff because “[an] outsider
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not before the court . . . cannot be bound by the judgment rendered.”).
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Ak-Chin argues that the requested relief is narrowly tied to CAWCD, and that any
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risk of the United States failing to be bound by the Court’s judgement is resolved by the
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United States being joined as a third-party defendant in CAWCD’s third-party claims.
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Doc. 35 at 6. But the Court cannot conclude at this early stage of the litigation that any
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relief imposed on Ak-Chin’s claims against CAWCD will also be imposed on CAWCD’s
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claims against the United States. The only way to be sure that the United States is bound
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by the Court’s ruling on the relevant statutes and agreements is to make the United States
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a party. Further, although the United States has been named in CAWCD’s third-party
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complaint, it has moved to dismiss that complaint on sovereign immunity grounds.
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Doc. 58. The Court has not yet ruled on the motion, but the motion at least presents the
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possibility that the United States will not be a party to this litigation through the third-
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party complaint.
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Ak-Chin argues that its view of § 2(b) water rights comports with the view of the
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United States, and there is no dispute between Ak-Chin and the United States that would
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constitute a live case or controversy. But Ak-Chin does not dispute that there is a live
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case or controversy between it and CAWCD, and cites no authority holding that such a
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controversy must also exist between it and the United States for purposes of Rule 19
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joinder. Rule 19 focuses on the circumstances of the existing parties – whether full relief
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can be accorded among them and whether one of them might be subject to inconsistent
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obligations. That standard is satisfied in this case. What is more, the United States has a
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concrete interest in judicial interpretation of the statutes and agreements that determine
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the amount of Ak-Chin’s water entitlement. If the United States agrees with Ak-Chin’s
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position in this litigation, there is nothing that will prevent it from saying so.
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IT IS ORDERED:
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1.
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Defendant CAWCD’s motion (Doc. 26) is granted in part and denied in
part.
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The United States of America; United States Department of the Interior;
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Ryan Zinke, Secretary of the Interior; United States Bureau of
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Reclamation; Dave Murillo, Acting Commissioner of the Bureau of
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Reclamation; Terry Fulp, Regional Director, Lower Colorado Region,
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Bureau of Reclamation; and Leslie Meyers, Phoenix Area Office Manager,
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Lower Colorado Region, Bureau of Reclamation (collectively, “the United
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States”) are joined as defendants in this action under Rule 19(a)(1)(A) and
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(B)(ii).
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3.
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CAWCD’s motion to join the United States under Rule 19 to CAWCD’s
third-party claim is denied.
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The United States shall respond to Ak-Chin’s complaint (Doc. 1) on or
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before September 1, 2017.
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Dated this 27th day of July, 2017.
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