The Gila River Indian Community failed to show evidence that four upstream wells “significantly diminish” the flow of federally reserved water for the tribe.
By Joe Duhownik, Courthouse News Service
Four privately owned wells along Arizona’s Gila River may be reopened after a Ninth Circuit panel found little likelihood that the wells extract a significant amount of surface water federally reserved for the Gila River Indian Community downstream.
The federal appeals court reversed a lower court order to seal the four wells, which feed eight parcels of land owned and operated by a group of ranchers who the indigenous tribe says are in violation of a nearly century-old agreement that reserves the entirety of the Gila River’s surface water for the tribe. Because of a complicated legal distinction between river subflow — underground water classified as surface water — and surrounding groundwater, the three-judge panel says it’s unclear how much water granted to the tribe is actually eaten by the wells.
Thursday, citing a low likelihood that the wells take a notable amount from the river itself, the Ninth Circuit panel declared the order sealing the wells to be an overly broad remedy, sending the litigation back to the trial court for further factfinding.
A river’s subflow is defined as water running underneath and parallel with a river with substantially the same gradient and chemical composition as the surface water above — though the line between subflow and flowing groundwater is murky.
“Even if we accepted the assumptions as fact, and equated ‘Gila River-derived water’ with ‘subflow,’ the evidence is still well short of proving that the wells ‘appreciably’ diminish the flow of the River,” U.S. Circuit Judge Jay Bybee wrote in a 54-page opinion published Thursday morning.
The Gila River Indian Community sued the ranchers in 2019 for violating the agreement, claiming that at least some of the water pumped by four wells is Gila River subflow. The ranchers offered an expert report claiming that only 2.6% of the water pumped by the wells, each more than 1,000 feet from the river, come from its subflow. They claim that the presence of clay around the wells is enough to keep more Gila River water from leaking in.
The tribe countered that the percentage of water taken is irrelevant, because even a small amount can alter the river’s hydrology and lead to water degradation and other issues downstream. It rejected the defendants’ offer to return whatever percentage of subflow they take for the same reasons.
The trial judge sided with the tribe, concluding that the wells in fact took water from the river’s subflow.
The Ninth Circuit disagreed.
“What matters, at bottom, is whether the wells’ pumping ‘diminishes’ the Gila River,” wrote Bybee, a George W. Bush appointee. “In reaching its conclusion, the district court failed to grapple with the model’s assumptions and the low percentages the model reported. Nor did it explain why the model, standing alone, constituted clear and convincing evidence that these wells pump subflow.”
At oral arguments in February, the ranchers argued that the federal court lacked jurisdiction over wells because the parties aren’t named in the original consent decree from 1935. Further, they claimed that if the water in question is groundwater and not Gila River subflow, then the water is governed by Arizona state court rather than federal court.
Whether the defendants existed at the time to sign the consent decree is irrelevant to whether they must abide by its authority, the panel found.
The panel also concluded that both federal court and state court have jurisdiction over the issue, because both federal and state law determine what water can be pumped and where. But because neither federal or state court holds “exclusive jurisdiction,” the claims are still ripe in federal court.
“In an ordinary case where federal and state courts each claim jurisdiction over a matter, the general rule is that the court that first resolves the merits has jurisdiction,” Bybee wrote. “At oral argument on appeal, both parties agreed that if we held that neither forum had prior exclusive jurisdiction, jurisdiction would be proper in federal court. We agree.”
Bybee was joined on the panel by U.S. Circuit Judge Bridget Bade, a Donald Trump appointee, and U.S. Circuit Judge Richard Clifton, a fellow George W. Bush appointee.
It’s unclear how soon the wells may be opened, depending on next steps taken by the trial judge. Neither side replied to requests for comment.
