In a complex water rights dispute with roots stretching back nearly a century, the 9th Circuit Court of Appeals issued a mixed ruling that both federal and state courts may exercise jurisdiction over disputes involving groundwater allegedly drawn from the Gila River subflow, rejecting arguments that either forum holds exclusive authority.
The case stems from a legal challenge brought by the Gila River Indian Community (GRIC) and the San Carlos Apache Tribe against two farming families in Arizona, the Schoubroeks and Sextons, who were accused of illegally pumping water tied to the mainstem of the Gila River.
In an opinion written by Judge Jay Bybee on July 24, the three-judge panel affirmed in part, reversed in part and remanded the case to the District Court of Arizona for further proceedings. The ruling highlighted the complex intersection of federal Indian water rights, Arizona’s bifurcated water law and the 1935 “Globe Equity Decree.”
“With respect to jurisdiction, GRIC argued that the district court has the exclusive power to hear this case; Defendants claimed that a special ongoing state court proceeding in Arizona is the exclusive forum,” Bybee wrote.
In the end, Bybee continued, neither party has it quite right. While the district court has jurisdiction, it is not exclusive. “We conclude that under Arizona’s complex water scheme, GRIC has shown at most that Defendants may be drawing some water that originated in the Gila River, but it may turn out that such water does not meet the legal definition of subflow or that the amount is de minimis,” Bybee said.
Background, consent decree
The dispute traces back to the 1935 Globe Equity Decree, a consent decree entered in federal court that allocated Gila River surface water rights to parties including the federal government, GRIC and landowners along the river. The decree defined and resolved the parties’ water rights by specifying their priority dates, the volume of water allotted to each and the designated diversion points.
In 2019, the Tribe filed suit in the U.S. District Court for the District of Arizona, alleging that four wells—three operated by the Sexton family and one by the Schoubroeks—were unlawfully pumping subflow from the Gila River without a decree right. GRIC sought an order declaring the wells in violation, directing the Gila Water Commissioner to seal them, and requiring the defendants to stop pumping.
The ranchers moved to dismiss, arguing that jurisdiction belonged to the ongoing state adjudication process. The district court disagreed, finding it had jurisdiction under federal statutes on cases brought by Tribes, and rejected the idea that it should abstain in favor of state proceedings.
Both sides then filed motions for summary judgment. The district court sided with the Tribe, ruling that the claims weren’t barred by previous litigation and the wells were pumping Gila River subflow in violation of GRIC’s rights. It ordered all four wells shut down. After denying the defendants’ motions for reconsideration, the court issued a final judgment in September 2023, finding that the wells had used Gila River subflow between 2016 and 2021 without a decree right.
Opinion
The decision draws from Arizona’s complex dual water system, which differentiates between appropriable surface water and percolating groundwater. Subflow, although underground, is treated as surface water when it is part of the river’s flow. As the opinion notes, subflow is “a purely legal, not scientific, term,” and Arizona courts have acknowledged the difficulty of clearly defining it. In this case, the burden of proof rests initially with GRIC to show—by clear and convincing evidence—that the defendants’ wells either lie within the subflow zone or are pumping water that diminishes river flow.
GRIC and the defendants hired experts to analyze the wells. The defendants’ expert, Clear Creek Associates, conceded that some of the water pumped by three of the four wells originated from the Gila River—specifically, between 0.3% and 3.5%. Yet, the 9th Circuit found this admission did not resolve the legal question.
In reversing summary judgment, Bybee highlighted “this is a straightforward, although factually complex, case over water rights under Arizona’s bifurcated system.” The judges found that the district court improperly concluded there were no material factual disputes and remanded the case for further proceedings to determine whether the wells in question meet the legal definition of subflow under Arizona law.
Ranchers argued that Arizona’s adjudication court had exclusive jurisdiction over their water rights, citing a 2007 judgment directing disputes involving nonparties to the Globe Decree to that forum. But the 9th Circuit found the court never exercised jurisdiction over their claims, despite filings dating back to 1985.
Comparing the situation to “taking a number at the DMV,” the panel said merely being in line doesn’t confer exclusivity. The court also rejected the argument that GRIC was barred from suing due to a 2007 case dismissal, noting the earlier agreement permitted future suits against landowners who failed to meet its terms.
The case now returns to the district court, where parties will have to present more detailed evidence to determine whether the wells are indeed tapping into protected Gila River subflow. —Charles Wallace, WLJ contributing editor
