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

Filing 61

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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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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